© 2013 Attorney Farhad Sethna
I try to keep my readers up-to-date with immigration developments by posting summaries of new laws, proposals, governmental policies and immigration related news on my blog. I invite you to bookmark it and visit it often. You can find all my collected articles – many of them in Spanish – at blog.immigration-america.com
With regard to this particular issue, in March 2013, a group composed of Senators Kolbuchar, Heitkamp, Moran and Collins proposed a new bill that would impact very positively on J-1 visa holders who seek waivers of the 2-year home residency requirement under current US law. Indeed, the proposed legislation seems almost too good to be true, bestowing benefits to physicians and their families through the entire process from J-1 waiver to permanent residency. The purpose of the bill is – to quote from the legislation – “To provide incentives to physicians to practice in rural and medically underserved communities and for other purposes.”
As many readers already know, J-1’s who are subject to the 2-year home country residency requirement may obtain a waiver of that residency requirement if they are able to perform a qualifying service in the United States. That qualifying service includes working in a health professional shortage area or a medically underserved area, with the US Department of Veterans Affairs, with the Appalachian Review Commission, or any other Interested Government Agency (“IGA”). Additionally, every state has a department of health which can recommend upto thirty J-1 waivers per year in a HPSA, MUA, or FQHC. The waiver candidate must serve in such a position for at least three years. Alternatively, a waiver candidate may serve for five years, and as a result of this extended service, skip the “Labor Certification” portion of the immigration process and directly apply for an Immigrant Visa and Permanent Residency under the “National Interest Waiver” for physicians.
While most states require a majority of the positions be utilized for primary care, some states allow a number of slots to be allocated toward specialty practice as well. Some other states also allow for placement in non HPSA/MUA areas.
Given this background, the proposed new law makes several significant positive changes to the J-1 waiver and related H-1b, Immigrant Petition and Permanent Residency processes.
Please keep in mind: first of all, this is only a proposed law. It has not even been introduced before the whole Senate. Second, even if it passes the Senate, it will have to be reconciled with a House bill. What the final terms and conditions might be is unknown at this time. The final bill can be vastly different from the version being introduced in the Senate. The final version has to be signed by the President of the United States before it can become law.
Given this understanding, lets explore some of the changes being proposed by the new law. These changes are as follows:
1. Clarifies the start date of the qualifying H-1b waiver employment:
To clear up the tension and confusion caused by the present laws’ regulatory requirement that employment commence within 90 days of receiving the waiver recommendation and H-1b status, the proposed law makes it very clear that the physician commence his or her waiver employment within 90 days after the later of any of these events: (1) receiving a waiver (for example, from a State agency); (2) completing Graduate Medical Education or training; or (3) being granted work authorized non-immigrant status (ie, a H-1b) Interestingly, the bill provides that qualifying waiver service can be accrued in any work-authorized non-immigrant status, not just H-1b status as is currently required.
2. Codifies the “dual intent” for J-1’s as well:
So far, the law codifies the “dual intent” exception for only H-1b’s and L-1 beneficiaries. The proposal would codify the concept of permitting J-1 waiver beneficiaries to similarly enjoy the peace of mind that “dual intent” brings.
3. Clarification that a medical degree is indeed an “advanced degree”:
This specific provision removes the subjective interpretation of the law which gave the USCIS wide latitude to rule that physicians may not be able to qualify for Employment Based Second Preference classification. It would enable the petitioning employer to seek immigrant classification under the Employment Based second preference, thus accelerating the alien physician’s eventual permanent residency by several years given the glacial speed at which the Employment-Based third preference is currently moving.
4. An increase in J-1 “Conrad 30” slots per state:
Up until now, every State could award a maximum of 30 J-1 waiver slots in HPSA’s or MUA’s. Under the proposed law, that will change. Each year the number of waivers allowed to a particular state will increase by five provided the state has filled more than ninety percent of its previous year’s quota. This means the state will have to award approximately twenty eight or more J-1 slots in any fiscal year to be eligible for an increase of five slots for the subsequent fiscal year.
Once a state has been allocated forty five or more J-1 slots, the state must show that it has used at least ninety five percent of its quota in order to qualify for a five-slot increment per year.
5. J-1’s seeking Conrad-30 waivers may also now be employed in a teaching capacity with academic institutions:
Previously, J-1 waivers were approved only for primary care service in a FQHC’s, HPSA or MUA or limited specialty practice areas. Now, under the proposed law the J-1 waiver can be approved by the director of the State health agency for upto three positions per state per fiscal year in a teaching or academic capacity with a qualifying teaching institution. Therefore, professors at medical schools who have J-1 status could qualify for upto three J-1 waiver slots per year. There is no discussion in the proposed law as to whether this number will also be increased on an annual basis similar to the raw number of J-1’s being increased. Also, the proposed law does not discuss whether these three slots will be part of the overall thirty-slot quota per state or whether they will be a separate three-slot allocation per state.
6. Completing qualifying medical service at a different employer:
The law proposes that a J-1 physician be allowed to complete his or her qualifying service at another health care facility or organization if extenuating circumstances caused the physician’s transfer. If the physician chooses to quit his job and transfer to another employer without showing any extenuating circumstances, the physician will be penalized by having to perform an extra year of service for every unexplained termination.
7. Workforce protections:
The proposal adds protections for both employers and physicians. Physicians must be compensated for “on call” time limited to a maximum number of hours stipulated in their contract. The contract must identify who will pay for malpractice insurance, and if the employer, then the what amount. The contract must also stipulate all the locations where the physician will work.
8. The J-1 waiver beneficiary spouse and children also benefit from any waiver granted to the principal applicant.
Until this time, the USCIS is taking the position that the spouse and children had to independently obtain waivers of the 2-year home country residency in order to remain with the principal applicant in the United States. Of course that caused enormous hardship to families of J-1 candidates especially those whose spouses were also medical practitioners working on their own J-1 status.
All of this has changed thanks to the proposal: the alien’s family will not be held hostage in order to obtain “green cards” but will be able to apply for their own alternative nonimmigrant visa category and finally, for immigrant status, using form I-485.
9. Grace period for physicians transitioning jobs:
Under the current law, there is no “grace period” for an alien on H-1b status to remain in the USA if the employment relationship is terminated. Under the new proposal, any alien physician whose employment relationship terminates within the three-year qualifying period will be granted a grace period of 120 days to find alternative qualifying employment.
10. National Interest Waiver:
The proposal permits the current 5-year waiver service period to commence in any status – not just H-1b – in order to be counted toward a waiver. Thus, if a physician were to commence service in J-1 status in a MUA or HPSA, that might count towards the 5-year period of service to qualify for a National Interest waiver.
There is much to like about this very positive bill. Given that most legislation coming out of Congress recently has tended to be anti-immigrant, and especially anti-foreign worker, this bill is a refreshing change from the usual round of immigrant-bashing. However, it has not even been passed in the Senate, much less introduced in the House, so stay tuned! For emerging details, please bookmark and visit my blog, at blog.immigration-america.com.
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.