By Adam Cohen
Foreign physicians who enter graduate medical education or training[1] under an ECFMG-sponsored J-1 visa program become subject to a two year home residence requirement under Section 212(e) of the Immigration and Nationality Act. Under this requirement, those physicians who have not waived or satisfied the requirement cannot change status to another nonimmigrant classification[2], cannot adjust status to permanent residence, and cannot obtain immigrant, H, or L visas.
Certainly, Canadian physicians can explore many of the same options as other J-1 physicians to waive (e.g. Conrad State 30 or Interested Government Agency J-1 waivers), satisfy, or delay (e.g. O-1 status) the home residence requirement. However, Canadian physicians also have other tools at their disposal to deal with Section 212(e).
First, for a Canadian physician wishing to satisfy the requirement and simultaneously work in the United States, it may be possible for him or her to live in Canada and commute to work in the United States during the entire two year period. Liaison Meeting Minutes from an October 30, 1998 meeting between the former United States Information Agency (USIA) and the American Immigration Lawyers Association (AILA) provided the following useful exchange.
“HOME RESIDENCE REQUIREMENT COMPLIANCE
- Would USIA please confirm that a former exchange visitor who is a Canadian citizen and therefore visa exempt, may comply with the two year home residence requirement by living in Canada and working in the United States? In this scenario, the former visitor has a home in Canada, children attend school in Canada, taxes paid in Canada, health insurance paid in Canada and all other ties are in Canada, and the only U.S. tie is employment in the U. S. in H-1B status.
- Yes. USIA confirms this [again].”
The concept of “sleeping in Canada” to fulfill the home residence requirement is possible because the requirement is based on where one resides and not on where one works. This means that some Canadian physicians can avoid going through the waiver process by, for example, living in Windsor and commuting to Detroit for work. Living and residing in Canada means more than finding a favorite hotel in Windsor or sleeping on a friend’s couch. As the example from the liaison minutes reveals, USIA and AILA were talking about all ties but employment existing in Canada.
Second, recall that Section 212(e) prohibits change of status to another nonimmigrant classification from within the United States, and it prohibits the acquisition of an H or an L visa. However, what happens if one is not within the U.S. and does not require a visa to enter the U.S?
Such is the case with Canadian citizens who are visa exempt with respect to most categories. See the following link from the U.S. Embassy in Ottawa for more information: http://canada.usembassy.gov/visas/information-for-canadians/canadians-requiring-visas.html Canadian citizens can be inspected and admitted at a U.S. port of entry with just, for example, an approved H-1B petition from U.S. Citizenship and Immigration Services. As a result, Section 212(e) cannot prevent Canadian physicians from receiving H-1B and L-1 status.
This approach is not without its own obstacles, which must be considered. Canadian J-1 physicians without a waiver who contemplate working in H-1B status, for example, receive none of the benefits of Conrad/IGA waiver recipients under Section 214(l) of the Immigration and Nationality Act. They cannot change their status within the U.S. from J-1 to H-1B, and they are not automatically exempt from the H-1B numerical cap. Having to acquire an H-1B slot or establish a cap exemption strategy can add complication to one’s immigration case. Additionally, should the physician ever wish to acquire permanent residency, he or she would need a J-1 waiver, because 212(e) also disallows permanent residence.
Third, and finally, it is worth noting that TN (Trade NAFTA) status is available to physicians, although it is solely for those physicians coming to the United States to teach or perform research.
Given the complicated and often restrictive field of physician immigration, it is helpful to be aware of this additional set of tools available to the Canadian physician.
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.
[1] This education or training is clinical in nature and involves patient care, such as a residency or fellowship program.
[2] There are rarely encountered exceptions to this change of status prohibition, namely for changes to U and T status (humanitarian classifications).