[Portions of this article have been written by SSHD attorneys Kristi Crawford and Karen Weinstock. Also, portions are excerpted from the J-1 Visa Guidebook published by LexisNexis and written by SSHD attorney Greg Siskind and co-authors William Stock and Steve Yale-Loehr. The J-1 Visa Guidebook can be purchased at the web site www.bender.com.]

Waiver of the Home Residency Requirement:

Physicians who entered the United States in J-1 status for the purpose of obtaining graduate medical education (residency training) are subject to the two-year home residency requirement as set forth in the Immigration and Nationality Act Section 212(e)(iii). Thereby, this is also known as the 212(e) waiver.

Those seeking such a waiver are attempting to avoid the requirement that they return to their home country before being eligible for further immigration benefits. Particularly, Section 212(e) prohibits changing status from J-1 to H-1B. Some will simply leave the United States at the conclusion of their residency program and return to their home country; thereby, 212(e) never becomes an issue. After spending the two years in their home country, the requirement disappears and the individual can apply for a visa.

However, for those who desire to remain in the United States without disrupting their careers, a waiver must be sought. The home residency requirement must be dealt with before any further immigration benefits can be obtained. This includes filing a request for changing status from J-1 to H-1B or submitting an adjustment of status application for permanent residence.

For physicians, a waiver of 212(e) can take the following forms:

1. Hardship waiver- evidence that compliance would result in exceptional hardship to a U.S. citizen or permanent resident spouse or child. This argument cannot take into account hardship suffered by the J-1 physician.
2. Persecution waiver- evidence that the alien will be subject to persecution on account of race, religion, or political opinion if forced to return to their home country.
3. Interested Government Agency- a request from a designated agency where that agency has determined that such a waiver would be in the public interest.
4. A request from a State Department of Public Health to serve in a designated health professional shortage area.

The current State 20 program actually sunset on May 31st of this year. Only J-1s in the US on Now most physician waivers are issued by the states and with the potential expansion of the program from 20 waivers per state to 30 waivers per state, these programs will become even more important.

Under the current Conrad State 20 Program, each state is permitted to sponsor up to 20 doctors a year for J-1 home residency waivers. While there are some basic common requirements for each program - physicians must work 3 years full time in health professional shortage areas - there are a number of important variations between the different states.

States that do NOT have a state 20 program are Oklahoma, Idaho, Kansas, Oregon and Wyoming; Montana has no program but is looking at the possibility of sponsoring those who the USDA will not sponsor, and since the USDA has cancelled its program, it may push Montana to issue waivers. The other five states without programs are said to be considering resuming there programs.

Common Requirements

Under State Department regulations, a State waiver application must originate in the designated state department of public health. The application should include the following:

• A letter from the director of the designated state department of public health identifying the foreign physician, and a statement that it is in the public interest that a waiver be granted;
• An employment contract between the physician and the health care facility, including the name and address of the specific health care facility and a specific geographic area or area in which the physician will practice;
• Proof that the areas of employment stipulated in the employment contract are in HPSAs;
• A statement by the physician agreeing to certain contractual requirements;
• Copies of all IAP-66 (soon to be DS-2019) forms issued to the physician;
• A completed data sheet; and
• A sequential numbering of the application indicating how many waivers the requesting state department of public health has successfully requested.

The medical graduate must agree to begin employment within 90 days of receiving the J-1 waiver, and must agree to work for at least three years at a health care facility in the designated area, unless extenuating circumstances exist. Upon the favorable recommendation of the DOS, the Attorney General may grant the waiver and change the medical graduate’s nonimmigrant status from J-1 to H-1B.

A person who has obtained a change of status under this provision and who has failed to fulfill the terms of a contract with a health care facility is not eligible to apply for an immigrant visa, for permanent residence, or for a change of nonimmigrant status until he or she has satisfied the two-year home residence requirement. The two year home residence requirement also applies to a foreign medical graduate who otherwise is eligible for a waiver under the State 20 program who practices medicine outside an HHS-designated shortage area.

Variations

Many states that issue waivers require the doctor to work in “primary care”. Most states have defined what primary care is and which practices will be allowed (see below). States that do not define “primary care” include Alaska, Colorado, Connecticut, Hawaii, Maine and Utah.

Most states will define “primary care” as family practice, general internal medicine, pediatrics, obstetrics/gynecology and some will even include psychiatry and general surgery. Below you will find each of the medical practice areas, and a list of states that define that medical field as primary care:

Family Practice – Alabama, Arizona, Delaware, District of Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, Washington, West Virginia, Wisconsin.

General Internal Medicine – Alabama, Arizona, Delaware, District of Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, Washington, Wisconsin.

Pediatrics – Alabama, Arizona, Delaware, District of Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, Washington, West Virginia, Wisconsin.

OB/GYN – Obstetrics/Gynecology – Alabama, Arizona, Delaware, District of Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada (in rare cases), New Hampshire, New Jersey (given priority), New Mexico (family practice with OB), North Carolina (no ER placements at all), North Dakota (obstetrics), Ohio, Pennsylvania, South Carolina (obstetrics), Tennessee, Vermont, Virginia, Washington, West Virginia, Wisconsin (general obstetrics).

Psychiatry – District of Columbia, Florida, Maryland, Missouri, North Dakota, Ohio, Pennsylvania, South Carolina, Washington, West Virginia, Wisconsin. The following states will allow psychiatry if the practice is in a mental health shortage area (M-HPSA): Arizona, Georgia, Iowa, Massachusetts, Minnesota, Virginia.

General Surgery – Indiana (will accept general surgeons on a case-by-case basis, but priority for primary care physicians), South Carolina, Vermont, Virginia (will accept general surgeons who practice 40 hour weeks), West Virginia (combined med); Delaware will accept surgeons on a case-by-case basis.

General Practice – Kentucky, Michigan, Mississippi.

Geriatrics – Alabama.

ER placements – Mississippi will allow only with full documentation of need.

Many states, such as Alabama, will not accept doctors with a specialty or sub-specialty training, since that is not considered to be “primary care”. However, some states have slots allocated for specialty doctors and others will allow fellowship or specialty training as long as the physician works in primary care or as long as the facility can document the need for specialty.

The following states will accept doctors with specialty or sub-specialty training if they work in primary care: Arizona, Florida, Georgia (physicians with fellowship or sub-specialty training are not considered to be primary care physicians, but they will be evaluated on a case-by-case basis), Maine, Maryland (only allows fellowship training in geriatrics), Minnesota (a fellowship training is allowed only if board eligible/board certified in one of the primary care specialties. Neither the facility nor the physician may offer the physician’s sub-specialty services), New York (subspecialties not precluded; however, a waiver will be provided for practicing full time in primary care).

The following states will accept doctors with specialty or fellowship experience with documentation of need for the subspecialty in the service area: Delaware, Kentucky (psychology, cardiology and surgery may be considered after primary care determination if all 20 slots are not used), Iowa (will allow general surgeons for rural hospitals; up to 6 sub-specialties with demonstration of need from employer), North Dakota (will allow general surgery; will allow specialties under extreme circumstances), Pennsylvania (subspecialties may be considered based on need), Vermont (will accept exceptions on a case-by-case basis with documentation of specific need in geographic area), Virginia (will accept specialties, but if facility is a multi-specialty practice group, then physicians with non-primary care specialist or fellowships are ineligible), Washington (family practice or internal medicine subspecialties allowed, also specialists in general surgery or radiology/diagnostic) and Wisconsin (will not accept general surgeons, exceptions will be considered on case-by-case basis with extraordinary circumstances).

The following states do not allow any fellowship or residency specialty training: Alabama, Massachusetts, North Carolina, Ohio (those who have either begun or completed subspecialty training are not eligible) and New Mexico.

The following states allocate a number of slots each year for specialty placements: Iowa (will allow up to 6 sub-specialties with demonstration of need from employer), Mississippi (allocates four slots each year for specialty placement; these are considered only in the latter six months of the fiscal year), Missouri (reserves four slots per year for specialists, but physicians without fellowship training are preferred), Washington (reserves 15 slots per primary care physicians, 5 for subspecialties).

Many states have additional requirements that have to be met, and some of them are quite extensive. Some states require the facility to obtain a state approval prior to recruiting and others require a minimum of a four-year contract. Others require that all other waiver programs must be attempted first (though now that the USDA program has ended, the number of alternatives is certainly down).

The following states require that the facility must be pre-approved by the state prior to applying for the waiver: Louisiana, Missouri, Ohio, Pennsylvania, Virginia, West Virginia (the site must submit letter of intent before recruiting the physician).

The following states require a minimum of a four-year contract with the physician (compared to the normal three year requirement): New Jersey, North Carolina, Vermont, West Virginia.

There are various miscellaneous requirements that are worth noting:

• Alabama will grant a waiver ONLY IF the physician attempted to use all other IGA waiver programs first and the facility must have recruited at state medical schools;
• Arizona will give preference to physicians who speak Spanish or a language significantly represented in the designated practice areas and requires that the physicians must offer primary health care services on a sliding fee scale
• Illinois will only accept urban facilities as long as USDA is accepting rural facilities, only 2 waivers per facility (however USDA has stopped its program and Illinois is said to be considering changing this);
• Iowa will place 10 urban, 10 rural;
• Louisiana will give priority to J-1 applicants who do their residency in Louisiana;
• Mississippi requires that the site cannot be in ARC (Appalachian Regional Commission) county and must be a full county HPSA, non-metropolitan Statistical Area (MSA);
• New Hampshire requires a doctor to have completed a “terminal primary care specialty”;
• New York requires that all other possible waiver avenues (ARC, USDA) must be exhausted before applying to NY;
• North Carolina will sponsor physicians on a case-by-case basis and requires a minimum 550 score on TOEFL or 213 CBT, 50 on TSE-P;; also, the sponsor must be in a community with less than 20,000 population;
• Virginia requires job open notices to all medical schools in state and that the physician has a VA license before applying,
• Wisconsin requires that the physician have completed at least 1 year of primary care residency and related subspecialty in the US.

Kristi L. Crawford is an associate in Siskind, Susser, Haas, & Devine’s office in North Carolina's Research Triangle Park area. She graduated from the University of Memphis, Cecil C. Humphrey’s School of Law in 1999 and is a member of the Tennessee Bar. While attending the University of Memphis she served as Editor-in-Chief of the law publication The Tennessee Journal of Practice and Procedure. In 1995, Ms. Crawford graduated cum laude from St. Mary’s College (Michigan) with dual degrees in English Literature and Theology. Located near the biotechnology center of Research Triangle Park, Ms. Crawford focuses her practice on serving the medical and professional immigration specialty. She can be reached via email at kcrawford@visalaw.com.