Visa sponsorship requires planning
By Heather Sivaraman, Attorney at Law, Law Offices of Dayna Kelly, Carrboro, NC
Currently comprising a quarter of the US physician workforce, international medical graduate (IMG) physicians are an essential group to consider for recruitment purposes, particularly for positions located in geographic areas with limited applicant pools.
Recruiting IMG physicians can be complex and daunting. This article will provide you with an overview of the most common sponsorship process for IMG candidates who complete graduate medical education (GME) in J-1 visa status. Understanding what is involved in visa sponsorship of J-1 candidates will give you confidence in your ability to determine whether your organization can utilize these valuable recruits.
Recruiting IMG physicians can be complex and daunting.
The majority of IMG physicians who come to the United States for GME enter the US on a J-1 visa. Upon GME completion, J-1 medical residents are required to return to their home countries for at least two years, or apply for and receive a waiver of that requirement. This process is referred to as obtaining a “J-1 waiver.”
The most common route to a J-1 waiver is through the Conrad 30 program. Conrad 30 waivers are available to physicians who agree to work full-time for at least three years in a federally designated Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA). The Department of Health in every state has the ability to grant 30 waiver slots each fiscal year to qualifying facilities. Each state has its own application process and eligibility criteria for the Conrad 30 program, but all states require at least a three-year commitment from the physician, and require the facility to be located in a HPSA or MUA.
The Department of Health in every state has the ability to grant 30 waiver slots each fiscal year to qualifying facilities.
In addition to J-1 waivers available to facilities in underserved areas, many Conrad 30 programs will accept up to 10 J-1 waiver applications from facilities that are outside geographic HPSA/MUAs. These are referred to as “FLEX” slots. The exact criteria for FLEX slots and their availability are state-specific, but non-HPSA/MUA facilities may be able to sponsor a J-1 candidate for a waiver by using a FLEX slot if the facility qualifies.
In addition to the Conrad 30 program, there are also federal agencies that sponsor J-1 waivers. For example, the US Department of Health and Human Services can sponsor J-1 waivers for physicians practicing primary care or general psychiatry in a HPSA or mental health HPSA. This program is a common default for facilities located in states that use up their Conrad 30 waiver slots within the first few weeks or months of the fiscal year. In addition, the Delta Regional Authority and Appalachian Regional Commission6 are two separate programs that cover many states in the southeast. Finally, there is a limited waiver category available to physicians who can demonstrate that a US citizen or permanent resident spouse or child would suffer “extreme hardship” if the physician were required to fulfill the home residency requirement.
In addition to the Conrad 30 program, there also are federal agencies that sponsor J-1 waivers.
For recruitment purposes, you do not need to memorize all of the types of waivers and the eligibility criteria for each. However, it is helpful to know that there are several different types of waivers, each with different eligibility criteria. Your immigration attorney can assist you in determining whether or not your facility will qualify for one of the state or federal waiver programs.
Once the determination has been made that the facility qualifies for a waiver program, the employer submits a request to the state health department or federal government agency on behalf of the physician. The physician cannot file on his or her own behalf. If the state health department or government agency agrees to recommend a waiver, it will forward its recommendation to the US Department of State’s J-1 Waiver Review Office. Within approximately one to two months of receiving the interested government agency recommendation, the Department of State will send its recommendation to the US Citizenship and Immigration Services (USCIS). The USCIS has the final authority to grant the J-1 waiver.
Receiving a waiver of the two-year home residency requirement is just the first step in a two-step visa sponsorship process for all J-1 candidates. Approval of the J-1 waiver only serves to eliminate the physician’s obligation to fulfill the home residency requirement. After waiver approval, the employer must then file a separate immigration petition with USCIS to change the physician’s visa status from J-1 to H-1B. The purpose of the H-1B petition is to authorize the physician’s employment.
Receiving a waiver of the two-year home residency requirement is just the first step in a two-step visa sponsorship process for all J-1 candidates.
The H-1B sponsorship requirements impose a number of responsibilities on the employer, which include meeting the prevailing wage rate for similarly employed physicians in the employer’s geographic area. In addition, the employer must maintain certain stipulated documents about the conditions of employment and employment verification in a file that must be produced on demand. Your immigration attorney can help you to make sure that you are meeting all of these requirements and to make sure you are prepared for an audit.
Finally, it’s important to note that current Department of Labor policy considers all fees associated with H-1B sponsorship including legal and filing fees to be part of the employer’s business expense and therefore, the fees must be paid by the H-1B employer. USCIS charges filing fees for the H-1B petition, including a $325 filing fee, a $500 fraud prevention and detection fee, and a $750 or $1,500 H-1B employer fee. These fees will also vary based on corporate structure and company size, and exemptions are available for qualifying facilities.
The physician’s H-1B status will be valid for an initial period of three years, and it may be renewed for an additional three years. After waiver and H-1B sponsorship, the physician must complete his or her three-year federal J-1 waiver service obligation with the sponsoring employer, unless rare and “extenuating” circumstances, such as practice closure, exist. If the physician cannot demonstrate extenuating circumstances and chooses to leave the employment, he or she will be re-subject to the two-year home residency requirement.
The physician’s H-1B status will be valid for an initial period of three years, and it may be renewed for an additional three years.
To summarize, when you are approached by a candidate who is completing residency training in J-1 visa status, there are a few things to keep in mind. First of all, this candidate will require a J-1 waiver, and you will want to know whether or not your facility will meet the criteria for a waiver program. You will want to keep in mind that getting this candidate employment-authorized will be a two step process: first, approval of the J-1 waiver, and then filing the H-1B petition to authorize the physician’s employment. Finally, your J-1 candidate, once sponsored, is likely to remain with your practice for at least the duration of their three-year waiver service obligation, unless extenuating circumstances exist. Keeping these parameters in mind, you are well on your way to considering IMG applicants as viable candidates for your facility.
- American Medical Association IMG Section Governing Council, International Medical Graduates in American Medicine: Contemporary Challenges and Opportunities (January 2010), 35.
- Section 212(e) of the Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §1101 et seq.).
- Pub. L. No. 112-176, 126 Stat. 1325.
Information about the Department of Health and Human Services (HHS) may be obtained at its website: www.hhs.gov/.
DRA’s J-1 waiver policies are found at http://www.dra.gov/delta-doctors/default.aspx
ARC’s J-1 waiver policies are found at its website: http://www.arc.gov/j1visawaiver.
The employer undertakes obligations to both US Citizenship and Immigration Services and the US Department of Labor when sponsoring an employee for H-1B status. For more information, see http://www.dol.gov/whd/immigration/h1b.htm, and www.uscis.gov.
See e.g. 20 C.F.R. §655.731(c)(3).
8 CFR §212.7(c)(9)(iv) and (v).