Do you know how to secure a J-1 Visa Waiver for hiring a foreign physician? How long will the process take? What are the must-know timing considerations? This webinar is designed for healthcare employers who are interested in the Conrad 30 J-1 Visa program.
When a foreign physician uses a J-1 Cultural Exchange Visa to attend a residency or fellowship, a law known as the Immigration and Nationality Act § 212(e) requires them to return home in order to share their newly acquired skills with residence of their home country. The 212(e) requirement can be “waived” if the physician is sponsored by a medical facility located in an underserved area of the U.S. In this webinar and accompanying transcript, business immigration attorney Michael Murray, Founding Partner of FordMurray, explains the Conrad 30 J-1 Visa Waiver program to simplify the complex and multi-step process of applying for a waiver.
For additional information about the Conrad 30 J-1 Visa Waiver, download our complimentary, 10-Page Guide for Healthcare Employers in Underserved Areas. For questions about Conrad 30 J-1 Visa Waivers, or any other business immigration concerns, contact our attorneys.
Healthcare Employer’s Guide to J-1 Visa Waivers
Transcript for Video:
Hello, and welcome to FordMurray’s presentation on hiring J-1 foreign physicians. My name is Mike Murray, I’m an immigration attorney, and me and our firm work with organizations, hospitals, facilities all across the nation in this J-1 physician process.
And we really like to do the work, because it’s one of those nice win/wins in the legal world, to assist a facility to get a great new doctor on staff, and then at the same time, as you will see, the foreign physician is very appreciative in being sponsored by you, the healthcare employer, to be able to continue their career here in the United States without interruption.
We’ve been doing this kind of work, where we see, especially by those clients who are kind of doing this for the first time, or trying to think through whether or not they want to go through the process, is a lot of kind of anxiety and fear of what is known as kind of a complicated and burdensome process.
And certainly, it is very technical and kind of hard to get into if you haven’t done it before, and that’s the purpose of this webinar series, to give you the confidence to kind of think through the issue, to see the process, to give you the terms and the knowledge that you need to get into the process and be successful. And so that’s what we’re trying to lay out for you.
What we want to do is first kind of start easy, and that’s why we’re calling this first part of the webinar series “Getting Our Feet Wet.” We’re going to do a couple webinars, and today is really just for the overview. Helping you to kind of get your thoughts and your head into the process, defining some of the key terms for you, and really giving you a broad overview of the different requirements and steps that will be necessary to go through the process.
And then in the succeeding webinars, what we will do is to dig more deeply into the details. We’re going to talk about who qualifies, which facilities and which physicians can use the Conrad 30 program that we’re going to talk about. We’re going to dig into kind of process steps and time frames.
And also, and maybe most importantly, try to highlight for you some of the traps that the different government agencies, Immigration and State Department and the state health agencies, perhaps not intentionally, but some of the traps that are kind of out there that you can fall into, and most importantly, how do you avoid those pitfalls?
Now, we think this is important for you to take a look at, because potentially, if you’re listening to this webinar, you have this question of how is it that we can hire these J-1 visa physicians? We get these resumes, we want to look at them, but we’re just not confident that we can go through the process.
We hope to dispel some of the fear and confusion around the program, and it goes without saying, and I think it’s true, that this is a complicated process. Most legal processes are, and there is a pretty steep learning curve at the outset of the process.
But I do believe that once you get through it, and once you’ve done it for the first time, it becomes much simpler, much easier to do and to repeat. And the proper knowledge and execution is what’s going to win the day for you. And in this webinar, I think that you’re going to get a lot of the knowledge that you need to be confident about the process.
And then execution is also important. This is a technical filing process, involving immigration law and different government agencies, and certainly that’s where we can come in to assist you, whether help in training your own staff, your own team, to go through the process and to be successful.
But ultimately where you want to go, is to develop a program. A program where you have the institutional processes and procedures to identify the right candidates and get through the J-1 waiver process successfully, and that certainly will pay long-term benefits to you. We have some clients who will process one J-1 waiver physician per year, we have some that will do 10 to 15 per year, and certainly that adds a lot of great new staff resources to your team, to your hospitals, and is something that you want to get right.
As I said, we’re going to kind of take it slow, and ease into the subject. What is it that makes the J-1 visa, or what is it about the J-1 visa that makes it so hard to hire a foreign physician? And before I answer that question, let’s start off by backing up just a little bit, and do what I’ll call kind of a little Immigration 101. And the question I want to ask is so what is a visa altogether?
US immigration law is set up to have different categories of individuals who can enter the United States. These are foreign nationals, which means that they’re not US citizens, they’re not green card holders. Hopefully, they fall into some other kind of category that’s going to allow them to enter the United States and do a certain type of thing for a certain type of time. And importantly, in these categories, they are allowed to do certain things, but they cannot do other things.
And these different categories are known as visas, or visa status. So as an example, a foreign national who enters the United States on a B-2 tourist visa is only allowed to enter the United States to be a tourist, or to do things of touristic pleasure. For example, going to Disney World, or going to a cousin’s wedding. They can do all those types of tourist activities, but they may not work in the United States. They may not stay here long term. They’re here for a short term stay. So there are important authorizations and restrictions that are tied to them.
Now, other types of visas are work visas. So, for example the H-1B visa, which we talk a lot about later in the webinar series, the L-1 intra company transferee visa, the O-1 visa, extraordinary ability, that some physicians use. These are all work visas, and those visas allow the foreign nationals to enter the United States and work in the United States, but only to do certain types of work, and only for certain employers, and only for certain periods of time, usually somewhere near that once, capped at five years, six years, seven years, or something along those lines.
So that’s kind of the visa framework of US immigration law. You have to fit into the right category, and within that category, there are restrictions and limitations that the individual and the sponsoring employer, such as a hospital or a clinic, also has to abide by.
Now that brings us to the famous J-1 visa. I say it’s famous, because for you, it’s probably something you’ve heard of before, that you’ve thought about, that you haven’t quite tackled though. And it’s famous for me because the J-1 visa is kind of notorious in US immigration law, and amongst US immigration attorneys. It will be a thorn in your side when one of my clients has had a J-1 visa, and something called the return home residency requirement attaches to them. We’re going to get there, but let’s talk about this in a little more detail.
The reason the J-1 visa can become an issue is because it’s different than all other US visas. It’s known as a cultural exchange visa. Now what that means is that a foreign national is invited to the United States to undertake a certain type of program. But it’s a cultural exchange, which means that when they’re done with the program, there’s an expectation that they will take their expertise and knowledge and experiences that they’ve gathered here in the United States, and then return home to their home country or other permanent resident state or country, and then spread that knowledge and expertise in that country, amongst those citizens there.
Now, that requirement doesn’t attach to every J-1 visa. The J-1 visa category is very broad, and it can be confusing because it can be used in so many very different ways. For example, there’s a J-1 Summer Work and Travel program, there’s a Seasonal J-1 program that allows foreign nationals to come and work at resorts and restaurants for peak season. There’s a J-1 visa for Au pairs, or international nannies. There’s one for professors and scholars, and then there’s also one for our foreign medical graduates who are coming here to do residencies and fellowships in the United States.
And in that regard, it’s a type of training visa, right? These are all trainees learning how to be specialist doctors, and so for our purposes, this is a J-1 trainee cultural exchange visa.
This type of visa has to be sponsored by an exchange agency, a J-1 exchange organization. It will not be sponsored directly by your hospital or clinic, that’s not allowed. It has to go through this kind of middle-man exchange agency, and for foreign physicians who come here for residency training, that agency is known as ECFMG, or the Educational Commission on Foreign Medical Graduates. That is the agency that will govern and regulate which foreign physicians, those foreign nationals who have graduated from foreign medical schools, will be authorized and allowed to come to the United States to do a US residency.
And as you know, there are hundreds of medical schools in the world, some of them are in the Caribbean that are pretty well known to us in the United States, some of them are in Russia or India or China or in Europe, so there are quite a lot of graduates of these foreign medical schools, and many, many of those graduates want to come to the United States for lots of good reasons. We’re the world leader in medicine and technology, our quality of life is very good here.
And so, there’s this huge desire and demand for these foreign doctors to come to the United States, and it’s ECFMG who is kind of the gatekeeper, that decides who can come and who can’t come. And primarily the way they do it is by administering the ECFMG examination. And from what I hear, it’s a very tough test, it’s a very rigorous test of medical knowledge and training, and far less than half of those foreign physicians who take it actually pass the examination, because as I say, it’s tough.
And so those foreign physicians who are coming here on the J-1 visa trainee program are very well qualified. They tend to be very smart and very high-achieving, and are usually great candidates for any facility in the United States.
Now, I should say that not every foreign physician that comes to the US for residency or fellowship will necessarily be on a J-1 visa. They may be on other types of visas, like an H-1B visa or something like that.
There are pros and cons for these physicians, on choosing which way to go. Some training programs will only allow the physicians to do J-1, or only allow them to do H-1B. I won’t go into all the details on how that’s chosen, how that’s decided by the programs and the physicians, but I will say is that you only need to worry about this J-1 waiver question if in fact the physician is on a J-1 visa for their training, and usually that’s marked pretty clearly on their CV. And when you see that, then you’ll know that you’ve got to wrestle with this issue, and whether or not you can hire this foreign physician.
Okay, so now we know what the J-1 visa is, and why it’s so special. And this is why it’s so challenging and potentially problematic. That cultural exchange piece that I talked to you about makes this requirement, the 212(e) requirement attach to every J-1 visa holder who is a foreign physician graduating from a US residency or fellowship program. When they graduate, the cultural exchange aspect requires them to go back home. They can’t stay here and simply roll over into working for a hospital or a clinic. The 212(e) requirement requires them to go back to their home country of origin, or their place of last permanent residence, if they moved away from their home country before they came here. And that’s known as the 212(e) requirement.
It’s called the 212(e) requirement because Immigration and Nationality Act, our Federal immigration statute, Section 212(e) is the section that sets forth the requirement and attaches this tough requirement for the physicians to go back home after they graduate from a US residency or fellowship. It’s a very tough and durable requirement. It’s hard to quit.
And as an example of that, as an immigration lawyer, when you sometimes come upon a client who has had immigration issues in the past, or has been here too long on status, they’ve overstayed their student visa or something like that, or they worked here illegally. The silver bullet usually, for an immigration lawyer, is when that foreign national client marries a US citizen. That’s kind of the panacea. It forgives almost all prior wrongs, and that foreign national can fix their immigration status here in the United States.
The 212(e) requirement even survives that. That’s how tough it is to get around that requirement. It’s a very, very hard requirement. And basically says that once the J-1 program is done, the foreign national has to go back home, or to their country of last permanent residence.
This is where the J-1 waiver process comes into play. And that’s what the Conrad 30 program is, it’s the J-1 waiver program. Which means, and we’ll talk about this in more detail, that if we successfully sponsor, as a healthcare organization, the foreign physician who has a J-1 visa, through this J-1 waiver program, then the physician does not have to fulfill that 212(e) return home requirement. Instead, we will set it up so the physician can join your practice right after graduation, stay here, and serve time under the program with your facility, and then actually be able to continue to stay here for the long term in many cases, after the J-1 waiver service is done.
So that’s what we’re trying to do here. That’s the big goal. To use these different government programs to waive that 212(e) return home requirement. We are really going to focus on the Conrad 30 program. There are other types of 212(e) waiver programs. There’s a hardship-based category and a persecution-based category, and those are really kind of personal applications that the physicians can go through based on their personal or family circumstances, or conditions in their home country that they should not be forced to return to.
And then there are other types of clinical waivers like the Conrad program. But the Conrad program itself is the one that’s most often used by health care employers to waive this 212(e) requirement, and that’s what we’re going to focus on.
And as the name implies, this program allows each state in the US to give 30 slots to foreign physicians who have a J-1 visa and need the waiver. So there are 150 slots up there altogether.
Now, the Conrad 30 program is run by, at least initially, and overseen by Department of Health offices in each of the 50 states. Now overall, the J-1 waiver process is a three step process that you’re going to start after you hire the physician, even before they have completed their residency, and the first application is going to go to the State Department of Health office in the specific state.
Once we clear that, then the application moves on to the State Department, the Federal State Department in Washington, DC, for further review and processing. And if we get through that stage, then the application goes on to US Immigration, at which time they will do the final adjudication of the J-1 waiver application, and change the immigration status of the physician from J-1 visa holder over to something called H-1B, professional worker. That’s kind of how this process unfolds, and how the physician turns from a trainee, someone on a cultural exchange visa, over to a worker, someone on a work visa known as an H-1B visa, professional work visa.
It’s a good thing, in my mind at least, that the Conrad programs are diverse, and each State kind of runs the program its own way. There are a lot of commonalities between the different state offices, and we’ll talk about that, but there are a lot of differences, as well. There are some state offices that work really, really well, and are efficient and accessible, and really care about the work they do, and do a great job. There are others that, usually in the larger states, that are just kind of overrun by volume, and they’re much harder to access, and they take much, much longer, couple months, to process the waiver applications.
And so, in that regard, each application and each state has to kind of be taken on a case by case basis, on its own merits. And we will, in the later part of this series, kind of do some studies, some case studies on the different states and how they run their programs.
But as I say, the initial application has to go to that Department of Health office in the specific state, and those offices are the ones who will do the initial choosing and deciding as to which physicians will get one of those 30 slots that each state has.
Now I just mentioned that, amongst these 50 different state programs, there are a lot of common core attributes. Kind of common standards and requirements that will have to be met, and that’s because the Conrad program overall is a Federal program, with core requirements that the states have to abide by.
And the highlights there are that the facility, the hospital or clinic that is looking to sponsor the J-1 visa foreign physician, needs to be located in a Federally designated underserved area. For example, an HPSA, Health Professional Shortage Area, or a medically underserved area. And these are areas that are defined and designated by Federal agencies. There are exceptions to that, as we’ll talk about here in a minute.
And then the other kind of big ticket attribute, common attribute, is that these, the Conrad 30 program is mostly focused on physicians who do primary care work. So family medicine, internal medicine, psychiatry and obstetrics. However, not every state restricts and organizes their programs right along those lines. There are exceptions.
So, some of the varying attributes are that many, many states allow sub-specialists to participate in their program, some states will kind of set aside maybe 10 of their slots for sub-specialists. Others will open up all of the slots, all 30 of the slots, for sub-specialists, just depending upon how that state set up their program, what they think their needs are for their medical professional shortage areas.
And similarly, some states will allow, and this is really important, will allow facilities that are not, by definition, located in the Federally designated area, underserved area. So for example, some facilities that are near underserved areas or defined underserved areas, that can make a good showing that the physicians, once they join the practice group, will actually be substantially seeing, for a lot of their time, patients from underserved areas. So that there’s a catch area that allows the physician to actually devote a lot of their time to underserved patients.
That, too can qualify. So if you’re a healthcare employer who has kind of thought “Well, I’ve looked at the map, and we’re not in a green box or red box, we’re not in an HPSA or an MUA, it’s not worth our time.” Maybe think again, if you’re located near one of those areas and you know that you see a lot of patients from that population. We’ve been successful with many of our clients, of getting these J-1 waiver slots, even if the facility is not in one of those defined areas.
Now, to actually have the waiver vest and complete, there is what I call a term of service. So after you have processed the J-1 visa waiver through the different departments that I mentioned, and the physician is able to change their status from J-1 visa over to H-1B visa, that’s the time where the term of service has to start. And the foreign physician has to serve at your facility for at least a three year period. At least a three year period, and that service has to be done subject to a contract at the front end, that has a bunch of different provisions in it that are required by the Conrad program.
And we’re going to talk about all of these different details, or these subjects in more detail, in the future webinar segments. But here I just want to give you a broad overview of what’s going to be required.
So, the contract will be a little different for these physicians, and we can certainly help you get those contracts into shape that they need to be in. And once the three year term of service is completed, that’s actually when the waiver fully vests, and the 212(e) return home residency requirement that I mentioned, actually falls away. So it’s not at the front end. Once you get … It’s a little confusing because you will get something known as an I-6-12 waiver and notice of approval, but that’s just the approval and the green light to start the three year term of service. And then once the three year term of service is done, then the 212(e) requirement falls away, and that physician will no longer have to return to their home country or their place of residence for the two year period.
And it’s a special achievement for that physician. You will see that they’re very appreciative that their facility sponsor has done this for them, and has now kind of removed the barriers that they had before, for fully developing their career in the United States. And then for you as a facility, it’s also a great achievement, because now you know there is not going to be an end date for this physician in their work for you.
You’ll have to take other steps, which we’ll talk about here just in a second, to keep the employees for the long term. But again, it’s just a nice line to cross over, and a nice accomplishment for everyone involved.
You know, keep in mind that that three-year term of service will have to be full time work. There’s no exceptions to that. You can’t have a part-time employee who does a four year term of service. It’s got to be full time for the three years. Now, one way to kind of organize that in a different way is that the physician is able to split that time amongst different sites or even different hospitals, within the same system.
We have some clients who do this, and so that physician can spend time at three different hospitals in the same system, just so all those are pre-approved, they’re in the underserved area, and then you can add up all the time spent at those different facilities to make the full-time requirement.
So, there’s a little bit of flexibility in the program for that type of arrangement, which is becoming pretty common because of all the mergers and consolidations that we’re seeing.
Now we’re coming to the end here, of the first part of this segment. We wanted to give it to you in kind of smaller, digestible portions. But I wanted to talk about some common questions that I get about this term of service.
The facility, during the three-year term of service, may sponsor its physician for permanent residence, okay? And that’s important, because as I mentioned, the physician’s going to move from that J-1 visa over to an H-1B work visa. And the H-1B work visa can be issued in two or three year increments. So the first three year increment will be used to satisfy the three year term of service. Then you can extend the physician’s status for another three years, so it’s six years altogether.
But still, overall, that’s a relatively short period of time for having an employee. And so you will be interested and certainly the foreign national physician will be very interested in being sponsored for permanent residence, or a green card. And there are several different programs under the Federal government to sponsor the physicians for this kind of status. And if you get the status then though, that six year restriction goes away, the physician is a permanent resident or has a green card, and then there’s no limitation on how long they can work for you, which is fantastic.
And the question I get is, well if the visa hasn’t vested, if they haven’t finished three-year term of service, don’t they have to wait to apply for the green card? The answer is yes and no, as it is many times when it comes to the law. You may start the green card process for that physician during that first three year term of service, but you may not complete it. The final phase of the green card.
Many times, the green card process is a three-part process. The employer can sponsor and complete the first two steps, but the final step, which is called a I-45 Adjustment application, that can’t be finished or even started until the three term of service is done. Okay?
And another question I get is well, during that initial three-year term of service, is the physician tied just to our facility, or may they transfer to another facility or find another employer altogether? And you would think that since you sponsored them, very specifically through this Conrad program, that they are tied only to you for that first three year period. But that’s not the case.
There is what I call kind of an escape hatch in the regulations that allows the physician, and this is fair, you know, if they find themselves in a situation that’s just simply not working out, if they can show the Immigration Service that there are extenuating circumstances, meaning that basically there’s a really, really good reason, either on a personal basis or a professional basis, for the physician to transfer to another underserved area facility. There is a processed petition for that, to allow them to move over.
So, in our Getting Our Feet Wet segment here, I hope that I’ve conveyed to you these kind of highlighted concepts here. These foreign physicians are here doing their residency and fellowship training on a J-1 visa, on a cultural exchange basis. And because it’s an exchange visa, for these physicians there is this 212(e) return home requirement that kicks in and by law attaches to them. And it says that you have to, this physician has to go back home, interrupt their career here, for at least two years, and not come back before that. Which, as you can imagine, is pretty onerous for them.
But this Conrad 30 program allows the facility to sponsor the foreign national physician, to waive that 212(e) requirement only after the physician has finished the three-year term of service. And then once you’ve done that, hurray! You and the physician have kind of gone down a journey which allows them to continue their career here, and even go for permanent resident status and have their entire career in the United States.
And they, the facility in turn has a great new physician, who usually is very grateful and appreciative that you’ll do this program for them, and that you’ve invested the resources and time and care in their career, to help them stay here in the United States.
I hope that was helpful for you. We have more to learn about the process. Next we’re going to talk about how you assess whether the physician and the facility are good candidates for the Conrad 30 program. So we will email out the time and place for the next part in the series. Thank you for your attendance, and I hope you learned a lot.