J-1 & HI-B Visas – Use by Physicians

From Lathrop Gage law firm (www.lathropgage.com):

Immigrant visas are for people who intend to live permanently in the U.S. Nonimmigrant visas are for people with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis – for tourism, medical treatment, business, temporary work, or study.

The J-1 visa is for study. The J-1 visa recipient must return to his or her own country unless a waiver is obtained.

The H1-B visa is for work.

J-1 Visa.

The J-1 visa holder is supposed to return to home country for specific period of time, absent a government waiver. If the J-1 visa holder is subject to the two-year foreign residence requirement, absent a waiver, the holder may not change status to that of H, L, or K, or to immigrant or legal permanent status until you have fulfilled the two-year foreign residence requirement by going back to the holder's home country or receiving a waiver of this requirement.

A J-1 Visa Waiver eliminates the two year home residency requirement, allowing the physician to remain and practice in the United States. State government agencies may also sponsor a J-1 Physician waiver requests, which are called Conrad State 30 programs.

The J-1 Visa Waiver program has been instrumental in maintaining access to healthcare in many rural communities when other recruitment efforts have failed. The J-1 Visa Waiver is contingent on the physician working in a HPSA or MUA, the program produces a win-win situation for the doctor and the community. The physician is able to stay in the United States to practice and an underserved community gets a much-needed doctor.

There are five statutory alternatives upon which to apply for a waiver of the two-year foreign residence requirement:

  • a no objection statement from exchange visitor’s country, issued through its embassy, referred to as a No Objection Letter - takes an average of four months;
  • a request from an interested U.S. Government agency on your behalf, referred to as an International Government Agency Waiver - takes an average of four months (For IGA applications on behalf of foreign physicians, who agree to serve in medically under-served areas, please refer to Federal Register Volume 62, No. 102 of May 28, 1997.); 
  • a claim that you will be persecuted if you return to your country of residence, referred to as an Asylum Waiver - takes an average of nine months; 
  • a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your country of residence, referred to as a Hardship Waiver - takes an average of nine months; and 
  • a request by a designated State health agency or its equivalent - takes an average of five months.

H-1B Visa.

An employer must agree to hire and sponsor the immigrant. (Most medical fellowship programs will not sponsor H1B visas.) The H1B visa is that it is a 'dual intent' visa which means that the recipient can apply for a Green Card (Legal Permanent Residency).

The Process to obtain an H1B Visa is as follows:

Step 1 - Find an H1B Sponsorship Job with a US sponsoring employer.

Step 2 – A US H1B employer files the H1B Visa Application with the US Immigration Bureau. An H1B visa is typically valid for up to six (6) years (3 years with 3 year renewal) and entitles a spouse (husband/wife) and children (under 21) to accompany H1B visa holder and live in the USA on an H4 visa. The H4 dependent visa does not allow your spouse/children to work but they to can get their own H1B visa.

The H1-B visa is a non-immigrant visa, which allows a U.S. company to employ a foreign individual in a specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, professional nurses entering the U.S. to perform complex job duties or supervise nursing operations education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Upon expiration, the alien must have become a citizen or remain outside the United States for one year before another H1-B petition can be approved.

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