By Adam Cohen
In the area of temporary (i.e. non-immigrant) visa status, almost every type of temporary status allows for derivatives (spouses and minor children). This holds true for the most common visas for physicians, J-1 and H-1B. The spouse of a J-1 physician may acquire J-2 status. Relatively speaking, this is an easy status to acquire, and it provides the added benefit of work authorization not tied to any specific employer.
Unfortunately, when the J-1 physician takes the common next step of acquiring a Conrad-based J-1 waiver, the options for his or her spouse can be less promising. The J-1 physician’s receipt of a Conrad waiver necessitates a change of status from J-1 to H-1B to serve out a three year requirement in an underserved area. The derivative status of an H-1B is H-4 status, which does not currently provide work authorization. This can present a great hardship to the spouse, including a serious career disruption. For example, many of the spouses of my J-1 physician clients are physicians themselves who are completing residencies or fellowships in J-2 status.
Some common options for J-2 spouses in this difficult situation are application for H-1B status or application for J-1 status (if they are themselves physicians or are otherwise eligible). Both options present their own unique challenges. The H-1B applicants must be aware of the Government’s inconsistent policy of denying a change of status within the United States from J-2 to H-1B. This obligates the J-2 spouse to return to his or her home country to acquire an H-1B visa and return to the United States. Additionally, H-1B applicants should take notice of the standard numerical limit of 65,000 H-1B visas per fiscal year. Unlike their J-1 physician spouses who are automatically exempt from this highly restrictive cap through the Conrad program, J-2 visa holders must either be counted under the cap or find a cap exemption alternative. The J-2 spouses who opt for J-1 application must be aware that if they are physicians, they will re-subject themselves to a new home residence requirement that will need to be either served or waived. Even if they are not physicians, they may be subject based on foreign or U.S. government financing of their J-1 program or based on being engaged in a field listed on the U.S. Department of State exchange visitor skills list for their country.
A Physician National Interest Waiver may also help. For many foreign physicians, it is possible to file the NIW-based I-140 petition and the I-485 adjustment of status application simultaneously. If the physician can file an I-485, his or her spouse can also file an I-485 based on the principal’s NIW petition. In that case, the physician and his or her spouse would be able to obtain work authorization through the pending green card. This work authorization is not tied to any specific employer. Thus, the spouse can continue employment using this general work authorization.
There are two notes of caution, however. Unfortunately, citizens of India and China are not able to enjoy this benefit. They cannot concurrently file I-485 applications, along with the I-140 petition, due to long visa backlogs. Thus, work authorization through a pending green card is not available for some years. Additionally, some J-1 waiver sponsors will not support the concurrent filing of an NIW and a J-1 waiver. Without this support, the NIW cannot proceed.
Lastly, it is important to note that the White House, the Department of Homeland Security, and Congress (see The I-Squared Act of 2015) have all discussed work authorization for H-4 derivatives. However, nothing has been made final just yet. Stay tuned.
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.