The associate editor at Gastroenterology & Endoscopy News (Website: https://www.gastroendonews.com/) reached out to us here at the Ranchod Law Group to see we could provide assistance in answering a gastroenterology fellow’s question for the “Fellowship FAQs” section of their website.
Gastroenterology & Endoscopy News is a gastroenterology magazine that publishes stories for physicians, providers and fellows. Every month they collect frequently asked questions fellows have about their career path, work-life balance, personal life, and questions about the field in general.
Here is a question which frequently arises among first-year Gastroenterology (GI) fellows:
Melissa Oklan, Esq. Associate Attorney here at the Ranchod Law Group, reformulated the question providing clear and easy to understand legal boundaries the topic, offering insights on how to go about seeking employment in the United States in light of the recent changes in immigration law.
Many foreign medical graduates use either a J1-Visa or an H1B Visa to complete their medical residencies, fellowship, or other specialty medical training in the U.S. The timeline for a J1 or H1B doctor’s job search depends on their current status and their plan for their future immigration status.
J-1 doctors are subject to a two-year home-country physical presence requirement which requires the doctor to return to his or her home country for at least two years at the end of their program. This is also known as the foreign residence requirement.
Thankfully, there are several grounds to waive the foreign residence requirement. A J-1 doctor cannot obtain an H1B Visa or their lawful permanent residence (greencard) until after the J-1 doctor has obtained a waiver. This means that generally, with one important exception discussed below, a J-1 doctor cannot start their post J-1 employment until they get their J waiver approved. The timing for a J-1 doctor’s job search therefore depends on the type of waiver for which the J-1 doctor is going to apply.
One option is the Conrad State 30 Program. Each State’s Public Health Department or its equivalent is allowed to request 30 waivers per year for J-1 doctors. The program may be applied to specialists, as long as, the service area has a shortage of physicians practicing that specialty.
In order to obtain a waiver via the Conrad State 30 Program the doctor must:
- Have an offer of full-time employment at a health care facility in:
- a designated Health Care Professional Shortage Area (HPSA)
- a Medically Underserved Area (MUA)
- a health care facility which serves patients from such a designated area (10 of the 30 requests may be for exchange visitor physicians who will serve at facilities which may not be located within a designated area but which serve a Medically Underserved Population (MUP))
- sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years;
- agree to begin employment at that facility within 90 days of receiving a waiver
Because most states require applicants to apply in September or October of the year before completion of their program, it is best for the doctor to have found employment 6 months prior to September/October. For this reason, J-1 waiver doctors who are going to pursue this waiver option should start looking for jobs a year and a half before their program is expected to end.
A sample timeline for a doctor finishing their program at the end of June 2019 would be to start looking for employment in January 2018 with the goal of securing employment in March 2018 or April 2018 and applying for their Conrad State 30 waiver in September or October as indicated by the state. An immigration attorney who focuses on this specific area of law can guide you and your employer through this process.
J-1 doctors who have a U.S. citizen or a lawful permanent resident spouse or child/ren can apply for an exceptional hardship waiver. Like the Conrad State 30 Program, an exceptional hardship waiver is another option for obtaining a waiver of the foreign residence requirement. If you plan to pursue a waiver under this option you should look for an immigration attorney with extensive experience and success in this particular area of law.
Some of the arguments our office has used to win exceptional hardship waivers for our J-1 doctors in the past include arguments concerning safety conditions for the American relative in the home country, unavailability of adequate care for the medical conditions of the American relative, unsuitability of educational or career options for the American relative, and exceptional hardship to the American’s mental health and in the case of a child, development, if forced to relocate to the J-1 doctor’s home country for two years, among other arguments. Exceptional hardship waivers can take 8 months to one year to adjudicate. In the example above, assuming a doctor is finishing their program at the end of June 2019 they should retain an immigration attorney around March/April 2018 and apply for their exceptional hardship waiver by June 2018. If a J-1 doctor wants to try to obtain an exceptional hardship waiver and use the Conrad State 30 Program as a backup in the event their exceptional hardship waiver is denied then they should apply at least one year before they have to turn in their Conrad State 30 Program application. The benefit of an exceptional hardship waiver over the Conrad State 30 Program is that with an exceptional hardship waiver the doctor does not have to work in a specific area or with a specific patient population.
Again, J-1 doctors cannot obtain an H1B visa or their lawful permanent residence (greencard) until after the J-1 doctor has obtained a waiver like the Conrad State 30 waiver or the exceptional hardship waiver. J-1 doctors can, however, begin employment with an O-1 visa even if their J-1 waiver has not been filed or approved. In order to qualify for an O-1 Visa the doctor must prove three of the following eight categories or other comparable evidence.
The eight designated categories are:
- Receipt of nationally or internationally recognized prizes or awards;
- Membership in associations which require outstanding achievements as judged by recognized by national or international experts in the field;
- Published material about the J-1 doctors and his or her work;
- Original contributions of major significance in the field;
- Authorship of scholarly articles in journals or other major media;
- A high salary or other remuneration for services;
- Participation on a panel, or individually, as a judge of the work of others;
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
J-1 doctors who pursue this option don’t have to work in a specific area or with a specific patient population (unlike the Conrad 30 program) and the O-1 Visa can be renewed year by year indefinitely (unlike H1B Visas). Again, J-1 doctors can get an O-1 even if they haven’t filed for their waiver. Also, premium processing is available for O-1 cases at this time.
Doctors on an H1B Visa should start looking for jobs along with their American peers, around one year before they complete their program.
Ideally an H1B doctor should have secured employment at least 6 months before their fellowship ends. Although premium processing is not currently available for most H1B cases, we expect premium processing to return for all H1B Visas by April 2018.
An H1B change of employer without premium processing can take 2-6 months. One possible problem for H1B doctors is the time limit for their H1B Visas. If an H1B doctor is approaching 6 years on their H1B Visa they need to plan for the process of eventually applying for their lawful permanent residency (greencard) so that they can continue to renew their H1B Visa during the process.
Another problem H1B Visa doctors face is that their current H1B is not subject to the 65,000 per year cap because their employer is a nonprofit entity related to or affiliated with an institution of higher education and those types of employers are cap exempt. If the H1B doctor is leaving the academic setting and trying to get employment with a private employer then they will become subject to the cap.
This answer is only a very brief response to this question. Immigration law is highly specialized and nuanced. It is not good enough to retain just an immigration attorney, you need to retain an immigration attorney with extensive experience working with J-1 and H1B Visa doctors.
Melissa Oklan, Esq.
Ms. Oklan is an Attorney at Ranchod Law. The Ranchod Law Group is a law firm dedicated exclusively to the practice of immigration law with extensive experience and success meeting the immigration needs of J1 and H1B doctors. We represent individuals and businesses throughout the United States and around the world.