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Immigration Prescription for Physicians
 
 
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Question of the Week
Hardship Waivers for J-I Physicians
Question of  Week
 
May a physician who obtained a Conrad 30 or interested government agency waiver of the two year foreign residency requirement change employers before completing the required three years of medical service? 
 
Answer: Yes, a physician who received a J-1 waiver is able to change jobs before the three-year service period provided that he or she can show extenuating circumstances beyond his or her control, e.g. termination of employment by the employer, breach of contract, etc.  The USCIS may approve new employment if the new employer files an H-1B petition for the physician and include evidence of the extenuating circumstances.  It is important for the physician to thoroughly document the reasons for the change of employment.  If you are a physician completing a J-1 waiver, contact an immigration attorney before changing positions.
 

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News!!! 

 
On August 24, 2008, the New York State Department of Health announced that the New York "State 30" program (Conrad 30) will sponsor up to thirty physicians who hold J-1 visas and who seek waivers of the home residence requirement. In return, these physicians must agree to practice in federally-designated Health Professional Shortage Areas (HPSAs) or Medically Underserved Areas/ Populations (MUA/Ps), or serve populations from these areas, for a period of three years.  Up to five (5) of the waivers can be granted to physicians whose work sites are not located in HPSAs or MUA/Ps but who care for patients who reside in HPSAs or MUA/Ps.  The deadline for these waiver applications is December 1, 2008.  For information on the J-1 waiver process, contact us at 469-916-7900 ext. 201 or email [email protected].

 
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Weekly Newsletter 
September 05, 2008
Greetings!

Greetings!
 
Welcome back to Badmus Law Firm's newsletter focusing solely on issues affecting physicians.  The focus of this week's Physicians' Newsletter is the hardship waiver program.  Read on for more information affecting IMG physicians.

 Hardship Waivers for J-1 Physicians
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Hardship Waivers for J-1 Physicians
 

A physician that enters the United States on a J1 visa to pursue medical training is required to return and spend two years in the physician's home country prior to returning to the United States in H-1B or L status or obtaining permanent residence.  This is referred to as the two-year foreign stay requirement.  A physician can have this requirement waived.  One method to avoid the two year foreign residency requirement is to obtain a hardship waiver.  This waiver is granted when requiring the foreign national to return to her home country would impose an "exceptional hardship" on her spouse and children who are U.S. citizens or permanent residents of the U.S.  To establish exceptional hardship, the J-1 physician must meet a two-part test.  First, she must show that her family members would suffer exceptional hardship in her home country were they required to return with her for the two-year period.  Second, she must show that her family would suffer exceptional hardship if they remained in the United States without her for two years.
 
As a practical matter, exceptional hardship is difficult to establish.  For instance, the fact that the family would have to be separated is not enough to establish exceptional hardship by itself.  It usually requires that the foreign residency requirement would force the family to live together in a war-torn or economically-ravaged country or be without necessary medical treatment or social services that are unavailable in the foreign national's home country.  It also requires that the family would suffer equally as much if the physician returned home and left the family in the United States.
 
For example, Juan is a J-1 physician with a U.S. citizen wife, Jenny, who has multiple sclerosis requiring monthly treatments.  She cannot work and depends solely upon Juan for income.  Juan is from Bolivia where there is no facility that provides the treatments Jenny must receive.  In addition, the average income for a physician in Bolivia is equivalent to $300 per month; far too little to support Jenny if she remained in the U.S. while Juan returns to Bolivia.  In this case, the USCIS (and DOS) would probably determine exceptional hardship exists and grant Juan a hardship waiver.
However,  this waiver is only available if the foreign national's spouse or children are American citizens (or at least, permanent residents of the U.S.).  Therefore, if a foreign national brings his existing family to the U.S., the hardship exemption is not available to him, regardless of the circumstances in his home country.   If you believe you may qualify for a hardship waiver, contact us at 469-916-7900 ext.201 or email [email protected].
 

In next week's newsletter, we will discuss the persecution waiver.  Look for your newsletter next Friday!