ABCs of Immigration: 'Public Interest' Waivers Under the Federal J-1 Waiver Programs -

Home > Blog > ABCs of Immigration: ‘Public Interest’ Waivers Under the Federal J-1 Waiver Programs

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, The Physician Immigration Handbook.]

“Public Interest” Waivers Under the Federal J-1 Waiver Programs

Any federal government agency has the capability of sponsoring a J-1 visa holder for a waiver of the home residency requirement, as long as the agency believes a waiver would be in the public interest, under §212(e) of the Immigration and Nationality Act (INA). In practice, only a handful of federal agencies grant virtually all of the public-interest waiver recommendations to J-1 physicians. The majority of these waivers are rooted in a commitment to providing work in underserved communities or veterans hospitals, and an additional set of rules governing these waivers.

What are the common rules governing federal interested government agency (IGA) waivers?

Pursuant to Title 22 of the Code of Federal Regulations §41.63(c), the United States Department of State permits any U.S. government agency’s request for a waiver of the two-year home residency and physical presence requirement for a J-1 exchange visitor contingent upon the person’s active and substantial involvement in a program or activity sponsored by or of interest to such agency. A number of agencies utilize this program to their advantage and have programs specifically to sponsor doctors to work in locations they consider in their interest.

Five federal programs currently exist that regularly sponsor J-1 waivers for doctors. These programs are run by four agencies, two of which are controlled by the same agency. The agencies are the Appalachian Regional Commission (ARC), the Delta Regional Authority (DRA), the Department of Veterans Affairs (VA), and the Department of Health and Human Services (HHS).

There are a specific set of rules enforced by the Department of State which are applicable to programs placing doctors in shortage areas. The three programs which must adhere to these requirements are run by the ARC, DRA, and HHS’s clinical physician program, while the VA program and the HHS researcher program are not subject to those extra rules.

What are the differences between the rules governing federal IGA waivers and Conrad 30 state health agency waivers?

A requirement specific to Conrad 30 waivers is a “no objection” letter from the home country when the international medical graduate (IMG) is contractually obligated to return.
Federal shortage-area waiver applications maty not include noncompetition provisions in their employment contracts.
Though states nearly always require recruiting, Conrad waivers do not include a recruiting requirement.
In federal applications, Medicare/Medicaid must be accepted.
The option to approve flex applications in nonshortage areas does not apply to federal programs.

What items must be included in all federal IGA waiver applications?

A written request from the head of agency or designee.
Forms IAPP-66 and DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.
A copy of the employment contract between the IMG and the facility where he or she will be employed. This contract must meet the following requirements:a.) A minimum of three years of employment;
b.) No less than 40 hours a week of employment in primary care or specialty medicine;
c.) The physician’s services will be performed in a Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA) (except Vas and waivers based on things other than work in underserved areas); and
d.) No noncompetition clauses contained in the contract.
Statement signed by the head of the facility which says:i.) The facility is located within an HHS-designated shortage area;
ii.) The facility provides care to both Medicaid- and Medicare-eligible patients and indignant uninsured patients; and
iii.) The facility provides service to HHS-designated underserved areas (with a listing of the Federal Information Processing Standards (FIPS) county code and census tract, or block number, or nine-digit zip code, along with the identification numbers of the shortage area).
Statement signed by doctor stating the following:
[NAME OF EXCHANGE VISITOR] HEREBY DECLARE AND CERTIFY, UNDER PENALTY OF THE PROVISIONS OF 18 U.S.C. 1001, THAT I DO NOT NOW HAVE PENDING NOR AM I SUBMITTING DURING THE PENDENCY OF THIS REQUEST, ANOTHER REQUEST TO ANY UNITED STATES GOVERNMENT DEPARTMENT OR AGENCY OR ANY STATE DEPARTMENT OF PUBLIC HEALTH, OR EQUIVALENT, OTHER THAN ________ [INSERT NAME OF UNITED STATES GOVERNMENT AGENCY REQUESTING WAIVER] TO ACT ON MY BEHALF IN ANY MATTER RELATING TO A WAIVER OF MY TWO-YEAR HOME-COUNTRY PHYSICAL PRESENCE REQUIREMENT.
Documentation of unsuccessful efforts to recruit a U.S. citizen physician for the position to be filled.

HHS Clinical Waivers

Before 1994 and the creation of the Conrad program for state health departments, a handful of federal agencies provided J-1 waivers. Physicians agreeing to work in rural communities received waivers from the U.S. Department of Agriculture, while the Department of Housing and Urban Development issued waivers for physicians agreeing to work in underserved areas in cities. The Veterans Administration (VA) had its own program for doctors serving in VA hospitals. The Department of Health and Human Services (HHS) had a program that provided waivers for physicians engaged in research, and the Appalachian Regional Commission (ARC) had a program for physicians who agree to work in counties in the 12 states which are under the control of that regional development agency.

The federal agency waiver landscape has significantly changed since then. The Department of Agriculture and the Department of Housing and Urban Development have shut down their respective programs. A new regional agency modeled after the ARC, the Delta Regional Authority, created a popular J-1 program. HHS created a second waiver program in 2002 which is specifically designed to certain federally qualified health centers, rural clinics, and Native American tribal health facilities.

Shortly after the Department of Agriculture ended its program in 2002, HHS developed a new waiver program to provide a route to a J-1 waiver for a narrow subset of the community the Department of Agriculture program used to address. The regulation issued in 2002 was relatively broad, stating the HHS would issue J-1 waivers to primary-care physicians, required recruiting, and mandated that employers accept Medicare, Medicaid, and indigent patients. HHS issued guidelines in June 2003 that were also fairly broad regarding the types of applications which would be accepted, but those were swiftly withdrawn. Later that same year in December, new guidelines were released which have received only minor alterations in the years since.

What types of facilities can file HHS clinical waivers for J-1 physicians?

Federally qualified health centers, defined under Section 330 of the Public Health Service Act, which are receiving grants under Section 330;
Rural health clinics as defined under Section 1102 and 1871 of the Social Security Act; or
A Native American/Alaskan Native tribal facility as defined by the Indian Self Determination and Education Assistance Act.

What physician specialties will be considered for HHS clinical waivers?

HHS will only sponsor primary-care doctors. This includes doctors practicing in family medicine, general internal medicine, general pediatrics, obstetrics, and gynecology, or general psychiatry.

Does a facility need to be in a shortage location?

HHS indeed required applicants to be in facilities that are in Health Professional Shortage Areas (HPSA) with a score of 7 or higher. Medically Underserved Areas (MUA) ad Medically Underserved Populations (MUP) are out of consideration.

Can an employer use HHS’s National Health Service Corps (NHSC) program at the same time it pursues an HHS J-1 waiver?

Yes, but it is dependent upon the NHSC position remaining unfilled at the end of the NHSC placement cycle.

What items must a physician provide HHS as part of the waiver application?

The physician is required to provide the following:

A U.S. Department of State J-1 Waiver Data Sheet (2 copies);
Copies of Forms DS-2019 for each year in J-1 status;
A physician statement (using language specified by HHS) that the doctor does not have other waiver applications pending;
Current curriculum vitae with Social Security number;
Three letters of recommendations from U.S. residents familiar with the doctor’s qualifications; and
Credentialing documents (diplomas, licenses, license applications, etc.).

What recruiting documentation must an employer provide HHS?

Employers are required to provide proof of regional and national recruiting efforts. Additionally, the employer must provide to HHS names of non-foreign doctors applying for the job or who were interviewed and the reason why they were not hired.

What are the HHS requirements for the physician’s employment contract?

The J-1 application must include a signed contract that meets the following requirements:

Has a three-year duration;
Requires the doctor to work 40-hours per week providing outpatient primary care;
Specifies the worksite(s) (including the HPSA identifier number) and all listed sites must be HPSA locations scoring 7 or higher;
Does not include a noncompetition clause or restrictive covenant;
Is signed by the head of the medical facility and the physician; and
Is both dated and notarized

What items are included in an HHS clinical application?

Employers are required to submit the following additional items:

Form HHS 426, Application for Waiver of the Two-Year Foreign Residence Requirement of the Exchange Visitor Program;
A cover letter;
Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative;
Letter of need from the medical facility on letterhead, including the following:
Identifier number(s) of the underserved area(s) included in the application;
Statement that the facility treats all patients regardless of ability to pay, accepts Medicare, Medicaid, and the State Children’s Health Insurance Program (S-CHIP_ assignment, and uses a sliding-fee scale for persons at or below 200 percent of the poverty income level; and
Signature of the head of the facility.
Three letters of community support for the hiring of the doctor (including contact information);
Letter from state health department that supports or acknowledges the waiver application or documentation that the letter has been requested;
Prevailing wage documentation;
Proof of the facility’s existence (in the form of a phone book listing, for example);
Rural health clinics must provide a copy of the Letter of Certification issued by the Centers for Medicare and Medicaid Services; and
An attestation from the employer that it is in a shortage area (including listing ID number) and treats Medicare/Medicaid/indignant patients.

How does HHS make decisions on its clinical waiver cases?

HHS established an Exchange Visitor Waiver Review Board (EVWRB) for J-1 waiver recommendation applications. The EVWRB includes at least three members and two alternatives, with the director of the Office of Global Health Affairs, Office of the Secretary, acting as the chairman. The director may appoint a staff member to serve in his or her absence. It is the responsibility of the assistant secretary of health of HHS to appoint the other two members and the alternatives. The EVWRB may establish a workgroup from the operating divisions of HHS the purpose of which would be to consider applicat6ions for waivers based on the health care needs of underserved populations. The day to day review of applications will be the responsibility of an HHS administrator.

HHS Researcher Waivers

What are the main requirements to qualify for an HHS researcher waiver?

In order to qualify for an HHS waiver, an applicant organization must demonstrate:

The program or activity at the applicant’s organization or institution is of “high priority” and of “national or international significance” in an area of interest to HHS;
The J-1 exchange visitor is playing an integral role in the program or activity and that the loss of the individual’s services would result in the discontinuance of the program or a major phase of it; and
The J-1 exchange visitor has outstanding qualifications beyond the expected accomplishments at the graduate, postgraduate, or residency levels, and the applicant must be capable of making original and significant contributions to the program.

How do you demonstrate that being denied a waiver will result in the discontinuance of a program?

An applicant organization is required to produce evidence detailing how the loss or unavailability of the J-1 exchange visitor’s services would adversely affect the “initiation, continuance, completion, or success” of the program or activity. As an example, if it took the institution a considerable amount of time to hire the researcher because of the researcher’s unique set of skills, of if the physician took the lead role in the research, an institution could coherently claim that the physician’s departure would make the program’s continuation without at least a major disruption impossible. HHS program rules specifically state that the principal problem does not need to be one of administrative, budgetary, or program inconvenience to the applicant organization.

Does qualifying for an O-1 visa mean the J-1 waiver applicant is likely to qualify for an HHS waiver?

This is not necessarily the case. Although demonstrating one’s outstanding qualifications is an imperative aspect of an HHS researcher waiver, considerable weight is placed upon the importance of the research overall and the role of the researcher. Additionally, dissimilar to an O-1 visa which is reviewed by a U.S. Citizenship and Immigration Services (USCIS) examiner with no expertise in the researcher’s field, HHS enlists experts to review the applications. These experts will usually place more importance on the researcher’s curriculum vitae than on support letters from experts in the field, but the applicant should still submit any support letters they have.

What documentation must be included to support an HHS researcher waiver application?

A concise, scientific description of the research program that includes information on how the national or international public interest is served.
Evidence of how the exchange visitor has played an essential day-to-day role in the program over time. Include information on any unique or rare technical expertise and on any grant-funding the exchange visitor has received.
Information on the other people working in the program and how the exchange visitor’s expertise is related to those individuals. The goal being to display the reliance that others in the program have on the exchange visitor.
Evidence from the last 18 months that shows the institution’s efforts recruiting a suitable applicant to fill the position. Included in this evidence should be copies of at least one advertisement in a national journal which lists the salary or a statement that the salary will commensurate experience. Additionally, any internet recruiting, letters to colleagues in the field and other recruiting documentation, including a brief summary of the results of the recruiting efforts. Also, the applicant should include documentation indicating that the salary offered is at a fair market rate.
A description of what is the probable future of the program if the waiver is not granted, including evidence indicating that the loss of the exchange visitor’s services would seriously restrain or delay the initiation, continuation, completion, or success of the program or activity, or a major part of the program.
A brief explanation of the institution’s long-term plans for the visitor and how he or she will contribute to the research and the institution in the future. Included can be information on promotions, tenure, and other opportunities that may be in the visitor’s future.
The visitor’s qualification information, including special accomplishments, should be addressed in the employer support letter and in letters of recommendation provided from outside the sponsoring institution.
A curriculum vitae, bibliography, and sampling of recent relevant publications.
Copies of all Forms IAP-66 and/or DS-2019 and current visa status materials.
Any other facts considered germane.

What should be omitted from the application?

The application should not include copies of grants, honors, awards, any publications more than a few years old, citations, curriculum vitae of anyone other than the applicant, and background information on the sponsoring institution.

Who needs to write the letters of recommendation and what should they include?

Unlike O-1 and EB-1 petitions where letters come from a variety of sources inside and outside the institution HHS prefers for the letters to come only from individuals outside an applicant institution. Letters should discuss the exchange visitor’s accomplishments as they relate to the area of research which is the basis for the application, coupled with any other indicators that the J-1 is outstanding in the field. While HHS does prefer letters that do not repeat each other, there is no maximum or minimum number of applications. The letters should be specifically addressed to HHS, instead of copies of supporting letters from another application sent to USCIS. Preferably, the letter writer should be a well-known figure in the field who is likely to be recognized by the expert who is reviewing the petition. Note that not included should be the curriculum vitae of external letter writers.

Who needs to sign the HHS Form 426?

Two individuals at the applicant institution sign the Form HHS-426: the principal program officer and the responsible administrative officer. The principal program officer is a person who is familiar with the research and can provide additional information to HHS regarding the application. The responsible administrative officer should be a senior person at the institution who is authorized to sign as a representative for the entire institution. HHS maintains a list of authorized signatories and the responsible administrative officer should match the name on the list. If this is not the case, the institution’s general counsel should notify the EVWRB of the name of the authorized signer.

What happens subsequent to the application’s submission?

After the application is submitted, it receives an initial review from the EVWRB executive secretary. This review focuses on ensuring the presence of necessary information and documentation within the application. The application is then sent for technical review to a volunteer expert, who is a full-time scientist who is an expert in the specific field of research. If the National Institutes of Health (NIH) has provided grant funding supporting the research that is the subject of the application, then NIH will be part of this technical review process. Upon completion of the technical review and sending comments back to the EVWRB, the executive secretary sends the application to two of the five members of the EVWRB. Though EVWRB members are emeritus scientists, they are not necessarily experts in the particular area of research; the members are looking at whether the application meets the overall criteria for the program. Once each EVWRB reviews the application, they send their comments back to the executive secretary individually. If the two reviewers reach a different recommendation, the decision is made by the executive secretary. The executive secretary then informs the institution of the decision, positive or negative.

If the decision is favorable, the executive secretary sends the recommendation to the Department of State’s Waiver Review Board for the later stages of J-1 waiver processing.

Is clinical research eligible for an HHS research waiver?

Yes, clinical research can be considered. The EVWRB will assess the amount of time spend on research versus patient care alone, and it will also look at the J-1’s publication history to gauge the importance of the clinical research.

What if NIH or HHS grant-funding does not support the research?

While NIH or HHS grant-funding can be integral, funding from other sources is considered in determining if the research is of interest to HHS and if the J-1’s role in that research is crucial. Examples of other sources include other government agencies, private sector funding, or internal funding from the institution.

Can a researcher waiver application be appealed?

If an institution believes that it was denied a case unjustifiably, it can submit a written request for more information on the application’s deficiencies. HHS will then grant an informal re-adjudication of the request on a one-time basis to those institutions the request the opportunity to improve upon any identified deficiencies in the initial application.

Appalachian Regional Commission

What is the ARC

The Appalachian Regional Commission (ARC) was created in 1965 as a regional economic development agency. Its purpose was to serve as a partnership between the federal government and state and local governments in the 13 states and approximately 400 counties which comprise the Appalachian region of the eastern United States. The governors of those 13 states act in partnership with a federal co-chair appointed by the President of the United States.

What states, counties, and independent cities comprise the ARC?

The following is a list of counties and independent cities which incorporate the ARC:

Alabama: Bibb, Blount, Calhoun, Chambers, Cherokee, Chilton, Clay, Cleburne, Colbert, Coosa, Cullman, De Kalb, Elmore, Etowah, Fayette, Franklin, Hale, Jackson, Jefferson, Lamar, Lauderdale, Limestone, Macon, Madison, Marion, Marshall, Morgan, Pickens, Randolph, St. Clair, Shelby, Talladega, Tallapoosa, Tuscaloosa, Walker, and Winston

Georgia: Banks, Barrow, Carroll, Catoosa, Chattooga, Cherokee, Dade, Dawson, Douglas, Elbert, Fannin, Floyd, Forsyth, Franklin, Gilmer, Gordon, Gwinnett, Habersham, Hall, Haralson, Hart, Heard, Jackson, Lumpkin, Madison, Murray, Paulding, Pickens, Polk, Rabun, Stephens, Towns, Union, Walker, White, and Whitfield

Kentucky: Adair, Bath, Bell, Boyd, Breathitt, Carter, Casey, Clark, Clay, Clinton, Cumberland, Edmonson, Elliott, Estill, Fleming, Floyd, Garrard, Green, Greenup, Harlan, Hart, Jackson, Knott, Knox, Laurel, Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln, McCreary, Madison, Magoffin, Martin, Menifee, Metcalfe, Monroe, Montgomery, Morgan, Nicholas, Owsley, Perry, Pike, Powell, Pulaski, Robertson, Rockcastle, Rowan, Russell, Wayne, Whitley, and Wolfe

Maryland: Allegany, Garrett, and Washington

Mississippi: Alcorn, Benton, Calhoun, Chickasaw, Choctaw, Clay, Itawamba, Kemper, Lee, Lowndes, Marshall, Monroe, Montgomery, Noxubee, Oktibbeha, Panola, Pontotoc, Prentiss, Tippah, Tishomingo, Union, Webster, Winston, and Yalobusha

New York: Allegany, Broome, Cattaraugus, Chautauqua, Chemung, Chenango, Cortland, Delaware, Otsego, Schoharie, Schuyler, Steuben, Tioga, and Tompkins

North Carolina: Alexander, Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Cherokee, Clay, Davie, Forsyth, Graham, Haywood, Henderson, Jackson, McDowell, Macon, Madison, Mitchell, Polk, Rutherford, Stokes, Surry, Swain, Transylvania, Watauga, Wilkes, Yadkin, and Yancey

Ohio: Adams, Ashtabula, Athens, Belmont, Brown, Carroll, Clermont, Columbiana, Coshocton, Gallia, Guernsey, Harrison, Highland, Hocking, Holmes, Jackson, Jefferson, Lawrence, Mahoning, Meigs, Monroe, Morgan, Muskingum, Noble, Perry, Pike, Ross, Scioto, Trumbull, Tuscarawas, Vinton, and Washington

Pennsylvania: Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Cameron, Carbon, Centre, Clarion, Clearfield, Clinton, Columbia, Crawford, Elk, Erie, Fayette, Forest, Fulton, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lackawanna, Lawrence, Luzerne, Lycoming, McKean, Mercer, Mifflin, Monroe, Montour, Northunberland, Perry, pike, Potter, Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union, Venango, Warren, Washington, Wayne, Westmoreland, and Wyoming

South Carolina: Anderson, Cherokee, Greenville, Oconee, Pickens, and Spartanburg

Tennessee: Anderson, Bledsoe, Blount, Bradley, Campbell, Cannon, Carter, Claiborne, Clay, Cocke, Coffee, Cumberland, De Kalb, Fentress, Franklin, Grainger, Greene, Grundy, Hamblen, Hamilton, Hancock, Hawkins, Jackson, Jefferson, Johnson, Knox, Lawrence, Lewis, Loudon, McMinn, Macon, Marion, Meigs, Monroe, Morgan, Overton, Pickett, Polk, Putnam, Rhea, Roane, Scott, Sequatchie, Sevier, Smith, Sullivan, Unicoi, Union, Van Buren, Warren, Washington, and White

Virginia: Alleghany, Bath, Bland, Botetourt, Buchanan, Carroll, Craig, Dickenson, Floyd, Giles, Grayson, Henry, Highland, Lee, Montgomery, Patrick, Pulaski, Rockbridge, Russell, Scott, Smyth, Tazewell, Washington, Wise, and Wythe; the following independent cities in Virginia are also within the Appalachian Region: Bristol, Buena Vista, Covington, Galax, Lexington, Martinsville, Norton, and Radford.

West Virginia: All counties: Barbour, Berkeley, Boone, Braxton, Brooke, Cabell, Calhoun, Clay, Doddridge, Fayette, Gilmer, Grant, Greenbrier, Hampshire, Hancock, Hardy, Harrison, Jackson, Jefferson, Kanawha, Lewis, Lincoln, Logan, Marion, Marshall, Mason, McDowell, Mercer, Mingo, Monongalia, Monroe, Morgan, Nicholas, Ohio, Pendleton, Pleasants, Pocahontas, Preston, Putnam, Raleigh, Randolph, Ritchie, Roane, Summers, Taylor, Tucker, Tyler, Upshur, Wayne, Webster, Tetzel, Wirt, Wood, and Wyoming

What types of doctors are eligible for J-1 waiver sponsorship by the ARC?

Physicians must agree to provide primary medical care. Although the ARC does not specifically define “primary care”, it limits waivers to applicants who have completed a residency in one of the following areas of specialty: family practice, general pediatrics, obstetrics, general internal medicine, or psychiatry.

What role does a state governor play in the process?

Although the J-1 waiver application is submitted to the ARC administrator, the governor of the state where the physician will work must provide a written recommendation in support of the waiver before the waiver recommendation will be issued by the ARC.

How many hours must a physician work per week?

Following federal regulations, physicians must work 40 hours a week providing patient care at the designated ARC worksite. Time spent on-call or travelling are not included in the 40-hour work requirement. For obstetricians, however, exceptions are mad to allow travel and on-call time.

What locations qualify for ARC waivers?

The ARC will only consider applications for waivers in HPSAs in the ARC counties and cities previously listed.

What recruiting requirements apply to ARC waiver cases?

Employer sponsors are required to demonstrate that they have made a “reasonable good faith effort” recruiting a U.S. doctor for the job opportunity in the same salary range within six months before the waiver application request. Acceptable recruitment includes, but is not limited to, the following:

Advertisements in newspapers and medical journals of national and statewide circulation.
Job opportunity notices placed in appropriate medical schools including all medical schools in the state.

What rules apply to the employment contract with the physician?

The ARC requires the items previously noted that are applicable to all federal agencies granting shortage-area recommendations (modified to meet ARC’s additional restrictions). These include:

A minimum of three-year employment term;
Employment of not less than 40 hours per week of primary care;
The physician’s services to be performed in a HPSA; and
A contract with no noncompetition clauses.

A significant additional requirement is a liquidated-damages clause that states the following:

Any breach or non-fulfillment of conditions will be considered a substantial breach of this agreement by you. If there is such a breach, [NAME OF EMPLOYER] may, at its options, terminate this agreement immediately. In addition, it is agreed that [NAME OF EMPLOYER] will be substantially damages by your failure to remain at [NAME OF EMPLOYER] in the practice of medicine for a minimum of three years and that, considering that precise damages are difficult to calculate, you will agree to pay to [NAME OF EMPLOYER] the sum of $250,000.00 for failure to fulfill your minimum three-year contract. In addition to liquidated damages, [NAME OF EMPLOYER] will recover from you any other consequential damages, and reasonable attorney’s fees, due to a failure to provide services to [NAME OF EMPLOYER] for a minimum of three years, EXCEPT THAT, the full-time practice of medicine at another licensed medical facility, in a Health Professional Shortage are (as defined by the United States Public Health Service) within the Appalachian Region (as defined by ARC) shall be considered the same as full-time practice of medicine at [NAME OF EMPLOYER] for purpose of this paragraph. In the event of a dispute under this paragraph, either party may submit this matter to binding arbitration.

Note the following regarding the ARC liquidated-damages clause:

Employers are not barred from including a separate consequential or liquidated-damages clause.
The damages clause declines proportionately each month the doctor has served.
Employers can still sue and collect consequential damages and attorney’s fees if the doctor has breached the agreement.
Doctors can avoid the liquidated-damages clause if the physician agrees to work in another licensed medical facility in an HPSA in an ARC county.
The clause can only be enforced by the employer.
Unlike the Delta Regional Authority, the other regional commission that grants J-1 waivers, the ARC liquidated-damages clause may not be waived from inclusion in the agreement by mutual waiver of the employer and employee.

Also included in the agreement must be a “J-1 Visa Policy Affidavit and Agreement” which is to be signed by the physician. These generally reinstate the federal waiver requirements regarding waivers and notes the liquidated-damages clause and addressed future transfers by the J-1 doctor. The physician must agree that “in the event of a transfer, under the ARC liquidated damages clause, a transfer notification form must be obtained by the ARC. This form must be filled out and returned to the ARC with a copy of the State Contact.” This requirement can be confusing due to a lack of language referencing this requirement in the liquidated-damages clause previously quoted. Practically, the ARC is known to be quite aggressive in attempting to prevent a physician from transferring to locations outside the ARC. Indeed, the J-1 Visa Policy Affidavit and Agreement actually states that if the physician does not comply with the ARC program rules, “The Office of the ARC Federal Co-Chair will notify the USCIS and recommend deportation proceedings be instituted against me.”

It is worth taking note, however, USCIS’s position as the sole arbiter in approving a waiver transfer. It has a specific set of rules which govern J-1 transfers, and, as long as a physician complies with these rules, USCIS has the authority to approve the H-1B transfer even in situations wherein the original sponsoring agency objects. That being said, USCIS may also consider the opinions of the original sponsoring agency, which often benefits physicians who have the support of the sponsoring agency when it seeks an early transfer.

What does the ARC require employers to post concerning charges for health care services?

As previously detailed, all employers seeking federal waivers based on work in underserved areas must accept Medicare and Medicaid, while also providing care to indignant patients. The ARC expands on the indignant care requirement by mandating that employers agree not to charge more than the usual and customary rate in the particular HPSA where services are being provided. Patients with third-party insurance may be charged the full fee for service. Furthermore, individuals are considered indigent patients if they are at or below 200 percent of the federal poverty guidelines, and such patients must be provided a sliding-fee scale for services.

The ARC requires employers to post a notice in a conspicuous location in the patient waiting are at the practice site seeking a J-1 doctor. The notice must include at least the following information:

This practice has adopted the following policies for changes for health care services:

We will charge persons receiving health services at the usual and customary rate prevailing in this area. Health services will be provided at no charge, or at a reduced charge, to persons unable to pay for services. In addition, persons will be charged for services to the extent that payment will be made by a third party authorized or under legal obligation to pay for services.

We will not discriminate against any person receiving health services because of his/her inability to pay for services, or because payment for the health services will be made under Part A or B of Title XVIII (“Medicare”) or Title XIX (“Medicaid”) of the Social Security Act.

We will accept assignment under the Social Security Act for all services for which payment may be made under Part B of Title XVIII (“Medicaid”) of the Social Security Act to provide services to persons entitled to medical assistance under the plan.

If the basis of a waiver application is a “population group” HPSA designation, ARC requires the employer to provide recent documentation indicating the employer has served Medicare, Medicaid, and medically indigent patients, as well as their continued efforts to do so.

Will the ARC sponsor waivers for physicians who have been out of status?

ARC states in its rules that it will not sponsor physicians who have been out of status for longer than 180 days since receiving his or her J-1 visa. The ARC requests copies of the DS-2019 and other immigration documents in order to verify the legal status of the physician.

How does a J-1 physician apply to the ARC program?

Dissimilar to the other regional commission waiver program, the ARC does not accept applications directly from employers. The employer must, instead, submit the application to a state health office designated to accept ARC applications for the counties and cities in that state; generally this is the same office as the one which accepts Conrad 30 applications. States are allowed to add additional requirements for applications chosen to forward to the ARC and many exercise this option. The state added requirements can include:

A more restrictive definition of “primary care”;
Site pre-approval;
Agreeing to submit regular reports to state health authorities;
Further restrictions on accepting indignant patients;
Barring physicians with sub-specialty fellowship training; and
Additional state affidavits of compliance.

Does the ARC charge a fee for its program?

The ARC does not charge a fee for its program, but individual states do have the authority to charge a fee for accepted applicants.

Delta Regional Authority

Though originally modeled after the ARC, the Delta Regional Authority (DRA) is a regional commission with a largely different J-1 waiver program and, based on its program rules, is considered to be more “user friendly” than the commission after which it was modeled. Furthermore, the DRA administrators have enjoyed a cordial relationship over the years with both the health care and legal communities.

What counties are in the DRA?

Alabama: Barbour, Bullock, Butler, Choctaw, Clarke, Conecuh, Dallas, Escambia, Greene, hale, Lowndes, Macon, Marengo, Monroe, Perry, Pickens, Russell, Sumter, Washington, Wilcox

Arkansas: Arkansas, Ashley, Baxter, Bradley, Calhoun, Chicot, Clay, Cleveland, Craighead, Crittenden, Cross, Dallas, Desha, Drew, Fulton, Grant, Greene, Independence, Izard, Jackson, Jefferson, Lawrence, Lee, Lincoln, Lonoke, Marion, Mississippi, Monroe, Ouachita, Phillips, Poinsett, Prairie, Pulaski, Randolph, Searcy, Sharp, Stone, St. Francis, Union, Van Buren, White, Woodruff

Illinois: Alexander, Franklin, Gallatin, Hamilton, Hardin, Jackson, Johnson, Massac, Perry, Pope, Pulaski, Randolph, Saline, Union, White, Williamson

Kentucky: Ballard, Caldwell, Christian, Calloway, Carlisle, Fulton, Graves, Henderson, Hickman, Hopkins, Livingston, Lyon, Marshall, McCracken, McLean, Muhlenberg, Todd, Trigg, Union, Webster

Louisiana: Acadia, Allen, Ascension, Assumption, Avoyelles, Beauregard, Bienville, Caldwell, Cameron, Claiborne, Concordia, Catahoula, DeSoto, East Carroll, East Baton Rouge, Evangeline, Franklin, Iberia, Iberville, East Feliciana, Grant, Lafourche, Jackson, Jefferson Davis, Livingston, Jefferson, Lincoln, Natchitoches, La Salle, Morehouse, Plaquemines, Madison, Ouachita, Richland, Orleans, Rapides, St. Helena, Pointe Coupee, Red River, St. Landry, St. Bernard, St. Charles, St. Mary, St. James, St. John the Baptist, St. Martin, Tangipahoa, Tensas, Union, Vermillion, Washington, Webster, West Baton Rouge, West Carroll, West Feliciana, Winn

Mississippi: Adams, Amite, Attala, Benton, Bolivar, Carroll, Claiborne, Coahoma, Copiah, Covington, DeSoto, Franklin, Grenada, Hinds, Holmes, Humphreys, Issaquena, Jasper, Jefferson, Jefferson Davis, Lawrence, Laflore, Lafayette, Madison, Marion, Lincoln, Montgomery, Panola, Marshall, Quitman, Rankin, Pike, Smith, Sunflower, Sharkey, Simpson, Tippah, Tallahatchie, Tate, Tunica, Union, Walthall, Warren, Washington, Wilkinson, Yalobusha, Yazoo

Missouri: Bollinger, Butler, Cape Girardeau, Carter, Crawford, Dent, Douglas, Dunklin, Howell, Iron, Madison, Mississippi, New Madrid, Ozark, Pemiscot, Oregon, Phelps, Perry, Reynolds, Ripley, Scott, Shannon, Ste. Genevieve, St. Francois, Stoddard, Texas, Washington, Wayne, Wright

Tennessee: Benton, Carroll, Chester, Crockett, Decatur, Dyer, Fayette, Gibson, Hardeman, Hardin, Haywood, Henderson, Henry, Lake, Lauderdale, Madison, McNairy, Obion, Shelby, Tipton, Weakley

What are the DRA’s recruiting requirements?

The DRA has a requirement which mandates that employers make a good faith recruiting effort to recruit an American doctor in the same salary range for a period of 60 days before submitting the waiver application.

There are three levels at which recruiting must take place: national, in-state, and with state medical schools. Employers are unable to satisfy the national and in-state advertising requirements with general advertisements run by recruiting firms. Internet-only advertisings suffice will not suffice either by themselves, but online advertising can supplement other submitted recruiting documentation.

Documentation of national recruiting can include the following:

Journal advertisements (such as in JAMA or the Wall Street Journal)
National newspaper advertisements (such as USA Today or the Wall Street Journal).

Documentation of in-state advertising can include newspapers with a major in-state circulation, publications in the local practice area such as local newspapers or magazines, and in-state medical journals or publications.

Combined with online advertising and documentation of hiring a recruiting firm, employers can supplement their recruiting documentation with evidence of targeted mailings to physician candidates.

What types of physicians may apply for DRA waivers?

Unlike the ARC and HHS clinical programs, the DRA will support both primary care and specialty medicine positions. The definition of “Primary Care” is specified you include general or family practice, general internal medicine, pediatrics, obstetrics/gynecology, and psychiatry. The following additional information should be included with applications for specialists:

A letter composed by the employer explaining the reasons the particular specialist is needed in the area. The letter must discuss the impact the lack of specialty care has on the community, the closest location where the specialty is available if one is not in the area, the availability of public transportation to get a specialist and proof that the specialist’s practice would be viable in the service area.
A description of the demographics of the community and any other evidence regarding the particular need of the community for the specialist (for example, documentation of high diabetes rates if an endocrinologist is being recruited).
A letter from the chief medical officer of the facility where the doctor is going to see patients.
A minimum of two letters of support from primary-care physicians and/or primary-care facility representatives regarding the need for the specialty
Any additional evidence which would illustrate the need for the specialist, such as letters from other physicians in the specialty area or local health officers in the community.

In what types of locations can DRA physicians work?

The DRA accepts applications for waivers for doctors who agree to work in HPSAs, MUPs/MUAs, and, for psychiatrists, in MHPSAs. The DRA requires these locations be in DRA counties, but it will sometimes consider applications for locations outside of the DRA, if the employer can demonstrate people residing in the DRA will be better served as a result of granting the waiver. In recent years, a number of hospitals in DRA counties have closed their doors, forcing residents of those counties to go to hospitals in other areas, sometimes outside of the DRA region. Recognizing this need, the DRA began approving “out of jurisdiction” waivers for these and similar types of situations.

What are the contract requirements for a DRA waiver application?

DRA contracts must comply with the Department of State restrictions on federal agency waivers based on working in shortage area locations, which include:

A term of employment of at least three years;
Employment of not less than 40 hours per week of primary care or specialty medicine;
The physician’s services will be performed in a HPSA, MUA, or MHPSA and the identification number of the shortage location; and
The contract will contain no noncompetition clauses.

Similar to the ARC, the DRA requires a specific liquidated damages clause in its contracts. Dissimilar to the ARC, the clause can be deleted from the contract if a waiver is signed by both the employer and the doctor. This change in policy occurred relatively recently, and was incited by a number of employees expressing concern that while the provision benefits employers, it was also deterring doctors from taking part in the program due to the perceived draconian effect of the contract clause. The DRA liquidated damages clause is the following:

Any breach or non-fulfillment of condition will be considered a breach of this agreement by you. If there is such a breach, [NAME OF EMPLOYER] may, at its option, terminate this agreement immediately. In addition, it is agreed that [NAME OF EMPLOYER] will be substantially damaged by your failure to remain at [NAME OF EMPLOYER] in the practice of medicine for a minimum of three years and that, considering that premise damaged are difficult to calculate, you will agree to pay [NAME OF EMPLOYER] the sum of $250,000.00 if you fail to fulfill any portion of your minimum three-year contract. Should you perform any portion of the employment contract, you agree to pay a pro rata share based upon the number of months you failed to fulfill (i.e., $6,945.00 per month). In addition to liquidated damages, [NAME OF EMPLOYER] will recover from you any other consequential damages, and reasonable attorney fees costs and expenses, due to the failure to provide services to [NAME OF EMPLOYER] for a minimum of three years, EXCEPT THAT, the full-time practice of medicine at another licensed medical facility, in Health Professional Shortage area (as defined by DRA) shall be considered the same a fulltime practice of medicine at [NAME OF EMPLOYER] for purpose of this paragraph. In the event of a dispute under this paragraph, either party may submit this matter to binding arbitration.

The parties agree in consideration of compliance with the forgoing, to indemnify and hold harmless the Delta Regional Authority and/or any person, firm or corporation now or hereafter acting as agent for the DRA in any capacity, and any successors in any such capacities and successors and assigns of DRA, from and against any loss, claim, damage and expense in connection with, or arising out of, compliance with the waiver application set forth herein or any other litigation.

The waiver language is the following:

[Employer] and [Physician] here by agree to waiver the Liquidated Damages Clause required by Delta Regional Authority J-1 Waiver Program Affidavit Agreement.

DRA takes no position with respect to the inclusion of any other clause mandating consequential or liquidated damages being paid to the employer.

What is the DRA filing fee for a J-1 waiver application?

As of the publication of the 2016 edition of the Physician’s Immigration Handbook, the fee is $3,000, and it is non-refundable if the waiver is rejected. A 50 percent refund will be granted, however, as long as the waiver application is withdrawn within 20 calendar days after the DRA receives the application.

What items must be included in a DRA application?

Letter of Opinion from legal representation attesting to the truthfulness of the application and the qualification of the facility to sponsor the doctor.
Form G-28, Notice of Entry of Appearance of Attorney or Accredited Representative, with the $3,000 check attached.
Cover letter from the employer stating:a.) The facility is in a shortage area (with the shortage area number, the country code, and the address of the facility);
b.) Patient data, including Medicare, Medicaid, and Uninsured patient information, for the past three years;
c.) Details outlining the services the physician will provide patients in the service area; and
d.) Information on the current patient to physician ratios in the practice area.
DRA J-1 Policy Guidelines signed by employer and physician;
J-1 Affidavit and Agreement signed and notarized by the physician;
Department of State Data Sheet and Department of State Case Number (2 copies each);
Curriculum Vitae including Social Security number;
Notarized Department of State Exchange Visitor Attestation Form;
Copy of executes employment contract with the terms noted above;
Proof the prevailing wage will be paid (either Department of Labor Level I or Level II wage for the position in the practice area);
Documentation of recruiting efforts (see above);
Proof of current HPSA, MUA, MUP, or MHPSA designation for the service location;
At least three letters of community support. Two must be from practicing physicians in the area who are permanent residents or citizens of the United States. If there are not two other physicians in the area, letters can come from physicians who are close to the area. Other letters may come from the community leaders or elected officials;
Letters of recommendation from individuals who know the J-1 physician’s qualifications;
Copies of the physician’s diplomas, licenses, board certifications, and other credentials;
Proof of the facility’s existence such as business license, occupancy permit, phonebook listing, etc.;
Copy of the sliding-fee scale;
List of all psychiatrists, specialists or primary care physicians in the county or parish and their field of practice (for cities fewer than 100,000 people);
Copy of complete passport;
Copies of IAP-66/DS-2019 forms;
Copy of I-94;
Personal statement from the physician stating the reasons for not wishing to fulfil the home residency requirement and the reasons for practicing in this particular field of medicine, how their expertise could impact patients in the area and reasons for accepting this employment contract;
A copy of the DRA document checklist;For specialists, add the following:
Sponsor’s letter outlining the reasons a physician or an additional physician in the specialty area is needed in the community. The letter should also document the impact of the service not being adequately available in the area, the closest location where the specialty is available, whether public transportation is available, and evidence the specialty practice will be viable in the area;
Service Area Description containing information on the service area demographics and any other information the DRA may use to determine exceptional need for the specialty;
Letter of support from chief medical officer of the facility;
Letter of support from at least two primary-care providers in the area; and
Any additional information that would show the shortage in the specialty field.

Also noteworthy is the DRA’s request for a picture of the physician to be emailed to the agency. The DRA additionally requires employers to send a completed DRA physician verification form to the DRA within a few weeks of the beginning of the physician’s employment.

What is the typical timeline for the DRA waiver adjudication?

The DRA is known for its expedience in application reviews. It has an established 45-day period to allow state health agencies to comment and an overall 60-day adjudication timeframe, but waiver applications are typically adjudicated within just a few weeks.

The Department of Veterans Affairs

The Department of Veterans Affairs has a decades-old J-1 waiver program which was designed to allow local VA facilities to fill shortage positions with J-1 international medical graduates. Prior to its elevation to cabinet position, the original name of the department was the Veterans Administration (VA), a moniker by which it is still referred by many, including the author of this chapter, to this day.

When may a VA hospital initiate a J-1 waiver request?

Under normal circumstances, federal agencies are prohibited from employing someone other than a U.S. citizen. There numerous exceptions to this general rule including situations in which the agency is unable to find a qualified citizen after exhausting extensive avenues of recruiting, which is the basis for the VA’s waiver program. The VA program rules state, “VHA requests waivers only in cases of overwhelming need. Facilities are to request waivers only as a last resort, when comprehensive efforts to attract applicants from U.S. citizens and permanent residents of the United States have failed to produce a qualified candidate.” Furthermore, VA facilities are required to pursue “employable non-citizen candidates” like H-1B and O-1 visa holders before they can even consider filing a J-1 waiver request.

Must the VA meet the same Department of State requirements as other federal shortage area-based waivers?

The federal laws apply but are slightly modified for the VA. The most glaring of these modifications is that the VA hospital does not need to be in a HPSA or MUA. Also, the requirement to treat Medicare and Medicaid patients is not applicable, since veterans are cared for under their own separate system. The agency does require a three-year employment commitment and extensive recruiting documentation, and physicians are expected to begin work on an H-1B within 90 days. Furthermore, recruiting is a requirement in VA cases.

What are the VA’s recruiting requirements?

The VA requires “robust recruitment” to demonstrate the VA hospital is unable to locate a “minimally qualified citizen or permanent resident candidate” for a critical position. It is not sufficient that the J-1 is more qualified than the other candidates. The recruiting efforts must have taken place within six months prior to the submission of the waiver request to the VA Health Resource Center in Topeka, KS.

There are four mandatory recruiting steps to the VA waiver recruiting process:

Posting the job for 30 days as vacareers.va.gov
Posting on careerbuilder.com and www.healthecareers.com;
Contacting the Healthcare Retention and Recruitment Office (HRRO) for recruitment placement assistance and potential lists of candidates; and
Placing an electronic advertisement for 30 days on http://careermd.com.

From the following list, two additional steps are required:

Posting the position on craigslist.com for the particular city where the facility is located;
Posting the position on the website for JAMA- the Journal of the American Medical Association;
Posting on the New England Journal of Medicine Career Center at nejmjobs.org;
Posting on the Association of American Medical Colleges job board at aamc.org/careerconnect;
Posting directly to a professional association website or professional journal job posting website page for the specialty being recruited; and
Using a physician recruiting firm (which may require separate approval).

VA recruiters are encouraged to recruit at medical schools and through medical societies.

Citizens and green-card holders who apply or are referred by HRRP must be contacted “promptly” and pursued “actively” by the facility. “Actively” refers to the act of interviewing each candidate at least by telephone and eliminating qualified candidates only if they lack the minimal qualifications for the position. This must be documented in reports and qualification evaluations that are submitted with the waiver application.

Note that a recruitment process must be “ongoing and comprehensive” and may not be initiated solely for the J-1 waiver process.

Can J-1 waiver physicians work at other facilities?

A number of VA hospitals are located either on or adjacent to medical centers, and the VA accommodates joint appointments. Though the VA prefers 100 percent VA employment, it will allow joint appointments in which (a) the physician is working full-time for the VA and five-eighths of the total employment is with the VA. In such cases, the other facility will file a concurrent H-1B petition. The recruiting for joint appointments must reflect the position’s status as full-time, and applicants will be considered for employment by both institutions. The applicants are sent initially to the VA, and the other facility can review an applicant only after the completion of the VA’s processing. If a position requires a faculty appointment at an affiliated academic institution and the institution rejects the applicant, then the VA facility must provide a detailed explanation as to why each citizen or permanent resident was rejected and why the J-1 doctor meets the faculty position requirements.

What percentage of the physician’s time must be devoted to patient care?

The VA requires the position to include at least 51 percent patient-care duties.

Can a J-1 physician being considered for a waiver have an immigration violation, such as an “overstay”?

If a J-1 has outstayed their welcome, they cannot be considered for a waiver according to VA rules. However, J-1s are “duration of status”, therefore there is not a specific date on their I-94s that they could overstay. Presumably, what the VA means is the physician has remained beyond his or her DS-2019 expiration date, plus a 30-day grace period (though, technically, under immigration law, this is not an “overstay”).

When must the physician be available to begin work?

While Department of State regulations require a physician to begin working within 90 days of the waiver approval, the VA also requires that the physician be available within six months from the time the waiver request is received at the VA Health Resource Center in Topeka. In the event that employment fails to commence within the six-month window, the VA facility is expected to continue recruiting.

When is the earliest a waiver application will be accepted for a J-1 waiver position?

One of the least appealing aspects of the VA waiver process is its bar on accepting applications more than six months in advance of a physician’s availability to begin working. For individuals finishing on June 30, this means the VA will not accept an application prior to January 1, effectively giving the physician one attempt to apply for a waiver. If the waiver is rejected under those circumstances, the physician will have no time left to find another position before the completion of his or her program.

Can two VA facilities file at the same time for a J-1 waiver?

The VA prohibits candidates from pursuing opportunities simultaneously at multiple VA facilities. If another facility has begun processing a J-1 waiver, the second facility must wait for the conclusion of the initial process.

Will the VA sponsor J-1 waivers for physicians currently on O-1 visas for other employers?

The process is not immediate. The VA will hire a physician on an O-1 visa and petition for the physician to transfer the O-1 to the local VA facility. After a three-year period of employment in O-1 status, a VA facility is authorized to initiate the physician’s change of status from O-1 to H-1B in order to avoid annual O-1 visa extensions. If, still, a facility is unable to recruit a qualified citizen or permanent resident, the facility may then seek a waiver during the final six months of the initial three-year O-1 period. Additionally, any time previously accrued with the VA will not be considered by the institution as having satisfied the physician’s three-year service obligation.

What items must be included in a VA waiver application?

Network Review and Certification of Facility Waiver Request (VA-Form 10-0422b) provided by facility;
Facility Director’s Request (VA Memorandum) describing the position, the appointment date, details on any joint appointment arrangement, a description of the health care needs the J-1 physician will help address, a description of recruiting efforts and contact information for a facility employee who can address technical questions about the application;
Copy of the Waiver Review Application Data Sheet;
Copy of physician’s DS-2019 forms;
Copy of physician’s visa;
Copy of physician’s I-94;
Department of State explanation for periods outside United States while in J-1 status (signed and dated by physician);
Signed and dated Department of State three-year employment agreement;
Signed and dated Department of State 18 USC §1001 statement;
Document providing physician’s address and contact information;
Department of State personal statement signed and dated by physician;
National Practitioner Data Bank (NPDB) Report or Healthcare Integrity and Protection Data Bank(HIPDB) report;
HHS Data Bank/Office of the Inspector General (OIG) and List of Excluded Individuals/Entities Search (LEIE) report;
Application (VAF 10-2850), Section III signed by Chief of Staff and a supplemental page listing any gaps in the dates of training;
Current license and VA Form 5-4682, Certification of Licensure;
Physician’s curriculum vitae;
Educational Commission on Foreign Medical Graduates (ECFMG) certificate;
S. Medical Licensing Examination (USMLE) score reports for Steps 1,2, and 3;
Evidence of required recruiting;
Recruiting report showing:
a.) Total applications received (including the J-1’s waiver application);
b.) Total number of U.S. citizen applications received;
c.) Total number of permanent-resident applications received;
d.) Total current nonimmigrant applications received;
e.) Total citizens interviewed;
f.) Total permanent residents interviewed;
g.) Total nonimmigrants interviewed;
h.) Total citizens declined;
i.) Total permanent residents declined;
j.) Total nonimmigrants declined;
k.) Total citizens non-selected;
l.) Total permanent residents non-selected;
m.) Total nonimmigrants non-selected; and
n.) Individual recruitment reports of contact for each applicant including curriculum vitae, applications, citizenship, and contact information. The report of contact must provide information explaining why the candidate was not qualified (if applicable) and whether the position was offered (and the result of that offer)
Local facility contact information.

What are the steps for procuring a VA J-1 waiver?

Step 1: Obtain a Department of State J-1 waiver number.

Step 2: The local VA facility director forwards the fully documented waiver application and the Network Review and Certification of Facility Waiver Request signed by the clinical manager to the Veterans Integrated Service Network (VISN) director.

Step 3: The VISN reviews the waiver request to ensure the waiver is justified and fully documented and the loss of the J-1’s services would necessitate discontinuance of a program.

Step 4: The VISN then submits the request through the VA Health Resource Center (HRC) to the Workforce Management and Consulting Office (WMCO) in the Veterans Hospital Administration central office. The HRC performs an initial review to determine compliance with J-1 waiver requirements. The WMCO conducts a final review and then forwards the request to the VA under secretary of Health to forward to the Department of State’s Waiver Review Office.

The cumbersome VA process, which requires four separate approvals within the VA, can take many months to approve.

What is the role of an outside immigration lawyer in the VA J-1 waiver process?

Outside lawyers are permitted to assist in the preparation of a J-1 waiver application for a physician being offered employment by a VA facility. The VA does, however, bar facilities from signing a Form G-28, so USCIS will not communicate with the attorney or copy the attorney on any correspondence. All correspondence would go to the VA facility, which would in turn notify the attorney and the physician. Furthermore, the VA will not pay attorney’s fees for preparation of the H-1B petition. Because the Department of Labor forbids an employee from paying such fees, this effectively prohibits the physician from having legal representation during this phase of the waiver application process.

What is the VA’s policy regarding physicians that fail to fulfill their obligations?

If a physician fails to show up for work or leaves prior to the completion of three years of service, the facility director is required to notify USCIS and the Department of Labor regarding the withdrawal of VA sponsorship for the waiver.

When is the VA required to re-recruit for the position?

One of the least attractive requirements for J-1s considering VA waivers is a requirement that the position be re-advertised whenever an H-1B extension is requested, as well as when permanent residency is sought. If qualified U.S. applicants apply, the physician may be terminated.

Department of State IGA Waivers

The Department of State not only issues waiver recommendations based on the requests of federal and state health agencies; it also can act independently and serve as an interested government agency (IGA). There is not much in the way of a formal application process, save for the physician applying for a waiver case number and submitting in writing the request for the Department of State to act as an IGA.

The agency does not have concrete rules dictating when it will serve as an IGA, but typical examples are for a J-1 when the J-1 and J-2 have divorced and for J-2 children who are over the age of 21. In the circumstances of a divorce, the Department of State may request documentation that the divorce was not undertaken for immigration purposes. Situations wherein there is a substantial hardship to the J-1 applicant who is ineligible for a hardship waiver because there are no qualifying American relatives, the agency also has adjudicated waivers.

Are there other federal agencies that can grant waiver recommendation?

Any federal agency is potentially capable of granting waivers to physicians, as long as the previously mentioned requirements are followed. Contingent upon the head of the agency or his or her designee signing the waiver request letter and the waiver request not being based on working in an underserved agency (or the agency following the extra rules applicable to such waivers), a physician may seek a waiver with that agency’s support. There is a small number of agencies with J-1 programs that are rarely utilized by doctors that may occasionally become available. Included in this number is the U.S. Department of Defense, the Department of the Interior, NASA, the National Science Foundation, and the Department of Energy.

Back | Index | Next

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

ABCs of Immigration: ‘Public Interest’ Waivers Under the Federal J-1 Waiver Programs

Related Posts