J-1 To H-1B For Physicians

When Are Beneficiaries of a J-1 Waiver Exempt from the H-1B Cap

The Helpful Filing Tips provided by the Vermont Service Center (VSC) address how to complete Part C, Item 4 of the H-1B Data Collection and Filing Fee Exemption Supplement.  That section asks:

“Is the beneficiary of this petition a J-1 nonimmigrant alien who received a waiver of the two-year foreign residency requirement described in section 214(l)(1)(B) or (C) of the Act?”

VSC’s Filing Tips indicate that this box should be checked only if the beneficiary is a physician who received a Conrad waiver. This is partially accurate. While it is correct that the exemption does not extend to those who received a J-1 waiver based on a no objection letter, hardship, persecution, or many Interested Government Agency (IGA) waivers, INA §214(l)(1)(B) or (C) is not limited to J-1 waivers based on a recommendation from a State 30 program.

INA §214(l)(1)(B) or (C) describes J-1 waivers granted to physicians who, after completing graduate medical education (GME) in the U.S., make a three year, full time commitment to serve in a qualifying medical shortage area.

In addition to the Conrad 30 program, these waivers may have been recommended by the Veterans Administration, the Delta Regional Authority, the Appalachian Regional Commission, and the U.S. Department of Health and Human Services.

Physicians who have made a three year commitment and receive a J-1 waiver based on the recommendation of any one of these agencies are required to hold H-1B status for three years to fulfill the waiver obligation. H-1B petitions on their behalf are exempt from the cap, and Part C, Item 4 of the H-1B Data Collection and Filing Fee Exemption Supplement including with the petition should indicate “yes” to this question.

Conrad 30 Waiver Program

The Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. See section 214(l) of the Immigration Nationality Act (INA).  The program addresses the shortage of qualified doctors in medically underserved areas. For more information, see the background on J-1 medical status section below.

Eligibility

Although each state has developed its own application rules and guidelines, the following program requirements apply to all J-1 medical doctors.

The J-1 medical doctor must:

• Agree to be employed full-time in H-1B nonimmigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP).  
• Obtain a contract from the health care facility located in an area designated by HHS as a HPSA, MUA, or MUP
• Obtain a “no objection” letter from his or her home country if the home government funded his or her exchange program
• Agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date his or her J-1 visa expires

See your state’s public health department website for specific details.

Application Process

To apply for a waiver, a J-1 medical doctor must:

• Obtain the sponsorship of a state health department
• Complete the U.S. Department of State (DOS) Form DS-3035, J-1 Visa Waiver Review Application

The state public health department that agreed to sponsor the J-1 medical doctor for a waiver must then send the waiver application to the DOS Waiver Review Division (DOS-WRD) for a recommendation.

For more information regarding DOS filing procedures and documentation requirements, please see the Department of State website.

After DOS Makes a Recommendation

DOS-WRD will notify USCIS electronically of its recommendation.  DOS will notify the J-1 medical doctor, attorney of record (if applicable), and the state agency that requested the waiver by mail.

USCIS will make a final determination on whether to approve the waiver application.  Upon a  favorable recommendation by DOS-WRD, USCIS will generally grant the waiver as long as there are no underlying concerns.  USCIS will provide written notice of its decision to the J-1 medical doctor and his or her representative (if applicable).

Responsibilities After Being Granted a Waiver

If USCIS grants the waiver:

• The petitioner must submit a Form I-129, Petition for a Nonimmigrant Worker, along with the DOS-WRD favorable recommendation letter, in order to request a change of the J-1 medical doctor’s nonimmigrant status to H-1B.
• The spouse and/or child of the waiver recipient must submit Form I-539, Application to Extend/Change Nonimmigrant Status, in order to change status from J-2 to H-4 nonimmigrant status.
• The J-1 medical doctor must practice medicine for at least three years in an area designated by HHS as a HPSA, MUA, or MUP.

Once the Conrad 30 waiver recipient has fulfilled all of the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, he or she (and his or her spouse and/or child) will become eligible to apply for:

• An immigrant visa
• Permanent residence
• H or L nonimmigrant visa 

If waiver recipient fails to fulfill the terms and conditions imposed on the waiver, he or she (and his or her spouse and/or child) will once again become subject to the 2-year foreign residence requirement under section 212(e) of the INA.  

NOTE: It is a very complex and complicated process and could not be handled without the guidance of an immigration attorney. Our Law Firm has expertise in processing these kinds of petitions. Contact us on the given information or schedule a consult for detailed guidance.