J-1 exchange visitors who received graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act (INA). This requirement means that, upon completion of medical training, the J-1 physician must return to his/her home country (or country of last permanent residence) for a period of at least two years in the aggregate before being eligible for certain nonimmigrant work visas, such as H-1B, or legal permanent residence.
The INA provides multiple paths of waiving the 2-year home residence requirement including if 1) the Foreign Medical Graduate (FMG) believes s/he will be subject to persecution upon returning home, 2) the FMG’s compliance with the requirement would cause exceptional hardship to his/her U.S. citizen or lawful permanent resident (LPR) spouse or child, 3) a U.S. federal government agency has determined that the FMG’s departure from the U.S. for two years would be detrimental to its interest, or 4) if a designated State Public Health Department or its equivalent has determined that the FMG’s clinical service in its jurisdiction is in the public interest. This last pathway is often referred to as the Conrad 30 program and it is the subject of this blog.
State/Conrad 30 Program: A Clinical Service Waiver
The Conrad 30 waiver program allows J-1 foreign medical graduates (FMGs) to apply for a waiver of the 2-year foreign residence requirement with certain commitments. It requires the FMG to provide full-time clinical service in an underserved area for not less than three years. Onboarding a J-1 waiver candidate is a two-step process with three applications. First, the prospective employer files a waiver application with the relevant State health department and with the U.S. Department of State (DOS). Upon selection by the state health department, and recommendation by the DOS, the employer files an H-1B non-immigrant petition with the U.S. Citizenship & Immigration Services (USCIS). Both the waiver and the H-1B petition must be approved in order for the physician to be authorized to work for the petitioning employer pursuant to this program. Given the multiple steps and agencies involved, many clinicians actively seek a waiver-eligible position one year prior to the desired start date.
There are many clinical service programs from which a physician may choose, often dependent on the geographic area of the employment and the practice area of the physician. Every state, as well as the District of Columbia, participates in the Conrad 30 Waiver Program. Although each state has developed its own application rules and guidelines, most programs require that the FMG provide clinical care in a Health Professional Shortage Area (HPSA) or to a Medically Underserved Area/Population (MUA/P). (States also have up to 10 “Flex” spots that allow physicians to work in geographic areas that are not underserved.) Most state health agencies have a dedicated webpage for information regarding their waiver application process.1
The relevant state agency reviews the waiver application and, assuming a favorable review, issues a public interest letter that is forwarded directly to the DOS. The DOS will review the case and forward its recommendation to the USCIS which will in turn issue the waiver approval notice for that physician. Upon a favorable recommendation by DOS, USCIS will generally grant the waiver as long as there are no underlying concerns. Although time frames are subject to change, the entire waiver process takes a minimum of 4-5 months after the waiver request/application is filed. Preparing the filing can take months and needs to be carefully planned in advance.
The final step in this process is the employer’s submission of the H-1B petition, seeking permission to employ the physician. This petition is typically filed upon receipt of the final approval of the waiver from USCIS, but it is possible, in some cases, to file the H-1B petition earlier. (The timing of the filing will depend upon the facts of the individual case.)
Final Thoughts
If the FMG is expected to start work on, e.g., July 1st, the waiver application should be initiated in August or September of the prior year (although some steps, such as recruitment, will already be underway).
Since the process is time consuming and expensive, as well as vital to long-term staffing plans, we recommend that employers contact an experienced immigration professional as soon as a candidate is under consideration. It is prudent to consider the range of immigration issues that can come up in this employment relationship and to address them in the contract. The parties ought to also consider their expectations concerning the physician’s long-term employment once the waiver is completed.
We hope this program can assist employers in addressing any staffing shortages they may be facing and assist physicians in bringing their expert medical services to underserved areas and populations.
1 For example, the state of Maryland provides details about its J-1 waiver program at: https://health.maryland.gov/pophealth/Pages/J-1-Visa-Waiver-Program.aspx (last accessed September 2, 2021).
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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