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Copyright 2002, Boyd F. Campbell, All Rights Reserved

J-1 foreign medical graduates now have four options
to get waiver of 2-year foreign residency requirement

By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary

    J-1 physicians who entered the United States under the Educational Commission on Foreign Medical Graduates (ECFMG) clinical training program are subject to the two-year home residency requirement regardless of their country of citizenship or country of last permanent residence.  J-1 physicians who wish to remain in the United States after their clinical programs are completed must obtain a waiver of the two-year home residency requirement in order to obtain an H-1B (specialty worker) visa, L-1 (intracompany transferee) visa, or permanent resident (immigrant) visa.
    In contrast to other J-1 exchange visitors, J-1 physicians may not obtain a waiver on the basis of a "no objection" letter provided by their home country.  If, however, a J-1 physician has a well-founded fear of persecution in his home country, he may apply for political asylum.  A J-1 physician may also be eligible for a waiver based upon exceptional hardship, but these waivers are difficult to obtain.
    J-1 waivers for foreign medical graduates are governed by federal law.  Formerly, the Immigration and Naturalization Service (INS) of the U.S. Department of Justice had the authority to grant a waiver of the two-year home country physical presence requirement upon the favorable recommendation of the director of the United States Information Agency (USIA).  Prior to the enactment of the Immigration and Nationality Technical Corrections Act of 1994, there were three ways to obtain a J-1 visa waiver.

    1. The USIA director could recommend a waiver to INS pursuant to the request of an "interested U.S. government agency," which can show that granting of the waiver would be "in the public interest."
    2. The foreign medical graduate could apply to the INS for a waiver on the grounds that his departure would impose exceptional hardship upon his spouse or child if the spouse or child is a U.S. citizen or lawful permanent resident alien; or
    3. The foreign medical graduate could show that he would be subjected to persecution in his home country on account of race, religion, or political opinion.

    Such waivers were formerly handled by the United States Information Agency, whose responsibilities have been subsumed by the U.S. Department of State.
    Current law authorizes a state department of public health or its equivalent to request that the Department of State recommend that the INS grant the waiver as long as the government of the country to which the foreign medical graduate is required to return furnishes to the USIA director a statement in writing that it has no objection to such a waiver.  Further, the foreign medical graduate must demonstrate that he has a bona fide offer of full-time employment and must agree that he will begin employment within 90 days of receiving a waiver, and he must agree to continue to work for a total of not less than three years at a health care facility in an area designated by the Secretary of Health as having a shortage of health care professionals.
    Upon the favorable recommendation of the State Department, the Attorney General may grant with waiver and change the foreign medical graduate's nonimmigrant status from J-1 to H-1B.
    If a foreign medical graduate who obtains such a waiver fails to meet his contractual obligations, he will become ineligible to apply for an immigrant visa, permanent residence (a "green card"), or any other change of nonimmigrant status until the two-year foreign residence requirement has been met. Each state is allotted no more than 20 such waivers during a fiscal year, which runs from October 1 to September 30. Some states will always have many more than 20 applicants; others will not.
    For a time, such waivers were gone, but the INS has seen fit to restore the "national interest waiver" with respect to J-1 physicians.
    J-1 physicians obtain a waiver by sponsorship of an "interested government agency," or by serving three years in a "medically underserved area" in the United States.  The U.S. Department of Health and Human Services designates these areas.  State departments of public health can help one identify a "medically underserved area."  Medical facilities and groups may qualify as a "medically underserved area or medically underserved population" by supplying infant mortality rates, percentage of elderly pupulation and indigent population to their state departments of public health.  The J-1 physician provides a copy of his employment contract with the medical facility or group to show his participation in the area.
    The Apalachian Regional Commission (ARC) also has a J-1 physician waiver program in federal-state partnership.
    Federal regulations published on September 6, 2000 amended the Immigration and Naturalization Service (INS) regulations by establishing a procedure under which a physician who is willing to practice full-time in an area designated by the Secretary of Health and Human Services as having a shortage of health care professionals or in a facility operated by the Department of Veterans Affairs may get a waiver of the job offer requirement
that applies to alien beneficiaries of second preference employment-based immigrant visa petitions (EB-2).  The new rules explain the requirements the
alien physician must meet in order to obtain approval of an immigrant visa petition and, once the physician has completed the requirements, to obtain adjustment to lawful permanent residence status.
    Following are questions and answers about these regulations:

    Question.  What are national interest waivers?
    Answer.  Section 203 of the Immigration and Nationality Act ("INA") provides for the allocation of preference visas for both family and employment-based immigrants. The second preference employment-based category (EB-2) allows for the immigration of aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.  The INA also allows the Attorney General to waive the job offer requirement placed on EB-2 immigrants when the Attorney General determines that services the alien intends to provide will be in the national interest. Such waivers are commonly called national interest waivers.  These waivers relieve the petitioner from fulfilling the labor certification requirement, as administered by the Department of Labor.

    Q.  How has Congress amended Section 203 of the Immigration and Nationality Act?
    A.  On November 12, 1999, the President approved enactment of the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95 (Nursing Relief Act). Section 5 of the Nursing Relief Act amends section 203(b)(2) of the Act by adding a new subparagraph (B)(ii).  The amendment establishes special rules for requests for a national interest waiver that are filed by or on behalf of physicians who are willing to work in an area or areas of the United States designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals or at facilities operated by the Department of Veterans Affairs (VA).  The amendment is applicable only to practicing licensed physicians (namely doctors of medicine and doctors of osteopathy), not other health care professionals such as nurses, physical therapists, or doctor's assistants.
    The Consolidated Appropriations Act, 2000, enacted on November 29, 1999, also included an essentially identical amendment to section 203(b)(2)(B) of the Act.  To make the benefit of new section 203(b)(2)(B)(ii) as widely available as possible, and to avoid confusion for any physician on whose behalf a
petition was filed between November 12 and November 29, 1999, the interim rule fixes November 12, 1999, as the proper effective date.
    Under the Act as amended, the Attorney General is directed to grant a national interest waiver of the job offer requirement to any alien physician who agrees to work full-time in a clinical practice for the period fixed by statute. For most cases, the required period of service is 5 years; 3 years' service is sufficient in those cases involving immigrant visa petitions filed before November 1, 1998.  The alien physician must provide the service either in an area or areas designated by the HHS as having a shortage of health care professionals (namely in HHS designated Medically Underserved Areas, Primary Medical Health Professional Shortage Areas, or Mental Health Professional Shortage Areas), or at a VA facility or facilities. In either case, the alien physician must also obtain a determination from HHS, VA, another federal agency that has knowledge of the physician's qualifications, or a State department of public health that the physician's work in such an area, areas, or facility is in the public interest.

    Q.  Are the new statutes available to any physician?
    A.  Section 203(b)(2)(B)(ii) of the Act states that any physician may petition for a national interest waiver.  While the statutory language says "any physician,"' the INS notes that HHS currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.  Unless HHS establishes shortage areas for other fields of medicine, only these fields of medicine are covered by this rule.
    The INS anticipates that the majority of physicians petitioning under the new provisions will be those that are already admitted to the United States in a valid nonimmigrant status.  The INS expects that many J-1 nonimmigrant medical doctors in training, as well as physicians practicing medicine in H-1B nonimmigrant status, will apply for this waiver since many J-1 and H-1B physicians practice or are in training to practice family or general medicine.  It is unlikely that many physicians living abroad will have completed the necessary licensing and certification procedures in order to qualify for this
particular EB-2 immigrant visa. Any physician living abroad who has met the requirements necessary to practice in the United States, however, may seek a national interest waiver of the job offer requirement, if the physician can meet the requirements of section 203(b)(2)(B)(ii).

    Q.  How much time will the service give an alien physician to complete his or her aggregate service?
    A.  The interim rule establishes that physicians petitioning for EB-2 immigrant status with a request for a national interest waiver must fulfill the aggregate 5 years of full-time service within a six (6)-year period following approval of the petition and waiver (within 4 years of approval of the petition and waiver for cases filed before November 1, 1998).  The INS is of the opinion that granting physicians one additional year to accumulate the needed aggregate time is more than reasonable.
    The INS realizes that situations will arise that cause some physicians to have interruptions in the respective medical practice, such as job loss through no fault of their own and the ensuing search for new employment in an underserved area, pregnancy, or providing care to ill parents, children, or other family members.  Nevertheless, the INS does not consider it appropriate to allow physicians to remain in the United States indefinitely without satisfying the service requirement.  The INS will, therefore, deny the application for adjustment of status and revoke approval of the visa petition and
national interest waiver in any case in which the alien physician fails to submit, within the time fixed by the interim rule, the required documentary evidence establishing the physician's compliance with the service requirement.

    Q.  Does time spent by the alien physician in J-1 status count toward the mandatory service time period?
    A.  No.  The INA plainly states that any time spent by the alien physician in J-1 nonimmigrant status does not count toward either the 5- or 3-year medical service requirement.

    Q.  What evidence will physicians need to submit?
    A.  Most of the documentation is similar to what a physician would be required to submit if he or she were not applying for the national interest waiver. In a national interest waiver case, however, the evidence must establish that the physician will work in an HHS-designated shortage area or a VA facility and that the petition is supported by the needed attestations from either HHS, VA, another federal agency that has knowledge of the physician's qualifications, or a state public health department.

    Q.  Can any federal agency issue a needed attestation?
    A.  This interim rule provides that in order to provide an attestation, the federal agency must possess knowledge of the alien physician's skills and have experience in making similar type attestations.  In addition to HHS and the VA, this might include, for example, attestations from the medical director of a United States military hospital, the Peace Corps, or the Department of State.

    Q.  Are similar limits placed on state departments of health?
    A.  Yes.  The interim rule establishes that the needed attestation must come from a state department of public health (or the equivalent), including United States territories and the District of Columbia.  While the INA, as amended, states that "a department of public health in any state'' may provide the needed attestation, the INS has concerns over how a completely decentralized system of providing attestations can effectively address the problem of physician shortages.  In particular, the INS sees problems with an attestation procedure operating without a central authority in each state having oversight of
the process and oversight of where the physicians are actually practicing.  Therefore, the interim rule places the authority with each state department of public health to make the necessary attestations.
    Nothing in this interim rule prevents local departments of public health from urging the central state health department to issue attestations concerning the merits of a particular alien physician and that physician's desire to practice medicine in an HHS-designated underserved area.  This policy of placing the authority to render a needed attestation with the state public health department is consistent with INS regulations that address waivers of the two (2)-year return home requirement for J-1 nonimmigrant physicians.
    The INS is also restricting such attestations to physicians intending to practice clinical medicine within the agency's territorial jurisdiction.  For example, the INS will not accept an attestation from the State of Maryland Public Health Department regarding a physician proposing to practice medicine exclusively in Pennsylvania.

    Q.  Is there any special provision for long-pending petitions?
    As noted, most alien physicians must work in the area designated by the Secretary of HHS as having a shortage of health care professionals (or at the VA facility) for at least five (5) years before the alien physician may obtain permanent residence status.  A special rule applies if the alien physician is the beneficiary of an immigrant visa petition filed before November 1, 1998.  In that case, all the other requirements apply but the alien physician may obtain permanent residence after only three (3) years of qualifying service.  The INS has established an administrative method to implement the noted effective dates by providing guidance at 8 CFR 204.12(d) for each group of possible petitioners and beneficiaries.

    Q.  Is this waiver available to an alien physician who is the beneficiary of an immigrant visa petition that the INS denied prior to the amendment's enactment date of November 12, 1999?
    A.  If an INS decision that denied an immigrant visa petition became administratively final before November 12, 1999, the alien physician may obtain the benefit contained in the interim rule only through the filing of a new immigrant visa petition with the required evidence.  The INS will not entertain motions to reopen or reconsider denied cases because the provisions of section 203(b)(2)(B)(ii) of the INA were not in effect when those particular cases were denied.  Under established precedent, in order for an alien to receive a priority date, his or her petition must be fully approvable under the law that is in effect at the time of filing.  See Matter of Atembe, 19 I&N Dec. 427 (BIA 1986).  The denial of a motion to reopen or reconsider, however, will be without prejudice to the filing of a new immigrant visa petition.
    This restriction applies only if the denial became final before November 12, 1999.  That is, if the petitioner had filed a timely appeal of the Administrative Appeals Office (AAO) which was still pending as of that date, or, if the AAO affirmed the denial but the petitioner had already sought judicial review by November 12, 1999, it will not be necessary to file a new petition.  In making provision for cases filed before November 1, 1998, however, section 203(b)(2)(B)(ii)(IV) of the INA makes it clear that Congress intended to apply this new provision to all petitions that were actually pending on November 12, 1999.  If a case was pending before the AAO or a Federal court on November 12, 1999, the INS will support remand of the case to the proper Service
Center for a new decision in light of the new amendment.  If the case is still pending before a Service Center, the visa petitioner may supplement the record with evidence that satisfies the requirements of section 203(b)(2)(B)(ii) of the INA.

    Q.  At what point in the process may an alien physician apply for adjustment of status?
    A.  Section 203(b)(2)(B)(ii)(III) of the INA allows any physician in receipt of an approved immigrant petition with an accompanying national interest waiver request based on full-time service in a shortage area to immediately apply for adjustment of status to that of lawful permanent resident.  With a nonfrivolous adjustment of status application pending, the alien physician is eligible to apply for an Employment Authorization Document (EAD) pursuant to 8 CFR 274a.12(c)(9).  (Physicians with approved immigrant petitions and national interest waivers based on service in a shortage area should file the application for adjustment of status and the application for an EAD simultaneously.)  This relieves the physician of having to maintain any type of valid nonimmigrant status prior to the final adjudication of the adjustment of status application.  That is to say, the alien physician, under section 245(c)(7) of the Act, must have been in a lawful nonimmigrant status when the alien physician files the adjustment application, but need not remain in lawful nonimmigrant status during the entire period of medical service.

    Q.  At what point does the INS begin counting the physician's 5- or 3-year medical practice requirement?
    A.  In general, the alien's 5-year or 3-year period of medical service begins when the alien starts working for the petitioner in a medically underserved area.  If the physician, other than those with J-1 nonimmigrant visas, already has authorization to accept employment at the facility, the 6-year or 4-year period during which the physician must provide the service begins on the date that the INS approves the Form I-140 petition and national interest waiver. If the physician must obtain employment authorization before the physician can begin working, the 6-year or 4-year period begins on the date the Service
issues an EAD.  Since section 203(b)(2)(B)(ii)(II) of the INA specifically prohibits any time served in J-1 nonimmigrant status as counting towards the 5-year service requirement, J-1 physicians with approved Form I-140 petitions will have their medical service under this rule begin on the date the physician starts his or her employment with the petitioner, and after the INS issues an EAD.
    The interim rule does include a special provision for former J-1 nonimmigrant physicians who have obtained foreign residence requirement waivers. Section 214(l) of the INA provides a special waiver of the foreign residence requirement for alien physicians who are willing to work at VA facilities or in HHS-designated underserved areas.  Under section 214(l), 3 years' service as an H-1B nonimmigrant is sufficient.  The interim rule makes clear that for aliens who already have a waiver under section 214(l) of the INA, the INS will calculate the 5-year or 3-year period of services of the national interest waiver under section 203(b)(2)(B)(ii) of the INA beginning on the date the alien changed from J-1 to H-1B status.  That is, an alien who is subject to the foreign residence requirement will not be required to first serve for 3 years to obtain that waiver and then to serve an additional 5 years to obtain adjustment of status based on the national interest waiver.

    Q.  Will the INS hold open an adjustment of status application for the aggregate 5- or 3-year period?
    A.  Section 203(b)(2)(B)(ii)(II) of the INA prohibits the Attorney General from making a final determination on any adjustment of status application submitted by a physician practicing medicine full-time in a medically underserved area until the physician has had the opportunity to prove that he or she has worked full-time as a physician for an aggregate of 5 or 3 years, depending on filing date.  Physicians should note that this period of service does not count any time the physician has spent in a J-1 nonimmigrant status.
    The interim rule establishes two points where the alien physician must submit evidence noting his or her practice of medicine in an underserved area. First, physicians with the 5-year service requirement must make an initial submission of evidence no later than 120 days after the second anniversary of the approval of the immigrant petition, From I-140.  The physician must document at least 12 months of qualifying employment during the first 2-year period.  If a physician has not worked at least one year of this 2-year period, it will be mathematically impossible for the physician to reach his or her five-
year mark within six years. At the end of the physician's four-year balance, evidence must be submitted that documents the employment of the final years of the 5-year aggregate service requirement.  Alien physicians with the 3-year service requirement will only be required to submit evidence once, at the conclusion of the 3-years aggregate service.
    As evidence, the INS will request individual tax return documents, and documentation from the employer attesting that the physician has in fact performed the required full-time clinical medical service.  If a physician obtained the waiver based on his or her plan to establish his or her own practice, the physician must submit documentation proving he or she did so, including proof of the incorporation of the medical practice (if incorporated), business licenses, and business tax returns.

    Q.  Are the adjustment of status filing requirements different for these alien physicians?
    A.  Yes.  Because the Attorney General is prohibited from making the final adjudication on a physician's adjustment of status application, until the physician has submitted evidence documenting the medical service in a shortage area or areas, the interim rule establishes two modifications to the adjustment filing procedure.  First, physicians will not be scheduled for fingerprinting at an Application Support Center until the physician submits evidence documenting the completion of the required years of service.  Second, physicians will not submit the required medical examination report at the time of filing for adjustment.  The medical report will instead be submitted with the documentary evidence noting the physician's fulfillment of the 5- or 3-year medical service requirement.

    Q.  Can an alien physician relocate to another underserved area during the 5- or 3-year service period?
    A.  Yes.  Physicians will not be prohibited from relocating to other underserved areas.  However, the interim rule establishes that any physician desiring to relocate must submit a new petition that documents the reasons for the proposed relocation.  The interim rule, at 8 CFR 204.12(f), establishes the necessary procedures for the alien physician and the new petitioner to follow.
    The INS will take into account the amount of time the physician is engaged in full-time practices in calculating the aggregate medical service time in the underserved areas. For example, if the physician completed 3 years of service before approval of a second petition, then only 2 more years of service would be needed to qualify for adjustment of status.  However, petitioners and beneficiaries should note that the authorization to begin a medical practice in a new area does not constitute the beginning of a new 6-year period.  Regardless of the number of moves, physicians are granted just one 6-year period to complete the required service time.

    Q.  Will the INS require a physician to relocate to another underserved area if the initial area loses designation as an underserved area?
    A.  The interim rule does not require that a physician relocate to another underserved area should the area the physician is practicing full-time clinical medicine lose its designation as an underserved area.  The purpose of such a designation is to foster a greater physician presence in underserved areas. The Service believed one of the desired results of the statutory amendment is for physicians to take up residency in these areas and become integral parts of the community.  Once an area is no longer designated as an underserved area, however, the INS can no longer grant national interest waivers for
physicians to practice in that area (other than for physicians who will work in a VA facility).

    Q.  What action will the INS take if the alien physician does not submit the required evidence needed to complete the adjustment process?
    A.  The interim rule establishes, at section 245.18(i), that the INS will deny the application for adjustment of status and revoke approval of the Form I-140 if a physician fails to file proof of the physician's completion of the service requirement in a timely fashion.

    WARNING: Your future in the United States is too important to trust to just anyone.  You should find and hire a qualified U.S. immigration lawyer to guide you and help you with a change in visa status or with an immigrant visa application.  If you do not know a U.S. immigration lawyer, please call the American Immigration Lawyers Association (AILA) at (202) 216-2400.

    Boyd F. Campbell is a member of the American Bar Association (ABA), the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB).  He served as Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998.  He is also a memer of the ABA's International Law Section.  Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002.  He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988.  Mr. Campbell is listed in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc.  Access to this database of lawyers is available on the World Wide Web by subscription:  www.bestlawyers.com.  In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.

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