TO: Physician Clients, Hospitals, Clinics and Colleagues
FROM: Hilary Fraser, Rosanne Mayer and Steve Yale-Loehr
RE: J-1 Waiver Update for Foreign Medical Graduates
DATE: June 16, 1997
We write to update you about new developments in the J-1 visa waiver process for certain foreign medical graduates who are seeking waivers of their foreign residency requirement through interested federal government agencies.
New USIA Rule
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. The USIA's goal in publishing this regulation was to enforce uniformity among most federal agencies (such as the U.S. Department of Agriculture (USDA) and the Appalachian Regional Commission (ARC)) 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 Program.
Four changes are particularly significant. Please note that these changes apply to all U.S. government agency waivers, except those from the Department of Veterans Affairs.
- The head of the health care facility that will employ the 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 sign a statement declaring that he or she does not have more than one J-1 waiver request pending at the same time.
- No contract may have a "non-compete" clause.
- The new rule limits J-1 waivers to physicians who practice in primary care. The rule defines primary care as general or family practice, general internal medicine, pediatrics, or obstetrics and gynecology.
While the USIA's new rule took effect immediately, it is unclear whether it applies to pending waiver requests. For example, contracts in pending waiver cases that contain non-compete clauses may need to be amended. Similarily, pending waiver cases may need to be supplemented with a certification from the foreign medical graduate that only one waiver request is pending, to avoid delays.
USDA Waiver Program Changes
As you may have heard, the USDA has tightened its procedures for recommending waivers for foreign medical graduates 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 to foreign medical graduates such that the area is no longer medically undeserved. This restriction, in conjunction with a moratorium since last fall by the U.S. Department of Housing and Urban Development (HUD) on processing J-1 waivers, makes it harder than ever for foreign medical graduates to obtain J-1 waivers through federal agencies.
Conrad State 20 Program
With other avenues for J-1 waivers drying up, more interest is centering on the Conrad State 20 program, under which state departments of health can recommend waivers for foreign medical graduates serving in underserved areas in their state. Because each state can only recommend 20 waivers per year, and because the end of the federal fiscal year is fast approaching, it may be hard to obtain a waiver recommendation under the Conrad State 20 program in the near future. Only applications with extremely good documentation have a chance of success. It may be slightly easier to obtain Conrad State 20 program waiver recommendations at the beginning of the new federal fiscal year, which starts October 1.
New HPSA List
The Department of Health and Human Services published a new HPSA list in the Federal Register on May 30. Some areas that had been HPSAs before are no longer on the list. Be sure to look at the most current HPSA list to determine whether your facility or work site is in a HPSA.
For further information on these or any other immigration issues, please contact Miller Mayer, LLP.
