Question: May an interested government agency waiver request be filed by a newly-established clinic?

Answer: Yes, however, it is important to ensure that the prospective employer be able to demonstrate the financial ability to pay the prevailing wage stated on the H-1B petition. The petitioning employer must agree to pay the prevailing wage at the time the physician commences employment in H-1B status. Failure to do so could trigger substantial financial penalties against the employer.

It is most advisable to investigate the business and financial situation of a prospective employer as the employment agreement binds both the employer and the employee for three years. Start-up medical clinics, without an existing patient base, are often risky. Ask questions in the community before you sign. Find out if they actually need another doctor.

The HHS will not allow a facility not yet in existence to sponsor a physician for an J waiver.

The sponsoring entity does not have to be a physician or a hospital. In fact, in many states, such as California and Texas, hospitals are prohibited from directly employing physicians.

In addition, the IGA may require the prospective owner of a clinic not yet opened to demonstrate that a lease to an office has been executed; that all arrangements for the physical plant of the clinic have been completed; that clinic staff has been hired and that the clinic is ready to open for business immediately upon the arrival of the physician.

Question: The State Department Data Sheet asks the waiver applicant to state the reasons for not wishing to fulfill the two-year foreign residence requirement. What is the proper answer?

Answer: The question should be answered truthfully. Normally, the response would be, in the case of an interested government agency waiver, that the applicant wishes to pursue professional objectives.

Question: When is the earliest possible time when an IGA J-1 waiver request can be filed?

Answer: Under section 622 of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), physicians must agree to commence employment within ninety (90) days of BCIS approval of the waiver. Thus, the filing of the application should be timed with this requirement in mind. In other words, the last step must be anticipated before the first step is taken.

Question: May an H-1B petition be filed prior to obtaining a J-1 waiver?

Answer: Yes. An H-1B petition may be filed up to six months prior to the time when the H-1B worker will commence employment. However, the application for change of status may not be filed until the State Department issues its waiver recommendation to the BCIS.

Question: Is it possible to apply for a hardship waiver and an interested government agency waiver simultaneously?

Answer: Yes.


Question: Is it possible to simultaneously work in a waiver position in a medically underserved area and continue graduate medical training?

Answer: As physicians are required to work at least forty (40) hours per week in a medically underserved area in conformance with the terms of a waiver, the logistics of simultaneously completing a residency would be difficult, if not impossible.


Question: What are the most common problems reported by physicians and employers in the J-1 waiver employment?

Answer: Physicians complain about the lack of advanced technology and lack of other physicians to share calls in rural areas.

Employers complain that physicians do not integrate into the community, do not market themselves in the community and are not committed to working the long hours necessary to build a practice.

Question: The State Department Data Sheet asks the waiver applicant to state the reasons for not wishing to fulfill the two-year foreign residence requirement. What is the proper answer?

Answer: The question should be answered truthfully. Normally, the response would be, in the case of an interested government agency waiver, that the applicant wishes to pursue professional objectives.

Question: In which countries may the two year foreign residence requirement be satisfied?

Answer: The two year foreign residence requirement may only be satisfied in the country of nationality or last permanent residence as indicated on Form IAP-66. If a citizen of one country and a permanent resident of a second country, you must satisfy the home residence requirement in the country of last permanent residence. These countries must be listed on the IAP-66. If there is an error on the IAP-66, the State Department takes the position that the BCIS, not the State Department, must correct the error, if the program sponsor will not correct the error. Note that in rare instances, the two-year foreign residency requirement may be waived because of the impossibility of compliance, such as some Palestinians with Egyptian Travel Documents.

Question: If a J-1 visa holder subject to the two year foreign residence requirement returns to the home country for two years to comply with the two year home residence requirement, under what circumstances can he/she return to live in the United States.

Answer: Once the home residence requirement is satisfied, the former J-1 visa holder may return to the United States
in any status and immigrate through any status (e.g. relatives, employment, investment, lottery, etc.).

It is advisable to obtain employment commitments and sponsorship commitments for H-1B visas or permanent residence before you depart from the United States , if possible, so that you have assurances you can return to employment in the United States once the two-year commitment is satisfied.

Question: If both spouses are in J-1 status, is it possible for one spouse to change status to J-2?

Answer: Yes. However, BCIS frowns on this and some BCIS offices may deny such a change of status.

Question: Will the spouses and children of persons issued J-1 visas or in the U.S.  in J-1 status automatically be issued J-2 visas?

Answer: It should never be assumed that J-2 dependents will be issued J-2 visas because the principal alien has been issued a J-1 visa or been granted a change of status in the United States to J-1 status. Each applicant must prove to the satisfaction of the American consular officer before whom an application is made that he/she continues to maintain the principal place of residence and domicile abroad and that she/he intends to return home at the completion of the program of the J-1 principal. In many countries, it is difficult to demonstrate a spouse or child has strong ties in the home country when the principal has departed. Competent counsel should be consulted before dependents apply for J-2 visas, particularly in countries designated by the Department of State as high fraud countries, such as the Philippines , India , Pakistan and Nigeria. Also, if the principal alien entered the United States as other than a J-1 (e.g. F-1 or B-1/B-2), dependents applying in any country should obtain legal advice before applications are submitted as consular offices often deny J-2 visas to dependents when a principal changes status to J-1 after arrival in the United States


Question: May a person with J-2 status participate in a residency program with an BCIS issued work permit? Are there any time limits? Must a residency contract be filed with the work permit request?  

Answer: With BCIS work authorization, the J-2 visa holder may participate in residency training or engage in any other employment. The BCIS requires that the J-2 applicant demonstrate that the funds earned from employment are not needed for and will not be used for the support of the J-1 exchange visitor.

The J-2 visa holder may obtain employment authorization as long as the relationship to the J-1 visa holder continues to exist and as long as the J-1 visa holder continues to be in lawful J-1 status. No employment contract need be filed with the request for work permission.


Question: Can a person with J-2 (dependent of a J-1 physician) status, pursue university studies? Can a J-2 change status to F-1?

Answer: A dependent of a J-1 physician in lawful J-2 status may pursue part-time or full-time university studies. A person holding J-2 status cannot change to F-1 (student) status in the United States It is possible for the J-2 to obtain the issuance of an F-1 visa by an American consular post outside the United States and be admitted in F-1 status. However, the two year foreign residence requirement still remains and must be complied with before “H” or “L” status or permanent residence can be obtained.

If the J-2 is divorced from the J-1 or the J-1 dies, the two year foreign residence requirement will generally be waived.

Question: If a J-1 physician changes status to H-1B and the J-2 spouse changes status to H-4, is there a waiting period before the H-4 spouse may change status to H-1B?

Answer: Generally no waiting period is required. However, it is advisable to consult with a knowledgeable immigration attorney before filing the application to change to H-1B status. The time period could be affected by prior representations made to government officials in connection with other petitions or applications.

Question: If a J-1 physician changes status to H-1B and the J-2 spouse changes status to H-4, is there a waiting period before the H-4 spouse may change status to H-1B?

Answer: Generally no waiting period is required. However, it is advisable to consult with a knowledgeable immigration attorney before filing the application to change to H-1B status. The time period could be affected by prior representations made to government officials in connection with other petitions or applications.

Question: Is there any way for a J-1 physician to obtain a green card other than through employment-based or family-based immigrant visa petitions?

Answer: Yes. It is possible to obtain permanent residence through political asylum or through an immigrant investor visa as well. If political asylum is granted, the two year foreign residence requirement is waived.

However, through a technical legislative amendment to the law and/or BCIS interpretations, this position may change. Health care providers and their representatives have urged BCIS to permit anyone who had a waiver filed with a government agency before September 30, 1996 to process permanent residence under the old law, which did not require H-1B status or any waiting period to file for permanent residence.

Question: If a J-1 or J-2 visa holder wins the immigrant visa (diversity) lottery, must he or she still obtain a waiver of the two year home residence requirement in order to obtain permanent residence on the basis of winning the lottery?

Answer: Yes, a waiver must still be obtained. Even with a waiver, the J-1 physician must complete three years of service in H-1B status if the waiver is an IGA waiver. However, if a spouse who formerly held J-2 status has obtained a waiver through the J-1 principal, the J-2 with a waiver may apply for permanent residence even if the former J-1 has not completed three years of service in H-1B status. [Editor’s Note: Although neither BCIS nor the State Department has formally adopted a policy on this issue, representatives of each agency have indicated that a former J-2 with a waiver derived from the principal J-1 physician may apply for permanent residence without waiting for the former J-1 to complete three years of service in H-1B status].

Question: May a J-1 visa holder obtain further extensions of J-1 status in the United States if a relative, such as a spouse or parent, files an immigrant visa petition?

Answer: Yes. The filing and approval of an immigrant visa petition is not a bar to extending J-1 status. However, the J-1 alien cannot file an application for permanent residence until the two year foreign residence requirement, if applicable, is satisfied.

Question: Is it possible to obtain the approval of an O-1 petition while awaiting an interested government agency waiver? If the O-1 petition is denied, is it possible to extend the IAP-66 for a fellowship?

Answer: It is possible to obtain the approval of an O-1 petition while awaiting the approval of a waiver. While you cannot change status in the United States from J-1 to O-1, you may obtain the issuance of an O-1 visa at a U.S. consular post abroad without a waiver and be admitted to the United States in O-1 status. However, the two-year foreign residence requirement does not disappear by obtaining O-1 status; it continues to exist. O-1 petitions may be approved for three years; and may be renewed indefinitely.

Eligibility for J-1 status is not affected by the filing or approval of an O-1 petition. If otherwise eligible, the sponsorship may continue without interruption

               

13 Rules when dealing with Immigration Attorneys    

Ask for References
Anyone that can not give you a list of happy clients probably has a list of unhappy clients.

Get everything in Writing
You should get a contract stating exactly what the person is going to do and how much it is going to cost for those services.

Get a Receipt
Always get a receipt showing exactly how much money you have paid and for what.

Be Suspicious
Be suspicious of anyone that charges significantly less or makes lots of promises or claims to “have connections”.

Make Copies
Make copies of any important documents to give to the person.  Never send originals.

Never Sign your name on Blank Forms

Don’t sign forms with any false information on
This will only make your situation worse.

Be aware of anyone that says there is a “Secret Law”
Report these individuals, they are committing fraud.

Always ask for Proof
Make sure you have proof that all forms have been filed.  Get a copy or a receipt.

Walk Away
Walk away from anyone that is offering to “get you a spouse”.  This is illegal and will get you into trouble.

Ask a lot of Questions
Ask a lot of questions.  Anyone that knows what they are talking about will be more than happy to answer them.

Make sure the person is Barred and Licensed to Practice law
Find out what state the person is barred in. Go to google and type in “*whatever state* state bar association” to check. If the person is not barred, they can only translate and help you fill out the forms you bring them. If they offer you legal advice, you should report them to the State Attorney General or District Attorney. A google search will help you locate these folks also.

Stay Informed
Stay informed.  You have a right to know what is happening with your case.