Hiring J-1 Physicians Two Year Foreign Residency Requirement for J-1 PhysiciansAfter residency or fellowship training is completed, all J-1physicians must return to home country for two years orobtain a waiver of this requirement before he or she can beemployed in H-1B status or adjust to permanent residence(“green card”). Home Country - Country of last citizenship or permanent residence (even if dual citizenship retained) before J-1 visa Rule 1.0
Hiring J-1 Physicians Waivers of the Two-Year Foreign Residency Requirement (“J-1 Waivers”)• Interested Government Agency (IGA) – any government agency is eligible• Hardship – extreme hardship to U.S. citizen/LPR spouse or children• Persecution – likelihood of harm to physician because of politics, religion, etc.
Hiring J-1 Physicians Typical Interested Government Agencies (IGA)• Conrad 30 State Program• Department of Veterans Affairs (VA)• United States Department of Health and Human Services (HHS)• Appalachian Regional Commission (ARC)• Delta Regional Authority (DRA)
Hiring J-1 Physicians Conrad 30 State Program• Administered by each state health agency• Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA) – – http://datawarehouse.hrsa.gov/GeoAdvisor/Shor - Health Resources and Service Administration website to determine HPSA or MUA designation• Flex 10 slots available for facilities not located in HPSA/MUA but serve HPSA/MUA population
Hiring J-1 Physicians Conrad 30 State Program (cont.) Flex 10• Check state program requirements• Determine surrounding HPSA/MUA locations and gather patient data• Provide evidence of sufficient number of patients for at least one additional physician Rule 2.0
Hiring J-1 Physicians Conrad 30 State Program (cont.)• 30 slots per fiscal year – October 1 to September 30 – varying deadlines!• Recruitment efforts must be current – usually within six months; some states have very specific requirements• Sliding fee scale and patient payor mix data required for all programs Rule 3.0
Hiring J-1 Physicians Conrad 30 State Program (cont.) Contract Requirements– Three year term required (minimum)– Agree to start employment within 90 days of USCIS waiver approval– Non-compete clauses generally prohibited– Employment only – no independent contractor agreements– Liquidated damages permitted (required in some states, e.g. Georgia)– Termination with cause only (some states)– Location of work must be specified Rule 4.0
Hiring J-1 Physicians U.S. Department of Health and Human Services (DHHS)• Federal agency covers entire United States – http://www.globalhealth.gov/exchangevisitorprogram/index.html#waiver• Clinical care – primary care in HPSA with 7 score, public health center, rural health clinic, or tribal medical facility, three year contract required – contract requirements similar to Conrad 30 program• No limit on number of waivers per year• Credentials verification required (1-4 months)
Hiring J-1 Physicians Employer Obligations• Annual or semi-annual reporting and notifications to state or federal sponsoring agency• Apply for H-1B and pay salary that meets the prevailing wage; income guarantees possible• Employ physician only at agreed locations and/or underserved areas
Hiring J-1 Physicians Timeline for J-1 Waiver Process• Employer and Physician apply to IGA (1 month)• IGA issues recommendation to Department of State (DOS) (1 to 4 months)• DOS issues recommendation to USCIS (1 to 2 months)• USCIS issues final waiver approval I-612 (1 to 3 months)• H-1B petition filed and approved (1 to 4 months)• Total time – 5 to 13 months
Hiring J-1 Physicians Six Steps for Hiring J-1 Physicians Fast Contact immigration attorney early in the process to help develop recruitment plan Start search for candidates in their 2nd year of residency or one year before completion of fellowship Execute employment agreement by early Fall of 3rd year of residency or final year of fellowship Document current recruitment efforts, including advertising, recruiters, referrals, etc. Verify IGA program waiver requirements with attorney and gather data to support waiver application Plan to present the waiver application on October 1 or first day for acceptance of applications
Hiring H-1B Physicians H-1B Physicians Defined IMG Physicians who completed residency or fellowship with H-1B visa (no J-1) J-1 Physicians who returned to home country for two years after residency or fellowship completed J-1 Physicians who obtained hardship or persecution waiver and seek employment
Hiring H-1B Physicians H-1B Numerical Limitation (“Cap”) Limit of 65,000 new H-1B visas per fiscal year 20,000 per fiscal year for persons who hold US Master’s degrees or higher Fiscal year runs from October 1 to September 30 Employers may apply for H-1B on April 1 with a start date of October 1 Rule 5.0
Hiring H-1B Physicians H-1B CapWho is subject to the cap? – First time H-1B employees (physician) – Employees who already hold H-1B status but were employed by cap-exempt employers – Previous H-1B employees who left U.S. for one year or more H-1B physicians are subject to the cap
Hiring H-1B Physicians Cap Gap Challenge July 1 to October 1- Can Physician Legally Remain in U.S.?- Can Physician Work?- Does the Employment Qualify for Cap Exemption?
Hiring H-1B Physicians H-1B Cap ExemptionsCap-exempt employers• Universities and non-profit petitioners affiliated with post- secondary educational institutions• Government research organizations and non-profit petitioners affiliated with government research institutions• For-profit employers who place physician at a non-profit, university-affiliated facility for at least 51% of work weekCap-exempt employees• Physicians who receive J-1 visas sponsored by government agencies, e.g. Conrad 30, ARC, DRA, DHHS waivers Rule 6.0
Hiring H-1B Physicians Credential and Licensing Requirements• ECFMG certification and Steps 1, 2 and 3 of USMLE or Flex I & II or NBME I, II & III – Exception – Physicians of national or international renown• Licensing in the state of intended employment – Temporary licenses - one year of H-1B employment permitted – Must be issued before H-1B petition filed• M.D. or foreign equivalent, e.g. MBBS Rule 7.0
Hiring H-1B Physicians Employer Obligations for H-1B• Employer must pay minimum of prevailing wage or actual wage, whichever is higher, for the term of the H-1B – http://www.flcdatacenter.com/ - Department of Labor (DOL) wage data for prevailing wage – Salary must be guaranteed at prevailing wage or actual wage – productivity bonuses okay after minimum guarantee• Employer must pay ACWIA fee of $750 (25 or fewer employees) or $1500 (greater than 25 employees) unless exempt
Hiring H-1B Physicians Employer Obligations for H-1B (cont.)• Physician must be on payroll within 30 to 60 days from H-1B approval date, regardless of pending hospital privileges• Physician must be an employee of sponsoring employer, not independent contractor• Employer must control physician’s employment• Employer must keep specific documentation as required by DOL• Physician must work at specified locations
Hiring H-1B Physicians H-1B Portability• If employee is already in H-1B status and changing employers, new employer must file H-1B petition• May start new employment upon filing of new H-1B petition – need not wait for final approval• Concurrent H-1B petitions are permitted – “moonlighting”• Extenuating circumstances required for former J-1 physicians completing a J-1 waiver Rule 8.0
Hiring H-1B Physicians H-1B Visas are Temporary• H-1B status can be valid up to 3 years initially, renewable for 3 more years.• 6 year maximum stay with some exceptions - – 1 year extensions available after 6th year if green card application pending for at least one year – 3 year extension available if green card application is on hold because of limited availability of green cards – Recapture time spent outside U.S. during H-1B visa (vacations, leaves of absence, etc.)• Physician is eligible for another 6 years after 1 year outside U.S. but subject to H-1B cap Rule 9.0
Hiring H-1B PhysiciansSix Steps for Hiring New H-1B Physicians Fast Finalize employment by early Fall of 3rd year of residency or final year of fellowship Determine whether cap-exempt employer or employment If competing for non-exempt H-1B, have contract in place by February so that H-1B petition can be filed on April 1 Encourage early application for medical license and credentials Ensure salary and benefits are within prevailing wage requirement for location and that covers the H-1B term Contact immigration attorney early in process
Green Card – Top Benefit to Attract IMG Physicians Green Cards Through Employment • Labor Certification – Employer sponsorship required – Employer must pay part of attorney fee and other costs – Portability if same or similar occupation – Can take 1.5 to 6+ years for physician to receive green card • National Interest Waiver – Self-sponsored – Five years of service in HPSA or MUA Rule 9.5
Legal NoticeFacts of individual situations differ.The information provided here is generalin nature and should not be relied uponfor specific situations.Consult with an experienced immigrationattorney to get the right diagnosis for yourcandidate’s specific situation.
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