Physician & Healthcare Immigration: J‑1 Waivers, H‑1B Cap‑Exempt & Clinical Pathways

Andrea Godfread-Brown: Sure. First, how about a little quick overview of, you know, what has typically been the path for these physicians to finish a medical residency here and then move from a J to an H-1B and then ultimately maybe to a green card. The idea of the J-1 physician program is that these are individuals who have completed their medical training in their home country, often have already been practicing physicians in their home country. But in order to get licensed here in the US, they have to enter a medical residency program in the US. This is done in a J-1 physician category, which means that there is a two-year home residency that attaches to that. So the two-year home residency, every single physician who comes in on a J-1 to do a residency program, that two-year home stay requirement attaches to them. So in order for them to stay here, so they finished their training, their medical residency in J-1, in order to stay and get on an H-1B, which is a work visa, employment visa, they have to either, they only have two choices. They either have to go home for two years first and then reenter on an H-1B, or they have to get a waiver while they’re here. Typically that happens in their third year. You know, that process starts during their third year of their medical residency, so for their final year of whatever program they’re in, fellowship or medical residency. And they have to have a sponsoring employer in order to get that waiver. So there’s several categories of waivers that are available. The primary ones are a Conrad State Thirty waiver, which is a program that is state by state administrated. So even though it’s federally legislated that there are thirty waiver slots per state each fiscal year, each state who administers their program does that a bit differently. So, and there’s only thirty of those available. And then there’s the interested government agency, or IGA waivers, which people know like the HHS waiver, the regional programs, Delta Regional, Northern Border Commission, things like that. And those, there’s not a limited amount, but they have other restrictions on those. So you have to have the employer in a medically underserved area who’s going to sponsor you for one of these waivers. And then the physician must work for three years in an H-1B status to fully satisfy the waiver requirements. And then they’re sort of free from it. And that means, okay, I can extend my H-1B, stay with my employer, I can work for another employer, I can now adjust status to a green card if I have eligibility for that. So they’re no longer sort of bound to this two-year home residency requirement, and they’re no longer restricted from staying permanently in the US.

Ruth Garbanzo: Yeah. So one thing to note with, for example, the Conrad Thirty waiver is that there’s only thirty spots, which Andrea mentioned. And typically, for example, in New York State, there’s double the amount of submissions that the state has to select from. So it’s very competitive and there is, you know, a lower chance of getting selected, which has to be considered when planning the pathway for the physician being sponsored. So if they fall into, if they can’t apply for one of the IGA waivers, that is more beneficial to them because there’s no limitation there, as long as they meet all the other requirements. Andrea, can you give us an idea, for example, with HHS waivers, what the timeframe looks like from submission to actually receiving the waiver itself?

Andrea Godfread-Brown: Sure. And it’s important to note that the employer and the work site have to fall in a HPSA or MUA designated area, right? A health professional shortage area or a medically underserved area. And they have to have current designation as that in order to make an offer of employment to a J-1 physician and in order to submit a waiver of that two-year home residency requirement. So typically we see that recruitment hiring cycle starting in the spring and summer of a year before, a little over a year before a physician finishes their program. For physicians finishing a residency or fellowship July 1 of 2027, we’re starting to see those into the fall.  So what happens then is the employment contract is sort of the first part of the process. So the employment contract itself has to list the work sites, make sure they fall into HPSA and have certain terms within that contract to satisfy the particular waiver program. And then we can prepare and submit the waiver at really any time, October, November, December, all the way through to like March, right?  So this goes on through late fall, winter, depending. It takes several weeks to put it together just because you’ve got different government agencies you’re going through. First, you have to get the State Department of Health support for the petition or for the waiver application, and then you have to make it to the particular body, either the Department of Health for a Conrad waiver or to, say, the Health and Human Services office if it’s an HHS waiver. Then those offices, once it’s documentarily complete and sufficient, forward it to the Department of State Waiver Review Division, who then as the final sort of waiver review recommendation for the waiver, and then they send it to USCIS, who issues the I-612 approval notice. So from the time that we start working with, say, a hospital client who is going to submit a waiver application, let’s just say we start that November, we have everything complete by end of December, early January, then it goes into either that state department of health or say the HHS office. Then it takes several weeks before it can clear that and get moved to the Department of State Waiver Review Division. So you’re looking at a process that overall can take four or five months. If it’s an IGA, if it’s a state waiver, it’s going to depend on the state. Some are lower demand, so they have rolling applications. In New York State, you have to apply typically by the second week in December, and then you often don’t know until the following April if you were selected for one of the waiver slots and can then move on to H-1B. So it takes several months.

Ruth Garbanzo: Yeah, so that’s important to consider given that the physicians are going to be completing their residency at the end of June, usually June 30th. And unless they extended their status in J, you know, that is important to think about because then they have to have an H-1B ready and available. Right. But they can’t do that until they have their waiver approval. So planning is key when thinking about the physician pathways going from J to H and so on. So next we’re going to talk a little bit about cap exempt H-1Bs for physicians. So the H-1B gives the physician a three-year work visa. And the reason that they have the ability to obtain these cap exempt visas and they don’t have to go through the standard lottery is that either they’re with a nonprofit hospital affiliated with the university or they’re employed at a nonprofit entity that also is part of a research organization. The other way that they can be cap exempt is if they do obtain their J-1 approval, they’re automatically exempt that way on their own and not through necessarily their sponsoring employer. So it’s really great, that benefit, that they can apply without going through the lottery because, you know, there’s flexibility in timing. They can file year round. There’s no certain timeframe that they have to worry about like you do with the lottery. And obviously they’re meeting the needs, these critical needs that a lot of underserved areas have in fulfilling their healthcare workforce. So this is a great benefit for them. Andi, do you think there’s anything else we should add in for the H’s?

Andrea Godfread-Brown: Just that, you know, what we’re describing is sort of the typical path for the past, you know, however many years that I’ve been doing this. And there were two major hiccups this year. So the major roadblocks or hiccups that can come along are the timing, which is critical, right? So if a physician is not selected, let’s say they’re in a competitive state, they don’t get one of the waiver slots, this is where you need to discuss early on sort of a backup plan. What’s going to happen if they don’t get selected for a Conrad Thirty waiver or if they qualify for one of the other programs like HHS or regional commission program, to get that underway in a timely manner. So, for example, the HHS program, which is very attractive because it’s for primary care physicians who are within one year of finishing their medical residency program, as long as they’re working in a HPSA site with a score of seven or higher. So that’s really appealing. And in the past, what has happened is you could, again, start that process in the fall and submit it up until as late as mid-March, and you could still get your waiver approval and your H-1B filed by July one. Well, this last year, the hiccup was that the Health and Human Services sort of shut down their processing in January and February, which then created this backlog. And that was due to the IGA or OGA, their governing federal agency that was reviewing their policies and sort of not letting them process these applications. So that created a timing issue. So then when things opened back up again, everything was sort of behind schedule. So what are the backup plans? If something goes wrong with the timeline on any of your waivers or if you don’t get selected for a Conrad waiver, the backup plans are extend your J-1. You can extend your DS-2019, your J-1 based on studying for the boards. That way you’re not running out of time and your status isn’t ending on June 30th. You can extend it into the fall to study for board exams and that gives time for that H-1B to be filed. Another backup plan, let’s say it’s a Conrad, doesn’t get selected for the Conrad, is not eligible for an IGA waiver. If the physician is qualified with their credentials and accomplishments, an O-1 visa, which is a worker of extraordinary ability, is a possibility. Otherwise, that’s not really a viable backup plan. And then where we are in Buffalo and upstate New York, of course, the best backup plan, sort of stop gap measure, is an H-1B for Canadians. So we work with a lot of Canadian physicians, so they can come in because they don’t need a visa. They can just present their documents at the port of entry. So it’s sort of a way around that. They can enter on an H-1B and start working until they get the waiver in hand. They still need the waiver or they still need to satisfy that two-year residence requirement, but they can at least come in and be working on an H-1B while they’re doing that. That’s for Canadians only, unfortunately. That leads to the second big unexpected roadblock that came up this year that impacted not just physicians, but any H-1B in any industry, any employer trying to get their professional work visa approved for their employees. Which is that in January of this year, the Trump administration, through presidential proclamation, announced a hundred thousand dollar fee for any new H-1Bs coming from outside the U.S. And that fee needs to be paid by the employer. So from everything we said with these J-1 physicians and their path to H-1B and green card, of course it’s all built on the fact that they’re working in rural and medically underserved areas, which means they don’t necessarily have the flexibility financially. So paying a hundred thousand dollar fee to get a physician even eligible for a visa is a big ask. So that was a big deal, and that’s still ongoing. The way around that is the regular process. So if the J waiver gets approved and they can stay in the U.S. and change their status to H-1B, no hundred thousand dollar fee applies. However, for Canadians trying to come in under that exception and get in at the border who weren’t able to get a waiver, the hundred thousand dollar fee does apply. So, you know, the delays, any delay in the timing or with the waiver or with your planning had sort of a big consequence this year that no one really could anticipate that there would be this huge additional fee. So those are the two things we’ve seen come up this year. Hopefully it won’t happen again, but the earlier you start this process, of course, the better you can anticipate or find a backup plan.

Ruth Garbanzo: Yeah. And I think an important thing to know is that the proclamation and the rule for the $100 K fee sunsets in September. So we don’t know if it’s going to be renewed or not. But until then, the expectation is that if you’re applying for the H-1B through consular processing or for Canadians entering at the border, you anticipate that this fee will be triggered. So one thing, and this leads into our next discussion, is what is something that we can argue for those that might be triggered on that $100 K fee. USCIS has noted that in extraordinary circumstances, one could argue the national interest exception. How have you seen this play out, Andi?

Andrea Godfread-Brown: Well, we haven’t. Basically, it’s a nice little olive branch that they extended on paper only. But anyone who has tried to get a national interest exception for their physician through the portal that USCIS provided by showing that there’s great demand for this physician, those have just been sort of languishing and sitting in limbo. USCIS is not approving those. Most of them, they’re just coming back and saying, sorry, you didn’t qualify. And then it goes back to the employer to decide if they can pay a hundred thousand dollars or let the physician go. So it’s a really unfortunate situation for hospitals that have spent a year anticipating bringing this physician on in these really needy areas. So it’s just got this domino effect that’s really unfortunate. And when you put it in terms of twenty five percent of our physician workforce being international medical graduates, they’re really helping in a lot of these areas and we’ve put some significant roadblocks up for that.

Ruth Garbanzo: Yeah, so I think just one thing to note with everything going on in immigration is that it’s pertinent to have a plan in place earlier than expected because there can be hiccups with new policies being issued and a lot of roadblocks coming up that can delay the hiring start. So just to close, this is a huge pathway going from J-1 to waiver to H-1B for physicians. It’s the best way to go about it, but we’re seeing a lot of new roadblocks. It’s important if you need guidance to reach out to an immigration attorney early on in the process. Starting a year before the physician actually ends their residency program is when things should be kicked off, if not earlier. Any other tidbits, Andrea?

Andrea Godfread-Brown: Just my two pieces of advice are to get the CV of that physician reviewed early by an immigration attorney to see if there are backup options, and to involve an immigration attorney up front, even at the time of the employment contract, to make sure all the terms are in there.

Ruth Garbanzo: Yeah. Yes. And so that will be it for today. Thank you for joining us. Berardi Immigration is super involved on social media, so please follow us on LinkedIn and all the other platforms. And we’ll see you next time. Thanks.

Andrea Godfread-Brown: All right, thanks.