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

 

The J-1 and the H-1B Visas: Which Is the Best Choice for Graduate Medical Training?*

International Medical Graduates (IMGs) typically have to make the difficult choice of entering the United States on either a J-1 visa or an H-1B visa to pursue graduate medical training. Whether the physician chooses the J-1 path or the H-1B path can have enormous implications for a physician’s career, so we begin our discussion of nonimmigrant options for graduate medical education programs with a chapter comparing the advantages and disad­vantages of each category. We will then explore each category in depth in the chapters that follow.

To some extent, the decision regarding whether to enter the United States on a J-1 or H-1B visa to pursue graduate medical training depends on the residency program. Though most programs accept either the J-1 or the H-1B, some will only accept one or the other. Programs that limit the choices generally opt for the J-1, and that is a major reason why the percentage of IMGs coming to the United States on J-1 visas is now more than 80 percent compared to H-1B visas.

The increase in J-1 visas basically represents a return to the past since the J-1 visa was the dominant category for most of the history of IMGs coming to the United States for training. Beginning in the mid-1990s, however, many teaching hospitals began to sponsor H-1B visas even though the J-1 was the preferred option. These programs responded to pressure from competing institutions where physicians were requesting sponsorship of H-1Bs.  By 2005, nearly half of the physicians entering the country were on H-1Bs.

The marketplace has changed dramatically over the last decade, and physicians have become savvier about the lesser-known drawbacks of the H-1B; it is no longer seen as a clearly better option to the J-1. And many of the drawbacks of the J-1 visa for graduate medical trainees have been lessened considerably. This chapter discusses the current environment and compares the advantages and disadvantages of each category for the IMG.

What are requirements for and restrictions on the J-1 visa?

The J-1 visa is an exchange visitor visa. Consequently, under §212(e) of the Immigration and Nationality Act (INA), most J-1 visa holders coming to pursue graduate medical training are subjected to a foreign-residence requirement upon conclusion of the J-1 program. That requirement, explored in considerable length in Chapter 5, essentially means that a doctor must return to his or her home country or country of last residency for two years or face the following three consequences:

  1. J-1s subject to INA §212(e) may not change nonimmigrant categories within the United States (e., applications to change categories must be made at U.S. consulates abroad);
  2. J-1 visa holders subject to §212(e) are ineligible to receive an H-1B or L-1 visa stamp at a U.S. consulate; and
  3. J-1s subject to §212(e) may not obtain lawful permanent resident status.

 

Physicians typically have three options when they complete their programs:

  1. Go back to their home countries or countries of last residence for two years and then re-enter the United States on a work visa;
  2. Pursue a waiver of §212(e) by receiving the support of a federal agency or a state health agency (typically based on an agreement to work in a medically underserved community), obtain a waiver based on an exceptional hardship to a U.S. citizen or permanent resident spouse or child, or obtain a waiver based on demonstrating that the applicant will be subjected to persecution (similar to an asylum claim). Most waivers are based on working in medically underserved communities; and
  3. Leave the United States and re-enter on a visa like an O-1 visa for physicians with extraordinary ability in the sciences (note that this really only postpones the need to satisfy or waive §212(e)’s foreign residence requirement).

 

As discussed in Chapter 1, applicants for J-1 visas must have their educational credentials certified as being equivalent to or greater than a U.S. medical degree by the ECFMG. Applicants also must pass parts 1 and 2 of the U.S. Medical Licensing Examination (USMLE), which includes passing the Clinical Skills assessment. That assessment requires a physician applicant to go through a series of interactions with actors playing the parts of patients and health care professionals in order to test the communications skills of a doctor. English examination passage is also required. Because the clinical skills part of USMLE is only offered in the United States, physicians typically need to come to the United States first as visitors before coming on a J-1.

Once a physician is admitted to a training program at a teaching hospital and ECFMG has issued its certificate and a Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, the doctor can apply for a J-1 visa at a U.S. consulate abroad.

What is required of physicians interested in the H-1B visa?

Teaching hospitals are responsible for petitioning for H-1B visas for physicians coming to the United States to train, not ECFMG. Teaching hospitals must demonstrate that they are paying the physicians the higher of the prevailing wage in the community or the actual wage paid to similarly positioned physicians at the hospital.

H-1B physicians must pass all three parts of USMLE before they can obtain an H-1B visa and must demonstrate that they have whatever type of license is required in the particular state where the training will take place. The doctor typically needs an ECFMG certification for licensure.

Applicants and their petitioning hospitals must first file Form ETA 9035, the Labor Condition Application, with the U.S. Department of Labor and receive approval; then they must file an H-1B petition with a U.S. Citizenship and Immigration Services (USCIS) regional service center. USCIS then cables its approval to the U.S. Department of State and the case soon makes it to a U.S. consulate overseas. The physician then applies for the visa at the U.S. consulate. Employers must demonstrate that they are paying the prevailing wage in the community for graduate medical education and maintain public access files. The hospital also must typically demonstrate that it is exempt from the annual quota of 65,000 H-1B visas since H-1Bs typically are not available in July, the time residency and fellowship programs tend to begin. Most training programs are exempt from the quota because universities or nonprofit hospitals either run these programs or the programs are affiliated with universities.

What are the advantages and disadvantages of the J-1 and H-1B visas?

  1. Training Periods

J-1 physicians can remain in the United States on the visa for up to seven years while pursuing graduate medical education. H-1B physicians can enjoy that status for only six years. Furthermore, if a J-1 physician obtains a waiver of the foreign residence requirement under INA §212(e), he or she can get an additional six years of post-training work authorization using an H-1B visa. For physicians in long subspecialty training programs, this can be critical.

  1. Exam Requirements

J-1 physicians are only required to pass the first two parts of USMLE. The third part can be dealt with after the physician is already in the United States as a J-1. H-1B doctors, however, must pass all three parts of USMLE prior to getting the visa.

  1. H-1B Quotas

The H-1B cap noted above is a serious problem for many H-1B physicians in graduate medical training. While doctors usually are not subject to the quota when they enter training programs, because the programs are run by universities or nonprofit employers affiliated with universities, doctors do become subject to the cap when they find their first post-training job. Often, there are no visas available at that time. In years when demand for H-1Bs is especially strong, cap-subject H-1Bs may not be available for as long as 15 months after completing training. That can result in physicians having to limit their job search to positions at nonprofit employers and university hospitals.

  1. Costs

While physicians do not have to bear the filing costs for H-1B petitions, the employing petitioner typically needs to consider costs particularly during this time of tight budget constraints. Furthermore, there is a significantly lower cost for J-1 visas. USCIS filing fees for H-1Bs are typically anywhere from $820 to $3,320 depending on the type of employer and the speed of processing chosen, along with a few hundred dollars for the visa fee at the U.S. consulate. Outside attorneys are often needed for H-1Bs and this can add a few thousand dollars to the process. For J-1s, hospitals typically don’t need to use an outside law firm and the government filing fees are just a few hundred dollars, including the consular visa fee.

  1. For-profit Training Programs

As noted above, for-profit hospitals running training programs are not exempt from the H-1B cap. However, the J-1 visa does not restrict for-profit employers and they are eligible to hire doctors using that visa. Over the last few years, a number of nonprofit teaching hospitals have been acquired by for-profit hospital systems, so this issue is becoming more common.

  1. Ease of Administration

Hospitals hiring J-1 doctors do not have to sponsor the doctors for their visas because that is the task of the ECFMG. While hospitals need to comply with ECFMG rules in order for their doctors to receive ECFMG sponsorship, this is generally not as onerous as the requirements that apply to H-1B employers. Hospitals using the H-1B category to hire a physician must file a Labor Condition Application with the Department of Labor and then an I-129, Petition for a Nonimmigrant Worker, with USCIS.

  1. J-1 Waiver Headaches

The chief reason why doctors avoided the J-1 in years past was the necessity to get a waiver of the two-year home residency requirement in order to remain in the United States. That meant finding a qualifying job in a shortage location, finding a waiver program willing to sponsor (and most were only willing to sponsor primary care doctors), having a waiver slot available and having an H-1B number available to convert to after the waiver was approved. The environment has changed considerably over the last decade. A much larger number of communities qualify as shortage areas eligible for J-1 sponsorship; states can now sponsor up to 10 doctors a year working on “flex” slots in non-shortage area locations; most state and federal waiver programs now sponsor specialists for waivers; and H-1B cap exemptions are available to J-1 doctors receiving waivers based on working in shortage areas or Veterans’ Administration hospitals.

Nevertheless, if a physician is interested in working for an H-1B cap–exempt employer and is not running out of H-1B time, being free of the J-1 home residency requirement is an advantage.

  1. Spouses and Children

J-2 spouses of J-1 physicians can receive an employment authorization document that allows most types of employment, as long as the J-1 spouse remains in J-1 status. H-4 spouses of H-1B physicians are not granted employment authorization. In 2015, USCIS issued a rule allowing some H-4s to receive employment authorization documents, but only when the H-1B physician spouse had applied for permanent residency and the I-140 application had been approved for one year or more. H-4s with spouses in residency and fellowship programs will rarely meet these requirements.

J-2 spouses and children are subject to a home residency requirement along with the J-1. This means that even if the J-1 goes home, the J-2 is still subject to his or her own home residency requirement until the J-1 has finished meeting the residency test.

  1. Timing

Physicians looking to remain in the United States following their training can face challenges switching in a timely manner to their first post-training position, depending on the visa chosen. Those on J-1 visas need to get a waiver of the home residency requirement and then switch to H-1B status, which can often take well over six months to complete (though it is also possible to get it done a few months faster depending on the government agency sponsoring the waiver and how quickly the Department of State is approving its recommendations.

H-1B transfers often can be done in a matter of weeks. The key factor is usually whether an H-1B visa quota number is available. If not, doctors may end up waiting many additional months.

H-1B doctors running short on time left in H-1B status also may need to find post-training employers willing to start green-card processing shortly after starting those jobs, or even, when possible, while the doctor is still in training (this assumes that the doctor qualifies for the job based on training already completed before the green-card process begins). If a doctor has more than a year of his or her six years of H-1B time left when the PERM labor certification application or the Form I-140, Immigrant Petition for Alien Worker, is filed, it may be possible to extend H-1B status as needed until green card processing is finished. If less than a year remains, the doctor could face having to stop work for several months.

J-1 doctors are restricted in how much of the green-card process can progress while they are in their J-1 waiver service period. They can go through the PERM labor certification process and also file an I-140 petition. They cannot file for adjustment of status until their three-year service period is completed. Physicians on the H-1B track can file for lawful permanent resident status as soon as they have their license in place and are qualified to begin the post-training job.

  1. Dual Intent

H-1Bs are “dual intent” visas and a consular officer or USCIS official cannot deny the petition because of concerns that the doctor will immigrate to the United States. That is not the case for J-1s. In reality, most J-1 applications are not denied over this issue, but physicians still need to make the case that they intend to leave the United States when their J-1 time is over.

  1. Contracts

J-1 waiver programs come with numerous contract requirements that some physicians and employers may find onerous. Contracts need to be for three years or more, specify that the physician will be employed at least 40 hours per week, and be for work in an underserved area. Many programs also require employers to strip out restrictive covenants, agree to post sliding fee scales, and drop “without cause” termination clauses. Doctors also may need to sign liquidated damages provisions that require the payment of financial penalties if a doctor leaves the underserved community. H-1B cases don’t require contracts at all and other than the requirement to pay the prevailing wage, employers and doctors have much flexibility in structuring the employment relationship.

Conclusion

There is no clear winner in the bout between the J-1 and the H-1B visa, but the J-1 visa certainly has made a comeback in recent years as many of the worst problems with the J-1 waiver program have been addressed. But the H-1B visa still has attractions that may make it the logical choice for some doctors. The unknown question is how changes being currently considered by the U.S. Congress might affect a physician’s decision-making process. Those changes might include providing H-1B cap exemptions for doctors taking jobs in shortage areas and providing more J-1 slots. Furthermore, the H-1B program in general is under attack and USCIS and Congress are imposing more and more restrictions on the category. How these changes will affect doctors is not yet entirely clear, but will certainly bear close monitoring.

 

*A special thank you to Elissa Taub, attorney at Siskind Susser, PC, who co-authored this chapter.

 

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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.

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