2020 Bulletin Cover

Are you a healthcare employer who is having difficulty recruiting physicians? If so, you may want to consider sponsoring a J-1 Exchange Visitor Physician for a Waiver. Providing J-1 Waiver sponsorship can be an effective option for healthcare providers to secure the necessary physician talent needed to serve their patients. This is particularly so for (but not limited to) employers in health professional shortage areas or medically underserved areas where it’s often difficult to recruit and retain U.S. physicians.

Why is J-1 Waiver sponsorship a good option? For context, a J-1 Alien Physician Exchange Visitor is subject to a two-year home presence requirement. This means that the physician must either return home for two years before coming back to the United States in H-1B status or obtaining U.S. permanent residence (a green card), or the physician can obtain a J-1 Waiver and remain in the United States. In many cases, an employer sponsor is needed for the Waiver.

There are many types of J-1 Waivers. Perhaps the most common is the Conrad State 30 J-1 Waiver Program. The Conrad program exists under federal law, but the program is administered by the state health departments. Under current rules, each participating state, including Pennsylvania, may approve up to 30 Conrad Waivers per federal government fiscal year. The federal government fiscal year begins Oct. 1 and ends Sept. 30.

Three agencies are involved in the review and processing of a Conrad Waiver application. Conrad applications are filed with state health departments. They also are reviewed by the U.S. State Department Waiver Review Division and by the U.S. Citizenship and Immigration Service (USCIS).

Because each Conrad Waiver application must meet federal requirements, there are some common elements in Conrad applications regardless of the state in which they are filed. Each state may add requirements with regard to Waiver timing and substance. So, the requirements vary somewhat from state to state. For example, one state might accept applications on a continuous basis until all 30 Waiver applications are used each year, while another might establish a deadline for Waiver filings so that all applications must be postmarked by a particular date.

In Pennsylvania, the health department created a system of processing phases to prioritize the review and approval of the Waiver applications. The initial phase begins Sept. 30 and expires Dec. 15. The Department of Health notifies successful applicants who filed during the first filing period on or before Jan. 10. The remaining two filing phases are from Jan. 1 – June 15 and from July 1 – Sept. 15.

Examples of some of the common elements in Conrad Waiver applications are the physician’s agreeing to work full-time for no fewer than three years in a qualifying location and agreeing to begin working within 90 days of USCIS’s approval of the Waiver application. It’s important when negotiating an employment contract with a J-1 Exchange Visitor to make sure that the contract complies with Waiver requirements.

Most Conrad physicians must work in an area that the U.S. Department of Health and Human Services has designated as either a health professional shortage area (HPSA) or a medically underserved area or an area that has a medically underserved population (MUA/MUP). A Conrad physician, however, does not necessarily have to work in a shortage area because each state may approve up to 10 Conrad Waivers for physicians who provide services to underserved patients from a medical facility that isn’t physically within a designated shortage area. These are commonly known as Flex Waivers.

In addition to Conrad Waivers, a healthcare employer in Pennsylvania may be able to sponsor a J-1 Physician for a Waiver through an “interested government agency” (IGA) Waiver Program. In Pennsylvania, this primarily includes the Appalachian Regional Commission (ARC) J-1 Waiver program, which covers all HPSAs within Appalachia. The ARC J-1 Waiver program accepts waiver applications for primary care physicians and specialists and is co-administered by state health departments and the Federal co-chair of the Appalachian Regional Commission. Be aware that the Pennsylvania health department currently mandates that when an employer is eligible to file ARC Waivers, it must do so rather than opting to file a Conrad Waiver application.

While Conrad Waivers and ARC Waivers require employer sponsorship, there are a few waiver types that do not. In other words, the physician may apply for the Waiver without an employer. So, if all of the Conrad J-1 Waiver spots are used up for a given fiscal year and you aren’t eligible to file an ARC Waiver application, there may still be an option. For example, there are Hardship Waivers and Persecution Waivers for qualifying physicians. As a basic requirement, a Hardship Waiver may be an option if the physician’s two-year departure from the United States will cause hardship to a U.S. citizen or permanent resident spouse or child of the physician – and if that spouse or child would suffer hardship if the physician went back to the home country for two years with or without them. A Persecution Waiver may be an option if the physician fears persecution in the home country, because of race, religion or political opinion. The standards are high, and only select physicians will meet the requirements.

Regardless of the type of Waiver, an employer also is typically needed to sponsor the physician for work-authorized status and a green card.

Being aware of the option of sponsoring a J-1 Physician may help healthcare employers find sufficient staffing to ensure that patient needs can be met.

Author profile
Catherine V. Wadhwani, Esq.

Ms. Wadhwani co-chairs Fox Rothschild LLP’s Immigration Group. For nearly 25 years, she has focused her practice exclusively on immigration law, representing clients in nearly all types of business immigration matters.