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J-1 HOME RESIDENCY REQUIREMENT WAIVER INFORMATION
The U.S. Information Agency (USIA) published a new rule on May 28 that changes some of the procedures for obtaining J-1 waivers for foreign medical graduates to enforce uniformity among federal agencies (such as the U.S. Department of Agriculture (USDA) and the Appalachian Regional Commission) processing J-1 waivers for medical doctors. This new rule does not apply to waivers revised through state departments of health through the Conrad State 20 (See below). Please note that these changes apply to all U.S. government agency waivers except those from the Department of Veterans Affairs.
The following four changes are particularly significant:
- The head of the facility that wishes to employ a foreign medical graduate must attest that the facility is physically located in a designated health professional shortage area (HPSA), a designated medically underserved area (MUA), or, if employing a psychiatrist, in a designated mental health professional shortage area (MHPSA).
- The foreign medical graduate must furnish a signed statement that states that s/he does not have more than one J-1 waiver request pending at the same time.
- No contract can have a "non-compete" clause.
- The new rule limits J-1 waivers only to physicians who practice in primary care. The rule defines primary care as general practice, family practice, general internal medicine, pediatrics, and obstetrics and gynecology.
The new rule has taken affect, but it is not clear whether it applies to waiver requests currently pending.
U.S. DEPARTMENT OF AGRICULTURE (USDA) WAIVER PROGRAM CHANGES
The USDA has tightened its procedures for recommending waivers for serving in rural areas. Even if the health care facility is in an HPSA, the USDA might not recommend a waiver if it determines that enough other J-1 waivers have already been granted and that the area is no longer medically underserved. This fact, in conjunction with a moratorium by the U.S. Department of Housing and Urban Development (since last fall) on processing J-1 waivers, makes it harder than ever to obtain J-1 waivers through federal agencies.
CONRAD STATE 20 PROGRAM
Recently more interest is centering on the Conrad State 20 program, under which state departments of health may recommend waivers for foreign graduates serving in underserved areas in their state. Each state can recommend 20 waivers per fiscal year (September 30th to October 1st), and timely application is advisable. Only applications with extremely good documentation stand a chance of success.
NEW HPSA LIST
The Department of Health and Human Services published a new HPSA list in the Federal Register this last May. Some areas that had been declared HPSAs before were taken off the list. Be sure to look at the most current HPSA list to determine whether your facility or work site is in a HPSA.
CATEGORIES OF NON-IMMIGRANT VISAS
H-1B visa: Temporary Professional Workers
Persons coming to the United States to engage in "specialty occupations" may obtain H-1B visas. This includes all professionals holding bachelor's degrees and particular individuals who show professionalism based on a combination of appropriate work experience and schooling. To obtain an H-1B visa the individual is required to have a prearranged job in a professional field. The job may be temporary or permanent in nature. In addition, the employer must file an "attestation" with the U.S. Department of Labor that it will pay the foreign national the higher of the prevailing or actual wage for the job and provide adequate working conditions. The initial period of approval for this visa is three years, with a second three-year period available if needed.
After remaining in the United States for six years on an H-1B visa, a foreign national is required to live abroad (does not have to be the country of origin) for one year before s/he can re-enter the United States again (in H or L visa status). The H-1B class is subject to an annual cap of 65,000 for each fiscal year.
J VISA: EXCHANGE ALIENS
This category includes foreign nationals who will take part in a program approved by the U.S. Information Agency. Participants include students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in fields of specialized knowledge. Certain exchange visitors (all foreign medical graduates are affected by this requirement) are required by law to return to their home country for a two-year period to transfer the knowledge they gained in the United States before they may re-enter the United States. Spouses of individuals on J-1 visas are issued J-2 visas and are permitted to work in the United States under certain conditions (see above).
K VISA: FIANCES OR FIANCEES OF U.S. CITIZENS
This category of visa covers those individuals who are engaged to U.S. citizens and who are coming to the United States solely to conclude a valid marriage with the petitioner within 90 days after entering the country. The minor children of such persons are also covered by this category. The period of admission is 90 days and is not subject to any extensions.
N VISA: RELATIVES OF UNITED NATIONS EMPLOYEES
This category includes parents and children of foreign nationals who have worked for international organizations in the United States.
O VISA: ALIENS OF EXTRAORDINARY ABILITY
This category is for foreign nationals of "extraordinary ability" in several different fields including sciences, arts, education, business, and athletics. The "extraordinary ability" has to be demonstrated by "sustained national or international acclaim." Obtainment of such a visa requires prior consultation with unions, management groups, etc. Assistants to the principal non-immigrant are admissible as O-2's. Spouses and minor children of O-1 and O-2 non-immigrants are admissible in the O-3 class (these individuals are not allowed to work in the U.S.).
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