(1) A “No Objection Letter”
A waiver is available if the foreign county of the alien’s nationality or last foreign residence has furnished the Department of State a statement in writing that it has no objection to a waiver of the foreign residence requirement applicable to the exchange visitor. Exchange visitors who are subject to Sec. 212(e) because they have received graduate medical education or training are not eligible for “no objection letter” waivers.
(2) Exceptional hardship:
A waiver of the foreign residence requirement may be obtained if the exchange visitor’s departure from the United States would impose exceptional hardship on the alien’s U.S citizen or permanent spouse or child. However, the hardship waiver is most difficult and complex immigration-related applications.
The exchange visitor may request a waiver of the foreign residence requirement on the ground that he or she would be subject to persecution upon returning home on account of race, religion or political opinion.
(4) Sponsorship by an Interested Government Agency
A waiver of the two-year foreign residence requirement may also be sought upon the request of an interested U.S government agency (IGA). This condition may occur in a case in which the alien is working on a special project for the U.S agency or, if for a private organization, in which a U.S agency is interested. The most difficult step for the alien in obtaining an IGA waiver is convincing a U.S government agency to request a waiver. If the exchange visitor is not employed or funded directly by a U.S government agency, another agency may agree to serve as an IGA depending on the connection of the alien’s work to the agency.
Generally, the IGA wavier should be the first option for J1 physicians since they are ineligible for no objection letter waiver. If sponsorship can be secured from the IGA, the chances of obtaining a waiver are usually much higher than obtaining a waiver on hardship or persecution grounds. While any federal government agency can serve as a waiver sponsor, several agencies have developed special guidelines and procedures for handling sponsorship requests by J1 physicians. These agencies include the Department of Health and Human Services (HHS), the Department of Veterans Affairs (VA), and the Appalachian Regional Commission(ARC). In addition, state health departments have the authority to recommend waivers upto 30 J1 physicians per year under CONRAD program.
(1) HHS program for J-1 physicians who will work in underserved areas.
HHS issued permits J1 physicians waiver if they agree to work in underserved areas. Specifically, the rule allows HHS to accept applications for IGA sponsorship from community health centers, rural hospitals, and other healthcare providers seeking waivers of the two-year foreign residence requirement on behalf of J-1 physicians who have agreed to practice in a facility located in an underserved area.
(2) Employment with a government sponsor
A federal agency may seek to employ the J1 physician directly. The Veterans Administration’s J1 physician sponsorship program is based upon such an employment relationship with the J1 alien. The VA’s sponsorship program was adopted to address this problem. Practitioners have reported that it has been increasingly difficult to obtain VA sponsorship in recent years. For example, VA will no longer request waivers for J1 physicians who will engage in clinical research. In addition, the VA now clearly prefers physicians who will engage in primary care.
(3) Appalachian Regional Commission
The ARC has the longest record of recommending IGA waivers for IMGs. The ARC’s jurisdiction covers counties in the following states: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and all of the State of West Virginia. The ARC limits waivers to primary care practice. In addition, the physician needs to practice on a full-time basis in a federally designed shortage area for primary care or for psychiatric care.
(4) Delta Regional Authority
The Delta Regional Authority (DRA) is a new program aimed at supporting primary placements in an eight-state area, comprising a total of 240 counties and parishes in Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. It is noted that participation may expanded to even more counties and parishes in the future. The DRA waiver program is structured to actively invite state participation.
A facility cannot request sponsorship for a J1 physician under the Conrad Program unless the state in which the facility is located has established a state program. By virtue of Conrad program, a state department of health has authority to act in support of waiver request of petitioning facilities located in the state. In order that foreign physicians can get waiver through Conrad program, they
– must agree to work full-time for a facility in a HSPA or MUA/MUP for at least three years in H-1B “Specialty Occupation” nonimmigrant status;
– must agree to begin work at the facility within 90 days of receiving approval of the waiver by legacy INS.
In addition the physician must obtain a no objection statement from his or her home country if contractually obligated to his or her home country.
The primary statutory distinction between Federal Waiver and State Wavier is that there is a numerical waiver limit imposed on the state while there is no comparable numerical limit imposed on federal agencies. Furthermore, the state implicitly has the flexibility to recommend waivers to medical specialists as opposed to the restriction limiting federal IGAs to primary care physicians.