Foreign physicians, referred to as International Medical Graduates (IMGs), who wish to remain indefinitely or permanently in the United States must address the very serious restriction upon their stay in this country, the two year home residency requirement. This restriction means the IMG cannot take any medical job in any medical area upon completion of the program. To remain in the U.S. he or she must get a waiver of this requirement.

The J-1 visa and the two year home residency requirement

The J-1 is probably the most versatile of all non-immigrant visas. J-1s are au pairs, trainees at corporations, graduate researchers, post doctoral graduates, graduates of foreign medical schools and many others. The program is designed to facilitate international exchanges. A critical aspect of many J-1 programs is to assure that the home country of the J-1 individual benefits from the knowledge the scholar, researcher, physician, etc. receives. Many programs, therefore, mandate the two year requirement in order to assure the individual will return to his or her home country upon completion of the program. In order to put teeth into the law, J-1's subject to the requirement may not change their status to categories allowing them to work, such as H-1B or L-1, and cannot adjust to permanent resident status until the requirement is satisfied or is waived. The law recognizes that certain circumstances make the imposition of the two year requirement too harsh or unfair and thus allows individuals to apply for waivers of the requirement. The waiver is also available when the home country indicates it has no objection to the grant of a waiver of the requirement. Section 212(e) of the Immigration and Nationality Act (INA) specifies the situations under which an application for waiver can be made.

Waivers for IMGs

Foreign physicians engaged in clinical training programs require sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG), the only organization empowered to issue the J-1 sponsorship document for programs of 'graduate medical training and education. ECFMG sponsorship includes the two year home residency requirement which cannot be waived on the basis of a "no objection" statement. In addition to the hardship waivers enunciated in Section 212(e), Congress has carved out waivers specifically for IMGs where the national interests of the United States outweigh the interest of enforcing the two year requirement. Such waivers always involve the intervention of an interested government agency (IGA) which makes a request for the waiver to the Citizenship and Immigration Services (CIS) on behalf of the IMG.

Although the CIS is the final authority in granting or denying a request for the waiver of the two year requirement under Section 212(e), the pivotal role in obtaining the waiver is played by the IGA. Once CIS receives a recommendation of the waiver based upon a request from an IGA, a favorable outcome is basically assured.

In general, IGA waivers come in three forms: (1) Based upon the academic excellence of the IMG in research in areas of national importance; (2) Based upon an employer/employee relationship with a federal agency; (3) Based upon a request by an interested federal agency or an interested State agency where the physician will provide medical services in a medically underserved area. The second and third of these waivers require the IMG commit to work for the agency or the health facility involved for at least three years.

(1) The academic research waiver: This waiver is reserved for physicians interested in bench research who can show an outstanding record of academic achievement working for an institution/laboratory with a track record of excellence in its field, and who can further demonstrate that their services to the institution are so vital that the loss of their services would adversely affect the initiation, continuation, completion, or success of the program or activity. The waiver application is made to the Executive Secretary of Health and Human Services' (HHS) Exchange Visitor Review Board for initial determination. The waiver is then forwarded to the National Institutes of Health (NIH) for technical review focusing on the merits of the application and its relationship to areas of national interest. The final decision to recommend the waiver is made by HHS which delivers its recommendation to CIS. (2) Employer/employee relationship: If the J-1 physician is working for a federal agency, the agency can initiate the waiver process. The largest federal employer of J-1 physicians is the Veterans Administration (VA). The VA, thus, acts on behalf of the IMG in recommending a waiver of the foreign residency requirement to the CIS. (3) Interested federal or state agency on behalf of communities needing medical services: A physician willing to provide medical services in medically under served communities may obtain a waiver based upon the request by a federal agency or through a designated state agency, usually the state's department of public health. Many federal agencies have become active in this process. The agency with the longest record of serving as an IGA for waiver purposes is the Appalachian Regional Commission (ARC) covering rural counties in: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia. The United States Department of Agriculture (USDA) was very active in this area but stopped its IGA activities in April 2002. The HHS began operating as an IGA effective September 19, 2002 and is expected to be a major sponsor of waiver requests because of its integral position in the assessment of medical care in this country. States became directly involved in addressing the need for medical care in their communities through the Conrad Program created in 1995 through Senator Kent Conrad of North Dakota. The program initially allowed states to recommend up to 20 waivers for IMGs per fiscal year. In 2002 the number was increased to 30 waivers. Participating states (virtually all the states are now involved) designate an agency to recommend a waiver to the Waiver Review Board of the U.S. Department of State. It is known generally as either the State 30 Program or the Conrad 30 Program.

The mechanics of the process

The CIS receives the recommendation or request for the waiver from the IGA. In the case of the academic research waiver the request is from HHS; in the employer/employee circumstance, it is usually from the VA, and, where the IMG is working in underserved areas, the request comes from either a federal agency as set forth above (ARC, HHS, etc.), or from the Department of State (DOS) acting in response to a request by the state department of public health.

Upon receipt of the request, the CIS self generates Form I-612, Application for Waiver of the Foreign Residency Requirement under Section 212(e), and approves same within one to four or more months, the time depending upon the Service Center and its backlogs and priorities. In the case of a federal agency employer or a community based IGA application, the health care facility then petitions for H-1B status on behalf of the IMG. Section 212(l) requires the IMG to work for three years with the petitioning facility to satisfy the terms of the waiver. Failure to complete the three year commitment results in the reinstatement of the two year requirement. Note that the Section 212(l) three year commitment does not apply to those receiving academic research waivers through the HHS.

Eligibility to apply for H-1B status requires much more than the grant of the waiver. The physician beneficiary of the H-1B Petition must provide:

ECFMG certification (required to obtain J-1 status). Evidence that the IMG has passed the Federal licensing examination: Steps 1,2 and 3 of the USMLE. License to practice medicine in the State where the IMG will work. Copies of all DS 2019 and/or IAP-66 forms.

Permanent residency can be obtained in a number of ways and need not be connected with the employment as in the case of an IMG married to a United States citizen (USC). The IMG may apply for a National Interest Waiver based upon service to the under served community pursuant to Section 203(b)(2)(B)(ii) of the INA. However, in these cases the community commitment stretches to five years before permanent residency will be granted.

Criteria for the State 30 Waivers

A foreign physician or hospital/healthcare facility considering the waiver must assess two preliminary factors: (1) Is the facility in a designated shortage area or providing health care to under served populations? and (2) Does the physician provide the type of medical care the specific State has designated as needed in the shortage area?

Determination of shortage areas

The Health Resources and Services Administration (HRSA), which is part of the Department of Health and Human Services (HHS), collects data on locales and regions throughout the United States to assess the levels of need for clinical care. The data is shared with the States which provide their own input on the need for additional areas to be designated or removed. The HHS then publishes the shortage areas in one or more of the following categories:

Health Professional Shortage Areas (HPSA). These are areas established by a mathematical ratio of population to primary care physicians. Mental Health Professional Shortage Areas (MHPSA). Medically Underserved Areas (MUA). These areas are determined by applying four variables - ratio of primary medical care physicians per 1,000 population, infant mortality rate, percentage of the population with incomes below the poverty level, and percentage of the population age 65 or older. The variables result in a 'score.' A score of 62 or less qualifies for MUA designation. Medically Underserved Populations (MUP). Determined with a process even more complex than for the MUA.

Community Health Centers

Community Health Centers (CHC) receiving Federal grant funds are legislatively required to serve areas or populations designated by HHS as medically underserved. Grants to CHCs under section 330 of the Public Health Service Act are available only to centers which serve designated MUAs or MUPs. Thus, foreign physicians employed at such CHCs are eligible to apply for waivers even though the physical location of the CHC may not be in a HPSA, MUA etc.

Restriction to primary care physicians

Generally the State Waiver programs are geared to primary care physicians and general psychiatrists. HHS defines primary care physicians as those practicing general internal medicine, pediatrics, family practice or obstetrics/gynecology. HHS limits waivers to primary care physicians willing to work in a primary care HPSA or MUA/P, and to general psychiatrists willing to work in a Mental Health HPSA. The HHS definitions are employed here because HHS definitions carry enormous weight in waiver cases. Some States will not deviate at all from these definitions, while others will add sub specialties, particularly sub specialties in service of primary care, and allow psychiatrists to practice in MUA/Ps. For this reason it is very important to know the specific requirements of the State in which the physician plans to work.

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