LEGAL GUIDE
Written by attorney Kaushik Shakti Ranchod | Mar 29, 2011

7 Mistakes Doctors Make When Applying for a J-1 Waiver or H-1B Visa - Part 2

Mistake #4 Failing to meet the J-1 Waiver requirements If you are applying for a clinic that is not in a HPSA, MUA, MUP or Flex 10 location (you should review the state's requirements on whether you can work in a MUA, HPSA or MUP or flex 10 spot) you will not qualify for a Conrad 30 waiver. Thus, when you commence the J-1 waiver process you should ensure that you will be working in a federally designated underserved area.

Mistake #5 Choosing the wrong location of employment It is important that the physician works in an area that is considered a designated medically underserved shortage area or areas. The Department of Health and Human Services designates the medical shortage areas.

States do have some discretion in evaluating Health Professional Shortage Areas (HPSA) and Medically Underserved Areas (MUA) and it is important that you determine the state’s methodology in determining whether the health care facility falls within a designated medically underserved area at the very beginning of the waiver process. There are three primary HPSA designations that many states recognize for the J-1 Waiver Conrad 30 program. The three designations are: Geographic location, Federally Qualified Health Center and Population Group. In addition many states also allow facilities to work in a location that is in a Medically Underserved Area (MUA). It is important to verify with the State’s Health Department to ascertain whether the specific location qualifies as a designated shortage area, since states have the discretion to determine whether or not they will allow you to work in the specific location.

Mistake #6 Doctors in H-1B status do not have a strategy to legally reside in the U.S. after completing residency Typically many H-1B residents complete their residency in July. Normally if a doctor participates in a residency program as a H-1B resident s/he is not subject to the H-1B cap; however when you change employers to a for profit employer you will be “cap subject." There are only 65,000 H1B visas available each fiscal year (which begins on October 1 of each year).

The earliest that an H-1B petition can be submitted is 6 months before the start date of employment. Consequently, you must apply for a position with a start date of October 1st but there is a gap between the date your residency ends, typically July 1st, and the day you can start employment - October 1st. This gap in status is called the “cap gap".

It is imperative that you plan appropriately for this gap by either extending your residency program until October 31st or returning to your home country until the beginning of your start date.

Mistake #7 Failing to timely obtain a state license Submission of your state license is a requirement for filing the H-1B petition. You should allow yourself plenty of time to apply for a license in the state in which you intend to practice. You should do this while you have plenty of time left in J-1 status so that you can obtain a permanent license. If you obtain a temporary license with an expiration date USCIS may only grant your H-1B up until the date your license expires.

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