Important information for Physicians under the 1996 immigration law

Several aspects of the new immigration law signed by President Clinton on September 30, 1996 could be potentially troubling to foreign medical graduates in J-1 status. While exact interpretation of the new law (called the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) by Congress, the INS and the Department of State is still unresolved, we are writing now about several provisions of the new law that may affect J-1 physicians.
     Section 622 of the new law attempts to limit the circumstances under which a foreign medical graduate in J-1 status may receive a waiver recommendation from a state or federal agency. This section allows a J-1 waiver only where a doctor promises to serve in a federal health professional shortage area (not an MUA or state designated area) for three years, and meets certain other requirements. This section also attempts to require doctors who receive J-1 waivers after October 1, 1996 to hold H-1B status for three years before obtaining permanent resident status.
     Section 622 took effect October 1, 1996, meaning that physicians who were not adjusted to permanent resident status or in receipt of an INS I-612 approval notice granting waiver of the home-residency requirement by that date may be required to hold H-1B status for three years and make a three year service commitment, even if an interested government agency, such as the U.S. Department of Agriculture, had already recommended a waiver based on a two year commitment, and even if a green card classification had already been approved and an adjustment of status application had been filed.
     Section 632 of the new law requires most nonimmigrants who overstay their visas to seek new nonimmigrant visa issuance, such as an H-1B, only in their home country. For example, a J-1 physician from Poland who remains in the United States until the August following the June expiration of his IAP-66 form and then receives H-1B approval based on a J-1 waiver must now return to Poland to receive the H-1B visa stamp. However, the State Department has recognized an exception for doctors destined to work in medically underserved areas.
     Section 304 of the new law limits pre-hearing voluntary departure to one four month period and allows the INS to require posting of bond. Moreover, work authorization is not allowed during voluntary departure. In the past, J-1 physicians awaiting waivers and other immigration processing have received six-month to one-year grants of voluntary departure, including work authorization, that could be extended. This section of the new law shortens the time-frame during which a physician case must be completed. This section took effect April 1, 1997.
     Section 301 of the new law "punishes" aliens who overstay a nonimmigrant visa, such as a J-1, or who violate their status, such as by working without authorization, by more than six months. These aliens are barred from obtaining any new U.S. visa for three years following their departure from the United States. Aliens who overstay by one year or more are barred for ten years. This section took effect April 1, 1997.
     Apart from the new law, two other immigrant physician-related issues merit attention. First, section 245(i) of the current Immigration and Nationality Act, which allows out of status aliens to adjust to permanent resident status in the United States by paying a $1,000 fine, instead of having to consular process in their home country, expires on September 30, 1997. Unless this section of the law is renewed, physicians who have been out of status, even before obtaining H-1B status, will not be able to adjust to permanent resident status in the United States. Congress may address renewal of section 245(i) later this year.
     Second, the U.S. Department of Housing and Urban Development stopped accepting J-1 waiver applications on September 1, 1996. So far, the Appalachian Regional Commission and the U.S. Department of Agriculture (USDA) are still operating J-1 waiver programs, although the USDA waiver program has become significantly more restrictive recently. 

For further information on these or any other immigration issues, please contact Miller Mayer.