Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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J-1 Waiver For Foreign Trained Physicians

Physicians seeking to enter the United States to practice medicine are usually required to obtain further training in the U.S. prior to moving into private, academic or other clinically based practice areas. In large part this further training is due to the stringent licensing requirements found in each state. This additional training requires the physician entering the U.S. to obtain an appropriate visa for the stated purpose, the issued visa is usually a J-1 and unfortunately many restrictions and limitation come with this designation.

The most profound and disruptive requirement of entering the U.S. on a J-1 is known as the 212(e) two-year home country physical presence requirement. Under this section any physician entering the U.S. for Graduate Medical Training under an Educational Commission for Foreign Medical Graduates Certification sponsored program becomes subject to the two-year home residence requirement, regardless of the country of nationality or last residence.

J-1 visas further limit the ability of a Foreign Medical Graduates (FMG) to change of status as long as they remain subject to the two-year home residence obligation. Under federal statute these physicians continue to be barred unless they are granted a waiver based upon one of the designated grounds

Foreign Medical Graduates (FMG) are obliged to fulfill their two-year home country requirement as a prerequisite to obtaining an H or L nonimmigrant visa, or even permanent residency. These FMGs are eligible for waivers on three bases: 1. persecution in the FMG's native country, 2. exceptional hardship to a U.S. citizen or permanent resident spouse or child; or 3. a recommendation from an Interested Government Agency (IGA) to work in a medically underserved area (MUA). Unlike waivers for exchange visitor, an FMG cannot obtain a wavier of the two-year home country requirement based upon a "no objection" statement from his or her home country.

Persecution-Based Waivers

This area represents the most difficult path to obtaining a waiver especially for Filipino nationals. The reason for such difficulty is the FMG must show that he or she "would be subjected to persecution" if forced to return to the Philippines. Documentation must be submitted that circumstances exist in the Philippines that if the FMG were to return to his country it would result in physical or mental persecution. The difficulty of presenting such is self-apparent. It is for this reason that a Physician seeking a waiver of the home residency requirement has only two meaningful waiver options.

Hardship Waivers

J-1 hardship waivers are, simply stated, hard to win. The burden of proving the requisite level of hardship is high, and it must arise under more than one scenario. There must be evidence of "exceptional hardship" to the FMGs permanent resident or U.S. citizen spouse and/or child. Now, this exceptional hardship must be way beyond the normal hardship associated with the separation of family members. A hardship that can be defined where the family is either separated by the FMGs departure or where the family accompanies he or she back to their native country.

The Immigration Service takes the position that substantial heartache is expected, and alone is never enough to acquire the waiver. Documentation of existing medical conditions, financial disaster, and psychological damage are required to establish the high level of hardship if the affected permanent resident or citizen family was to remain in the U.S. alone for two years. This path to the waiver is a difficult road to hoe unless you in fact can show the above.

Medically Underserved Areas

There are four main J-1 waiver programs for FMG's who will provide clinical care to the medically underserved areas. Of the four, two are of interest to the FMG who is planning on practicing in California. The largest program is the Conrad 30 program whereby each state may seek a waiver of the home residency requirement if the FMG is willing to:

  1. Work full-time (minimum of 40 hours per week)
  2. For a period of three years
  3. In a facility in a MUA area, and
  4. FMG must agree to begin work within 90 days of waiver approval

In addition to the above there are other programs available to the FMG in need of a J-1waiver and the two-year home residency requirement. This is a complicated and difficult process and experienced, competent legal help is advised.

It is possible and the results have a lasting impact.

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