Written by attorney Kaushik Shakti Ranchod

7 Mistakes Doctors Make When Applying for a J-1 Waiver or H-1B Visa - Part 1

It is common for most of our clients to participate in a U.S. residency program in J-1 or H-1B status. Doctors who entered the U.S. in J-1 status on the clinical training category are subject to the two year home country residency requirement under section 212(e) of the Immigration and Nationality Act (INA), and are required to return to their home country upon the completion of the J-1 program.

If you provided health care services to patients, you probably participated in a J-1 clinical training program. If at the end of the program, you wish to remain in the U.S., you would be required to obtain a J-1 waiver of the home residency requirement before applying for a change of status. Otherwise, you will be required to return to your home country for 2 years before you can apply for a nonimmigrant or immigrant visa to return to the U.S. and work.

If you are a doctor participating in a U.S. residency program in H-1B status you do not need to obtain a waiver or work in an underserved area. However, if you are in H-1B status, you must be mindful of other immigration issues outlined in this report (see Mistake # 6 and Mistake # 7).

Mistake # 1 – Waiting too long to file the J-1 Waiver Conrad 30 application The J-1 Waiver Conrad 30 program (or State 30 waiver) is a State Department Health waiver utilized by foreign medical graduate (FMG) physicians. Designated State Health Departments may recommend this waiver based on an offer to the FMG of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area.

If you are on a J-1 visa and would like to obtain a J-1 Conrad 30 Waiver, you should commence the J-1 Waiver process early. For example, if you complete your residency in 2012 it is prudent to start the process in 2011, one year before you complete your residency.

Many states allow J-1 physicians to file their J-1 waiver applications in the fall. Popular states such as Florida, Texas, New York and California usually fill all of their thirty slots each year. Many states accept applications on a first come first serve basis such as California, Texas and Washington. Other states, such as Pennsylvania, will look at the healthcare needs in the specific area.

With this in mind, it is advantageous for you to commence preparation of the J-1 waiver Conrad 30 application in your third year of residency or one year before your residency ends. Planning well in advance of your graduation is paramount because of the following:

  • Licensing – To ensure that you obtain the appropriate state license you should apply for it before your J-1 visa expires. Submission of your state license is a requirement for filing the H-1B application. When applying for your license you should apply for the type of license that does not expire. If your license has an expiration date the United States Citizenship and Immigration Service (USCIS) may grant your H-1B visa up until the date your license expires.)
  • No objection letter- If you received funding from your home government, you will need to obtain a no objection letter. Depending on your home government, it may take anywhere from a few months to a year or longer to obtain this document.
  • Prevailing Wage Requirements – The prevailing wage as set forth by the Department of Labor must be paid to the physician working in H-1B status. After you find an employer, you should confirm that the employer is willing to pay the prevailing wage. The employer must pay the prevailing wage in order to meet H-1B requirements.
  • Letters of recommendation – Some J-1 waiver Conrad 30 programs require letters of recommendation from mentors or professional colleagues. It can take two or more months to obtain appropriate letters.

Mistake #2 – Waiting too long to find a potential employer Last year I was talking to a very bright primary care physician who wanted to start the J-1 Waiver process approximately one month prior to completing residency. Unfortunately for this doctor, I had to explain to him that he may need to return to his home country and wait for the J-1 waiver to be approved (since it takes the State Health Department, Department of State, and USCIS 2.5-7 months to adjudicate a J-1 Conrad 30 Waiver application).

In order to avoid this mistake, you should start the job search one year before completing residency. For instance, if you are completing residency in July 2012, you should commence your job search ideally on July 1, 2011. Consequently, I recommend that you file your J-1 Waiver application early in the application cycle which will increase your employment opportunities and likelihood of obtaining a J-1 Waiver. Mistake #3 – The Employment Contract Fails to Meet the State’s Health Department Requirements The Employment Contract must include specific terms to comply with the State’s J-1 Waiver Conrad 30 requirements. Each state has their own unique employment contract requirements but in general many states require the following terms to be included in their contract:

  • The contract should include the location of employment and designate the Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA) ID number;
  • The employment contract must indicate that the physician will work full-time (40 hours per week) at the specified health care facility;
  • States may also require that the termination of the agreement only be for cause and not by mutual agreement;
  • The Physician’s salary should be included in the contract;
  • The field of practice and job duties may also be required in the contract;
  • Some states also require the list of benefits, and amount of paid or unpaid leave provided to the physician;
  • Some states require specific language to appear in the contract such as: “All Amendments to this Agreement shall adhere to State and Federal J-1 Visa Requirements;"

It is imperative that the correct terms required by the State Health Department are included in the agreement or certain states will not continue to process the application. We worked with a large health care facility and physician that typically requires their employees sign their standard employment agreement. Initially, they were not willing to cooperate with the physician to include the required terms necessary for the J-1 Waiver Conrad 30 program. However, after I explained to the health care facility the necessity of incorporating the J-1 Waiver Conrad 30 terms the facility amended their contract. Since this was a large institution with a Human Resources Department it took approximately one month for their HR and legal department to approve and incorporate the changes in the contract pursuant to my suggestions. The physician prudently retained our office well in advance of the J-1 Waiver Conrad 30 filing schedule and we were able to revise the contract and submit a successful application resulting in a successful J-1 Waiver Conrad 30 application.

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