INA 212E Waivers for Foreign Medical Graduates

(aka J WAIVERS)

Nearly all foreign medical graduates (FMGs) who come to the United States for residency and training arrive under J-1 exchange program visas. The intent of these visa programs is to provide foreign medical practitioners up to date, modern training, and to have them in turn, bring these skills back to their home countries. In order to achieve this objective, all FMG J-1 visas carry a 2 year home residence requirement under INA sec. 212(e). This 2 year residence requirement prevents these visa holders from being granted permanent residence or other types of US work visas (H, L etc.) until they have either satisfied the 2 year requirement, or they have had the requirement waived.

Most foreign medical graduates pursue waivers based on providing medical care to an MUA (Medically Underserved Area) or HPSA (Helalthcare Professional Shortage Area).  However, they are not limited to this type of filing. They can pursue waivers based on exceptional hardship to a US citizen or permanent resident spouse or child, or based on the claim that they would face persecution based on race, religion or political opinion in their home country. Waivers based on a letter of no objection from the alien's home country are not available to physicians. Extreme hardship and persecution-based waivers are difficult to obtain because of the high level of proof required, and many physicians simply will not have a case that fits the requirements. This leaves them with waivers based on a request from an interested government agency. There are a number of agencies that will sponsor waivers, as well as the Conrad State 30 program (please see below).

One of the most commons methods of obtaining said J "waiver" is to work for a designated period of time in a designated Health Care Professional Shortage Area (HPSA) or Medically Underserved Area (MUA). State Health Departments have developed their own waiver review systems, in conjunction with federal/Dept. of State requirements.

Conrad State 30 Programs

The central goal of all Conrad State-30 J Waiver programs is improving access to primary health care. Therefore, as there are only 30 physicians per state granted the waiver per fiscal year, preference for J-1 visa waivers is usually given to physicians trained in the specialties of Family Practice, Internal Medicine, Pediatrics, and Obstetrics and Gynecology. However, non-primary care physicians who fill a well-documented community health care need, are also considered for J-1 visa waivers. These rules are defined by the States on a State by State basis. All states except Oregon, Wyoming and Idaho participate in this program.

In order to have the 2 year home residency requirement waived, the FMG must agree to work in the HPSA or MUA under a restricted H-1B. By restricted, we mean that if the FMG leaves the MUA/HPSA before the agreed to amount of time, then they lose the waiver and cannot change or adjust status in the United States. The initial H-1B will only be approved pursuant to the State 30 J Waiver Program and Dept. of State waiver recommendation (form I-612). Upon approval of the waiver request by the Dept. of State and USCIS (formerly INS), the petitioner submits an H-1B petition on behalf of the physician. He/she will work under this visa for the sponsoring hospital.

The request must be accompanied by evidence that the employer has made reasonable efforts to recruit a US physician for the position within the past six months. At a minimum, the recruitment should include advertisements in national medical journals and job opportunity notices at all medical schools in the state of employment.

The physician must be licensed to practice medicine in the state of employment, and must have completed a residency in family practice, general pediatrics, obstetrics, general internal medicine, or psychiatry. Also, the facility at which the physician will be employed must show that it provides medical care to people without regard to their ability to pay or whether payment will be made by Medicare or Medicaid. The facility must also use a sliding fee scale for people at or below 200 percent of the poverty level. A public notice containing this information must be posted.

Please contact ILG for a case-specific evaluation of your I212e Waiver case.  Please call or email us to arrange an in-person consultation with one of our J Waiver immigration lawyers.

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