Curran & Berger LLP

The physician section of this website provides information relevant to physicians who have received all or part of their medical training abroad and to physicians who receive all or part of their medical training in the United States.  There are many issues surrounding the employment of doctors who are in the United States for training or employment on a non-immigrant visa. This article pays special attention to two of the most frequently asked questions related to the employment and representation of a foreign physician: the two-year home residence requirement and its waiver, and the possibility of permanent residence and the physician’s status during the period when his/her permanent residence application is pending.

The Two-Year Home Residence Requirement

A physician on a J-1 visa is required to return to his/her country of origin for two years if he/she has received funding from the U.S. government, received funding from the government of his/her country of origin, been listed on the skills list of either the country of last residence or country of nationality, or undertaken “graduate medical education or training” in the United States. This does not include training in dentistry and other fields that are not strictly “medical”. As long as the two-year home residence requirement is in place, the physician is not eligible for an H visa, L visa or permanent residence.

Some physicians are able to avoid the J-1 visa and two-year home residence requirement if they qualify for an alternate temporary visa category. Canadian or Mexican national doctors are eligible for a TN-1 visa, but only those who graduated from a U.S. medical school can engage in clinical practice. (All others are restricted to research or teaching with only incidental clinical practice.)  Some residency programs will sponsor foreign born doctors for H-1B visas in lieu of J-1 visas.  Australian nationals may be able to use the E-3 visa category, which is similar to the H-1B.

Doctors of extraordinary ability with “sustained national or international acclaim and recognition” in the field are eligible for an O-1 visa. In this petition, the doctor, sponsored by an employer, must provide evidence that he/she is superior to his/her peers, preferably in a very specifically defined field. Supporting ievidence should include reference letters from peers and colleagues in the specialty field. The initial O-1 visa can be granted for up to three years, followed by  unlimited yearlong extensions.

Waiver of the Two-Year Home Residence Requirement

A physician who is subject to the two-year home residence requirement may be eligible for one of several waivers:

1) Waiver through the Conrad-30 Program and federal agencies: A physician engaged in clinical practice can be eligible for a waiver through sponsorship by a state health department under the Conrad-30 Program or by a specific Federal Government agency. Each state is allowed to issue 30 waivers per year, and details of the process and the requirements for a physician applying for one of these waivers varies widely from state to state. In all states, the doctor must begin practice in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) (the employing institution does not necessarily need to have any stated commitment to serving the poor or underserved, it needs only to be physically located in an underserved or shortage area). In order for the waiver to remain valid, the doctor must begin employment within 90 days of being granted the waiver and must continue working for the same employer for three years under H-1B status. There are also several federal government agencies that are authorized to recommend waivers to the Department of State. Except for the United States Veterans Administration, all of these agencies limit the doctor to primary care and require the doctor to serve 40 hours a week in an underserved or shortage area. The facility must provide care to Medicaid or Medicare-Eligible and indigent uninsured patients, and as with the Conrad-30 Program, the physician must work under H-1B status for the same employer for a minimum of three years. In both state sponsorship and federal government agency sponsorship, the recruitment of U.S. workers must be shown before the physician is hired.

The Veteran’s Administration does not require a sponsored physician to work full time – a minimum of 50% employment is necessary – and the physician is not limited to primary care and is not required to work in an underserved area. A waiver must be recommended by someone on the Veteran’s Administration faculty and is approved by the Central Office. Another federal agency, the Appalachian Regional Commission, issues waivers to physicians who did not receive specialty training and who practice in rural areas of Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. The Department of Health and Human Services also provides a clinical waiver to doctors who enroll in the Federal Credentialing Program less than 12 months after the end of their family practice residency. The application must be supported by the state and the doctor is restricted to primary care.

2) Interested Government Agency Waiver: A physician can also apply for an interested government agency waiver. In the case of a physician engaged in teaching or research, the Department of Health and Human Services (HHS) Exchange Visitor Waiver Review Board reviews an application that proves the importance of the applicant’s contribution to the research he/she is conducting and the importance of the research itself to the applicant’s field. Supporting evidence must include the applicant’s credentials, proof of the unavailability of U.S. workers, and proof of funding. The HHS then recommends a waiver of the applicant’s two-year return requirement to the Department of State. A doctor whose application has been approved does not need to work under H-1B status for any specified time.

3) Exceptional Hardship Waiver: An exceptional hardship waiver depends on the U.S. citizen spouse or children of the physician. This waiver applies when the spouse or children are likely to experience “exceptional hardship” by returning to the physician’s country of origin or by staying in the United States when the physician returns home. The application for this waiver can include such supporting evidence as psychological reports, travel advisories, proof of the lack of medical care and medication in the physician’s country of origin, etc. This waiver does not restrict the physician’s regional area of work or require a status change.

4) Persecution Waiver: A physician subject to the two-year home residence requirement is eligible for a persecution waiver if they are likely to experience persecution in their country of origin upon their return. This waiver does not restrict the physician’s regional area of work or require a status change.

Obtaining Permanent Residence

A physician hoping to obtain permanent residence has several options. Family-based petitions, asylum, and investor petitions do not rest on the alien’s employment, but will only be available to physicians in specific situations. Extraordinary Ability petitions, which are subject to a similar standard as the O-1, do not require employer sponsorship or the credentialing exam, and allow the physician to avoid the lengthy labor certification process. Similarly, a National Interest Waiver may be a good option for physicians willing to work in a medically underserved area. A physician who works in a HPSA/MUA in general medicine, pediatrics, internal medicine, OBGYN or psychiatry for at least five years is eligible for an NIW. In this case, the state or federal agency will write a letter testifying that the physician’s practice is in the interest of the United States. Finally, the employer can file a Labor Certification Application. For this application, the sponsoring employer must offer permanent employment (except when applying for a residency program) and prove that a recruitment procedure took place and produced no results.

Timing of the permanent residence application is critical, as most temporary visas have a specified time limit and the permanent residence process can take several years.  It is important to ensure that a physician will have valid temporary status and work authorization until he/she is eligible for an employment authorization document (EAD) based on the I-485 Adjustment of Status application.  Therefore we strongly encourage all physicians and employers to consider a permanent residence strategy as early as possible.