J-1 Physicians: J-1 Waiver FAQS
Q: What is the two-year Foreign Residency Requirement for J visa holders?
A: This rule requires some J visa holders to reside in their home country for at least two years before they may obtain an H, L or other immigrant visa to enter the U.S. or adjust their status within the U.S. You have to serve the two years in your home country or country of last habitual (permanent) residence, even if you obtain citizenship in another country.
Q: How may I obtain a Waiver on my two-year residency requirement?
A: Generally, a Waiver may be obtained through one of the following channels:
1. An Interested Government Agency (IGA) may request that the U.S. State Department waive the Foreign Residency Requirement.
2. A Waiver application based on hardship or persecution;
If the J-1 status holder can establish that he/she will suffer persecution upon return to the home country, the foreign residency requirement will be waived. The threat of persecution needs to be based on one of the following three (3) grounds:
b. Religion; or
c. Political Opinion.
Note: The applicant has the burden to prove that he/she “will be subject to persecution.” The applicant need not prove past persecution.
3. Health Agency Request. A designated State Health Agency or its equivalent may request a waiver on behalf of medical doctors who have been offered a full-time job with a health care facility serving an area with a shortage of medical professionals. In order to qualify for the waiver, the person must agree in writing to work at the facility for forty (40) hours per week, for a minimum of three (3) years and must begin work at the health care facility within ninety (90) days of the waive approval. And
4. Hardship – If complying with the Foreign Residency Requirements imposes exceptional hardship on the alien’s spouse or child, and the spouse or child is a U.S. citizen or permanent U.S. resident, the Foreign Residency Requirement may be waived.
Q: What are my chances of obtaining a J-1 waiver?
A: It depends. Every case needs to be determined on its own merits. It is impossible to predict whether one’s J-1 Waiver request will be granted. However, a well-prepared application along with strong supporting documentation will always improve your chances.
Q: May I self-petition for a J-1 Waiver?
A: You are eligible to self-petition for either an “Asylum” or a “Hardship” Waiver. An IGA Waiver request must be made on your behalf by an interested government agency and a health agency request must be made by a State Health department or equivalent.
Q: What is an IGA Waiver?
A: An IGA Waiver is obtained through sponsorship of an Interested Government Agency (IGA). Generally, the potential sponsoring IGA is a U.S. government agency that financially supports your program or has a strong interest in your area of research or study.
Q: How long does an IGA/State Health Agency Waiver take?
A: The amount of time required to obtain the IGA/State Health Agency recommendations depends on each particular IGA. After the IGA/State Health Agency recommendations are received, the State Department then reviews the case (2-3 months). The State Department then forwards its recommendation to the appropriate USCIS Center. Different USCIS centers have different review processing times.
Q: Can I complete my J-1 waiver time commitment in another status than H-1B status?
Q. Can I establish my own medical practice and obtain a J-1 waiver and an H-1B Visa?
A. Most waiver programs will not grant a J-1 waiver to an employer in which the J-1 physician has an ownership interest. Only a few will depending on the particular circumstances. With regard to H-1B visa, it can be obtained even if the H-1B employee has ownership interest in the petitioning employer.
Q. May I change employers while in the process of completing the J-1 waiver program?
A. Short answer is No. J-1 physicians who received a waiver may only terminate employment during the waiver commitment period for “extenuating circumstances.”
Q. What are considered by USCIS to be “extenuating circumstances” to approve an H-1B transfer petition?
A. Extenuating circumstances may include, but are not limited to, closure of the health care facility or hardship to the alien. In determining whether to excuse such early termination of employment, USCIS will base its decision on the specific facts of each case. In all cases, the burden of establishing eligibility for a favorable exercise of discretion rests with the foreign medical graduate.
Q: May a J-2 holder file a waiver petition independently of the J-1 Principal?
A: In most situations, a J-2 Holder is not allowed to file an independent Waiver petition. If a J-2 holder obtains a divorce from the J-1 principal, however, an independent waiver petition may be possible.
Q: How does the annual H-1B CAP affect J-1 Physicians?
A: Physicians who receive J-1 waivers based on either Conrad State 30 program or federal interested government agency are exempt from the H-1B CAP. Also, exempt from the H-1B CAP are physicians working at a college, University, or an affiliated non-profit entity. Residents and fellows who also are training at a university affiliated teaching hospital are exempt from the CAP.
Q. When should I begin the preparations for filing for the J-1 waiver?
A. Each state or IGA has a deadline as to when it starts accepting the J-1 waivers applications. For example: in Texas, The Department of State Health Services will begin accepting applications for the Texas Conrad 30 J-1 waiver program on September 1, 2017 for the 2018-year cycle. Also, the regulations require a J-1 physician who obtains a waiver to begin working within 90 days of the waiver approval. Moreover, the process to change status from J-1 to H-1B could take 3 to 9 months between Department of State and USCIS processes. It is advisable to consult an experienced immigration attorney ahead of time perhaps within 2 year of completing the residency or fellowship program.
Q: May I change from J-1 status to another non-immigrant visa outside the U.S. if I am subject to the two-year residency requirement?
A: Yes. You may obtain a non-immigrant visa (O, E or F visa) from a U. S. Consulate located in a foreign country. But you may not obtain an H or L visa or permanent residence until you have received either a J-1 Waiver or until you have completed the two-year foreign residency requirement. You may change from J-2 to J-1 status while in the United States; however, you may be subject to the two-year foreign residency requirement twice, once as a spouse of a J-1, and again as a J-1.
Q: How do I determine my current legal status in the U.S. as a J-1 Status Holder?
A: To determine your U.S. status, please refer to Forms DS-2019 and I-94. When you entered the U.S., the CBP inspection officer will have marked “D/S” on your Form I-94. “D/S” means “Duration of Status” and indicates that your legal stay is for a certain limited period of time. The Exchange Program Period that is marked on your DS-2019 determines the length of your legal stay within the U.S.
Q: What is my J-1 Visa valid period?
A: The valid period of your J-1/J-2 visa is the period during which you may enter the U.S. This differs from the maximum duration of stay for your J program which defines the longest length of stay for anyone participating under the particular J program.
Q: My DS-2019 (Certificate of Eligibility) and I-94 (Arrival-Departure Record) are still valid but my visa has expired. May I leave and re-enter the U.S.?
A: It depends. You will need a new visa to re-enter the U.S. Reapplying for a J-1/J-2 visa may be risky in some countries.
Q: When my J status expires, do I have a grace period to legally stay in the US?
A: Yes, you still have 30 days grace period to legally stay in the US.
Q: How may I adjust my status to permanent resident, if I am under the J-1 Foreign Residency Requirement?
A: Generally, you cannot petition for an Adjustment of Status if you have not yet met the Foreign Residency Requirement. Once you obtain a J-1 waiver, however, you may petition for an Adjustment of Status. You may also petition for an Adjustment of Status after you complete the two-year Foreign Residency Requirement. You may petition for a permanent residency visa once you begin to live in your home country, but the visa cannot be granted until the Foreign Residency Requirement is completed. You have to serve the two years in your home country or country of last habitual (permanent) residence, even if you obtain citizenship in another country.
Q: May I file for an I-140 (Labor Certification Petition) petition or I-130 (Alien Relative) petition while under the J-1 Foreign Residency Requirement?
A: Yes. Filing either an I-140 or an I-130 does not affect your status. Both allow you to obtain Permanent Residency Status in the future. For example, a person can obtain I-140 approval and then return to his/her home country and after completing the Foreign Residency Requirement, he/she is eligible to apply for permanent residency. Similarly, if a J-1 Waiver is granted, he/she can obtain a permanent visa (or adjust one’s status if in the U.S.) once the J-1 waiver is granted.
Q: What is the relationship between a J-1 Visa and an O-1 Visa?
A: There is no direct relationship between a J-1 Visa and an O-1 Visa. If a J-1 holder is not able to obtain a J-1 Waiver before his/her maximum term expires, an employer may apply for an O-1 Visa on behalf of the J-1 holder and he/she may go abroad to obtain an O-1.
Q: I am living in New York, but your office is located in Houston, Texas. Could you handle my J-1 waiver case?
A: Yes. Law Office of Claudine U. Gasana is headquartered in Houston, Texas, but we handle J-1 waiver cases anywhere within the US since immigration is based on federal law.
What is L-1A visa classification?
An L-1A visa allows U.S. companies with affiliated foreign offices to transfer employees in executive or managerial positions to the U.S. for up to 7 years. The initial granting of an L-1A visa is valid for 3 years. Extensions are allowed in increments of 2 years with a maximum of 7 years allowed.
What are L-1A Visa requirements?
- U.S. company and foreign company must have a qualifying relationship
- Employee must have been employed with the foreign company for at least 1 continuous year in the 3 years preceding his or her admission in the U.S;
- Employee’s position at the foreign company qualifies in as an executive or managerial position;
- U.S. position must employ the Employee to perform the same executive or managerial services.
What are the specific requirements for the L-1 Employer?
- The company must have a qualifying relationship with a foreign company, such as a parent company, branch office, subsidiary, or affiliate of the foreign company. These are collectively referred to as qualifying entities or qualifying organizations. The entities may include corporations, non-profits, religious or charitable organizations.
- The company must also be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
- Doing business refers to the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
What are the specific requirements for the L-1A Employee?
- The employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.
- The employee must have been employed abroad in an executive or managerial position, otherwise known as a qualifying position.
- The employee must be coming to the U.S. to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
What does being employed in an Executive capacity mean?
The Beneficiary must have been employed abroad and seek to be employed in the U.S. in the position that entails the following responsibilities:
- Directing the management of the organization or a major component or function of the organization;
- Establishing the goals and policies of the organization, component or function;
- Exercising wide latitude in discretionary decision making;
- And receiving only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
What does being employed in a Managerial capacity mean?
The Beneficiary must have been employed abroad and seek to be employed in the U.S. in the position that entails the following responsibilities:
- Managing the organization, or a department, subdivision, function, or component of the organizations;
- Supervising and controlling the work of other supervisory, professional, or managerial employees, or managing an essential function within the organization, or a department or subdivision of the organization;
- Having the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is supervised, functioning at a senior level within the organizational hierarchy or with respect to the function managed;
- And exercising discretion over day-to-day operations of the activity or function for which the Beneficiary has authority.
What are the specific requirements for a new office?
One of the benefits of the L-1 visa program is that it allows companies the opportunity to relocate employees to the United States to expand their business and open up new offices. For foreign companies who want to send an L-1 visa employee to the United States for the purpose of establishing a new office, the following criteria must also be met:
- The company must have secured a sufficient physical premise to house the new office.
- The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
- The new U.S. office will support the said executive, managerial, or specialized knowledge position within one year of receiving petition approval.
This article is provided for information purposes. Should you have any questions or be interested to learn more about this topic, contact Immigration Attorney Claudine Umuhire Gasana at firstname.lastname@example.org or call us at 678-296-4796.