How can an international medical graduate come to the United States and become a doctor?
Most foreign medical graduates (we refer to them here as “FMGs”), often referred to also as “IMGs” (international medical graduates), initially come to the United States to participate in graduate medical training programs. In fact, most states of the United States require medical training in the U.S. in order to obtain a state license to practice medicine.
FMGs who seek to come to the United States for graduate medical training have two main options: the J-1 visa and the H-1B visa. Our firm specializes in both of these nonimmigrant status pathways to becoming a doctor in the U.S.
- J-1 STATUS FOR INTERNATIONAL PHYSICIANS: GRADUATE MEDICAL TRAINING
- H-1B STATUS FOR INTERNATIONAL PHYSICIANS
- CHANGE OF STATUS FROM J-1 TO H-1B
- PHYSICIAN NATIONAL INTEREST WAIVER (PNIW) EB-2 GREEN CARD
- EXTRAORDINARY ABILITY EB-1
- O-1 VISA
- BACKGROUND OF THE J-1 VISA
J-1 STATUS FOR INTERNATIONAL PHYSICIANS: GRADUATE MEDICAL TRAINING
Our practice focuses on the J-1 category of foreign medical graduates (FMGs), i.e., alien physicians, who, generally, are nonimmigrant aliens who have graduated from medical schools outside of the United States, also often referred to as “international medical graduates” (IMGs).
Approximately 80% of FMGs come to the United States in J-1 status, which is the preferred visa option of residency programs. FMGs who wish to pursue medical residencies and other clinical training in the United States in J-1 status must enter the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG). Sponsorship is limited to the duration typically required to complete training as established by the American Board of Medical Specialties, with a maximum duration of the J-1 status of seven years, other than in circumstances of documented exceptional needs. Repeat participation is allowed for up to one year: a FMG may qualify for the eighth year of J-1 status with proof that their home country has an exceptional need in the FMG's specialty training field.
A 30-day grace period is provided to a FMG following the expiration of J-1 status in order for the physician to plan their departure and return to their home country. During this grace period, participants are no longer in J-visa status, and may no longer continue exchange activities. They also may not work.
A FMG may obtain a one-time extension of J-1 status to sit for a board exam within 180 days of completion of the training program. The J-1 visa is renewed every year with DS-2019 form from the ECFMG.
A FMG may change their designated specialty in J-1 status only once, and that must take place within two years of entering the United States.
The Educational Commission for Foreign Medical Graduates is the only sponsor of J-1 visas for physicians in clinical training programs (i.e., residency and fellowship), though universities can occasionally sponsor J-1 visas for certain research track positions.
Requirements for J-1 FMGs
Foreign medical graduates participate in U.S. graduate medical education programs or training at accredited U.S. schools of medicine or scientific institutions most often in J-1 status. The applicant must have adequate prior education and training, and must have passed specified qualifying medical examination(s). Also, there must exist a documented need in the physician's home country for the skills sought by the physician while in the United States.
The U.S. Department of State lists the following seven requirements for a foreign medical graduate to qualify for a J-1 visa:
Alien Physicians must:
- Have adequate prior education and training to participate satisfactorily in the program for which they are coming to the United States;
- Be able to adapt to the educational and cultural environment in which they will be receiving their education and training;
- Have the background, needs and experiences suitable to the program;
- Have competency in oral and written English;
- Have passed either Parts I and II of the National Board of Medical Examiners Examination, the Foreign Medical Graduate Examination, Step I and Step II, or the Visa Qualifying Examination (VQE) prepared by the National Board of Medical Examiners, administered by the Educational Commission for Foreign Medical Graduates;
- Provide a statement of need from the government of the country of their nationality or last legal permanent residence. Providing written assurance to the Secretary of Health and Human Services that there is a need in that country for persons with the skills the alien physician seeks to acquire and the alien physician has filed a written assurance with the government of this country that he/she will return upon completion of the training; and
- An agreement or contract from a U.S. accredited medical school, an affiliated hospital or a scientific institution to provide the accredited graduate medical education, signed by the alien physician and the official responsible for the training.
Doctors who are J-1 “research scholars” (instead of clinical program participants) visit the United States for observation, consultation, teaching or research. No patient contact is permitted, other than incidental patient contact under narrow specified conditions. This is a distinct program sponsored by the ECFMG, though academic medical centers sometimes sponsor their own J-1 research scholar programs. These programs have a five-year limit.
The U.S. Department of State provides additional information as follows:
Non-clinical exchange participants must have:
- A designated United States university or academic medical center may issue an alien physician a Form DS-2019 to enable them to come to the United States for the purpose of observation, consultation, teaching or research if the sponsor signs and appends to the Form DS-2019 a certification which states, “this certifies that the program in which…is to be engaged is solely for the purpose of observation, consultation, teaching or research and that no element of patient care is involved;” or
- The dean of the involved accredited U.S. medical school or his designee must certify the following five points:
- The program is predominantly observation, consultation, teaching or research;
- Any incidental patient contact will be under the direct supervision of a U.S. citizen or resident alien who is licensed to practice medicine in the State in which the activity is taking place;
- The foreign national physician will not be given final responsibility for the diagnosis and treatment of patients;
- Any activities will conform fully with the State licensing requirements and regulations for medical and health care professionals in the State in which the program is being pursued; and
- Any experience gained will not be creditable towards any clinical requirements for medical specialty board certification.
Two-Year Home Country Physical Presence Requirement of INA §212(e)
Certain J-1 exchange visitors are subject to the two-year home country physical presence requirement of Immigration and Nationality Act (INA) §212(e). Generally, the J-1 visa itself will state whether INA §212(e) applies to the alien.
The two-year home country physical presence requirement provides that certain exchange visitors must return to their home country or country of last residence at the end of their exchange visitor programs, and be physically present there for at least two years before being eligible to change nonimmigrant status while in the United States, or to receive a green card, or to obtain certain employment-based nonimmigrant visas.
If a J-1 is subject to INA §212(e), they must fulfill the requirement before they can do any of the following:
- Change status while in the United States to the nonimmigrant categories of temporary worker (H) or intracompany transferee (L);
- Adjust status while in the United States to immigrant visa/lawful permanent resident status (LPR);
- Receive an immigrant visa at a U.S. Embassy or Consulate; or
- Receive a temporary worker (H) or intracompany transferee (L) visa at a U.S. Embassy or Consulate.
Who is Subject to the Requirement of INA §212(e)?
A J-1 is subject to the two-year home country physical presence requirement if one or more of the following applies:
- Government-Funded Exchange Programs – Programs funded in whole or in part by a U.S. government agency, the government of the participant's home country, or an international organization that received funding from the U.S. government or the government of the participant's home country.
- Specialized Knowledge or Skill – Programs involving an area of study or field of specialized knowledge designated as necessary for further development of participant's home country, and the skill appears on the Exchange Visitor Skills List for the home country.
- Graduate Medical Education or Training – Programs designed for participants to receive graduate medical education or training, i.e., programs facilitated by the Educational Commission for Foreign Medical Graduates (ECFMG) for medical trainees.
Medical researchers, or those physicians who come to the U.S. for non-clinical programs, are generally not subject to the INA §212(e) requirement as medical trainees, but they may be subject to the requirement on another basis. Researchers who are subject to the home residency requirement based on government funding and/or the Skills List may seek a waiver of the requirement through a “no objection” letter from the government of the researcher's home country or country of last residence. Additional requirements for a waiver may apply.
INA §212(e) mandates that all doctors who come to the United States as J-1s to pursue graduate medical education or training (residency or fellowship) are subject to the two-year home country physical presence requirement. Unless the doctor returns to their home country or country of last residence for two years, or unless they obtain a waiver of INA §212(e), they face the following consequences:
- The FMG may not change nonimmigrant category within the United States. This means that a visa application must be made at a U.S. consular post abroad, after USCIS approves the FMG's application or petition for a different status;
- The FMG may not obtain a visa in any H or any L category at a U.S. consular post; and
- The FMG may not obtain a green card.
Waivers of the INA §212(e) Two-Year Home Country Physical Presence Requirement
Waivers of the INA §212(e) requirement are available in certain circumstances under five available statutory bases:
- a claim of exceptional hardship to a U.S. citizen or legal permanent resident spouse or child of the participant if the participant is required to return to their country of residence;
- a claim that the participant will be persecuted due to race, religion, or political opinions if they return to their country of residence;
- a request from an interested U.S. government agency on the participant's behalf;
- a “no objection” statement from the participant's government; and
- a request by a designated U.S. state health department or its equivalent.
Government agencies that have sponsored waivers for international medical graduates include:
- The Department of Health and Human Services
- The Department of Veterans Affairs
- The Appalachian Regional Commission
- The Department of Agriculture
- The Department of Housing and Urban Development
A recommendation for a waiver from the Department of State Waiver Review Division (DOS-WRD) is required. Form DS-3035 is used to request this recommendation. If a waiver is denied due to a negative DOS recommendation, there is no appeal of that denial, but it may be possible for the physician to reapply on a different statutory basis.
Notably, physicians may initiate the green card process prior to obtaining a waiver.
Further Details on Waivers of INA §212(e) for FMGs
For many J-1 foreign medical graduates seeking a waiver of the two-year home country physical presence requirement, the key is finding an interested government agency (IGA) willing to recommend a waiver because the physician promises to work in a medically underserved area. Common to all interested government agency waivers for J-1 doctors is the requirement that there is a shortage of qualified U.S. physicians. Medically “underserved” is a term of art for this purpose. Both federal and state public health agencies may act as IGAs.
A Policy Manual of the U.S. Citizenship and Immigration Services contains the following summary of waiver programs:
Foreign Medical Graduates – Federal, State, and Conrad 30 Programs
- General Requirements
Upon completion of the J-1 exchange visitor's program, a foreign medical graduate (FMG) may obtain a waiver of the foreign residence requirement pursuant to INA 214(l) through a recommendation of a state or federal agency interested in facilitating the FMG's employment in a federally designated shortage area as an H-1B nonimmigrant. To be eligible for the waiver, the FMG must:
- Agree to be employed full time in H-1B nonimmigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP).
- Practice medicine at the health care facility named in the waiver application for at least 3 years, and generally in HHS-designated shortage areas.
- An FMG who fails to fulfill the 3-year contract is ineligible for an immigrant visa, lawful permanent resident status, or change of status to another nonimmigrant classification without meeting the 2-year foreign residence requirement unless the failure was due to extenuating circumstances, such as the closure of the facility or hardship to the FMG, and the FMG relocates to another qualifying area for the balance of the 3-year term.
- Obtain a contract from the health care facility located in an area designated by HHS as an HPSA, MUA, or MUP. There are two exceptions to this requirement:
- If the U.S. Department of Veteran's Affairs (VA) requests the waiver so that the FMG could practice medicine with the VA, the FMG must practice medicine with the VA for at least 3 years, but does not need to do so in an HHS-designated shortage area.
- If an interested federal agency requests the waiver so that the agency can employ the FMG full time in medical research or training, the FMG may fulfill the obligation by working for the agency for at least 3 years in that capacity, rather than by practicing medicine in an HHS-designated shortage area.
- Obtain a no objection letter from the FMG's home country if the home government funded the FMG's exchange program.
- Agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date the FMG's J-1 visa expires.
- Employment is not required to begin within 90 days of receipt of the waiver. The FMG must agree to begin employment within this 90-day period.
The maximum number of INA 212(e) waivers that may be granted under INA 214(l) at the request of each state is limited to 30 during each fiscal year (the Conrad 30 program). There is no limit to the number of waivers granted to FMGs under the federal program. An FMG who obtains a waiver under INA 214(l) may not obtain permanent residence, whether by an immigrant visa or by adjustment of status, until the FMG has satisfied the statutory service obligation.
To prevent claims that an FMG did not know the obligations that accompany a waiver under INA 214(l), the foreign residence requirement waiver application approval Notice of Action (Form I-797) contains an addendum. This addendum specifies the terms and conditions imposed on the waiver and identifies the appropriate public law number to indicate whether a state department of public health or an IGA made the request for a waiver. In addition, the applicable public law number is listed on the approval notice.
Before FMGs may engage in employment, the petitioner must submit a Petition for a Nonimmigrant Worker (Form I-129) along with the DOS-WRD favorable recommendation letter, in order to request a change of the FMG's J-1 nonimmigrant status to H-1B nonimmigrant status.
The spouse and child of the FMG waiver recipient must submit an Application to Extend/Change Nonimmigrant Status (Form I-539) in order to change status from J-2 to H-4 nonimmigrant status. The waiver recipient must practice medicine for at least 3 years in an area designated by HHS as a HPSA, MUA, or MUP.
Once the FMG waiver recipient has fulfilled the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, the waiver recipient (and any H-4 dependent family members) becomes eligible to apply for:
- An immigrant visa;
- Lawful permanent residence; or
- An H or L nonimmigrant visa or status.
If the FMG waiver recipient fails to fulfill the terms and conditions imposed on the waiver, the waiver recipient (and any H-4 spouse and child) once again becomes subject to the 2-year foreign residence requirement.
Further Details on Conrad 30 Waiver Program
The Immigration and Nationality Technical Corrections Act of 1994 created a special program to waive the two-year home country residence requirement for foreign medical graduates. Pursuant to the Conrad 30 Waiver Program, also referred to as “State 30,” state departments of public health may sponsor up to 30 J-1 physicians per year for waivers to provide care in underserved communities.
The Conrad 30 Waiver Program, in response to the shortage of qualified doctors in medically underserved areas, allows J-1 FMGs to apply for a waiver of the two-year foreign residence requirement upon completion of the J-1 exchange visitor program.
The following Conrad 30 requirements apply to all J-1 foreign medical graduates. A J-1 FMG must:
- Have been admitted to the United States under section 101(a)(15)(J) of the INA to receive graduate medical training;
- Enter into a bona fide, full-time employment contract to practice medicine in H-1B nonimmigrant status for at least 3 years at a health care facility located in an area designated by S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP), or serving patients who reside in a HPSA, MUA, or MUP.
- Obtain a “no objection” statement in writing from their home country if they are contractually obligated to return to their home country upon completion of the exchange program.
- Agree to begin employment at the health care facility, specified in the waiver application, within 90 days of receipt of the waiver.
Many states offer up to 10 “Flex” waivers each year in non-shortage locations.
Each state has developed its own application rules and guidelines with respect to the Conrad 30 Waiver Program. In order to apply, a J-1 FMG must: (1) obtain the sponsorship of a state public health department, or its equivalent, and (2) complete the DOS Form DS-3035, J-1 Visa Waiver Review Application. The state public health department (or its equivalent) that has agreed to sponsor the FMG for a waiver in turn sends the Form DS-3035 waiver application to the DOS Waiver Review Division (DOS-WRD) for a recommendation.
DOS-WRD will notify USCIS of its recommendation electronically. DOS-WRD will notify the FMG, their attorney of record (if applicable), and their sponsoring state public health department (or its equivalent) by mail. USCIS then makes a final determination on whether to approve the waiver application. USCIS generally will grant the waiver once it receives a favorable recommendation by DOS-WRD. USCIS will then provide written notice of its decision to the FMG and their attorney of record (if applicable).
If applicable, the spouse and children of the waiver recipient must submit Form I-539, Application to Extend/Change Nonimmigrant Status, in order to change their status from J-2 to H-4.
FMGs granted a waiver under the Conrad 30 program must notify USCIS of any material change in the terms and conditions of their H-1B employment during the 3-year period following waiver approval.
What happens if the Conrad 30 waiver recipient fails to fulfill the terms of the waiver?
If the Conrad 30 waiver recipient physician fails to fulfill the terms of the waiver program, the physician and their spouse and children will again become subject to the INA 212(e) two-year foreign residence requirement.
In some cases, USCIS in its discretion will excuse noncompliance with the terms of the waiver program, such as an early termination of the 3-year period of employment, due to extenuating circumstances. Examples of extenuating circumstances include closure of the health care facility or hardship. The burden of establishing eligibility for USCIS's favorable exercise of discretion is on the physician.
Another health care facility may seek to employ a Conrad 30 waiver recipient before the physician has completed the 3-year contract that was specified in the waiver application and in the original H-1B petition by filing a new H-1B petition with the USCIS. In all such cases, there must exist extenuating circumstances that excuse an early termination of employment contract.
H-1B STATUS FOR INTERNATIONAL PHYSICIANS
The H-1B visa provides an alternative path to the J-1 visa for foreign medical graduates (FMGs) seeking clinical training in the United States. Our firm specializes in H-1B visas for international physicians, as well as for other professionals in specialty occupations. Find our comprehensive materials on H-1B visas here.
While the H-1B visa is the most popular type of temporary work visa in the United States, it is not as commonly offered to FMGs by graduate medical education or training (residency or fellowship) programs as J-1 visa because the H-1B sponsorship process is more cumbersome and expensive for graduate programs than the J-1 visa.
Since the early 1990s, the U.S. Congress has allowed physicians to access the H-1B status for clinical practice when academic qualification and licensure requirements are met. The academic and practice requirements include the successful completion of all three U.S. Medical Licensing Examination (USMLE) steps, state medical board licensure requirements, and certification by the Educational Commission for Foreign Medical Graduates (ECFMG). FMGs must have an unrestricted license to practice medicine or have graduated from a foreign or U.S. medical school. This visa also requires the fulfillment of the Department of Labor requirements of prevailing wage and Labor Condition Application (LCA).
H-1B status has a maximum duration limit of six years, regardless of whether a FMG spends their time in training or as an attending physician. An immigrant petition must be filed before the end of the sixth year for the physician to be allowed to renew their H-1B visa beyond that six-year limit.
The following chart compares some of the advantages of the J-1 path versus the H-1B path for international physicians.
This is the most common visa for completing clinical training programs.
This is the most common temporary work visa. It is not as commonly offered to FMGs for clinical training programs because it is more complex and expensive for sponsors.
The J-1 visa has a seven-year limit, which is typically sufficient to complete clinical training. FMGs can apply for eighth or ninth year if there's a unique need in the home country for the FMG's area of expertise. This is advantageous for long subspeciality training programs.
A physician in J-1 training may have that status for seven years, and then another six years in H-1B status to work in the U.S. as an attending physician, assuming they obtain a waiver of the INA §212(e) two-year home country physical presence requirement.
J-1 visa requires the successful completion of only the first two steps of U.S. Medical Licensing Examination (USMLE). H-1B visa, in contrast, requires the successful completion of all three steps.
The H-1B visa has a six-year limit. This means that if a foreign physician comes to the United States to conduct research in H-1B prior to a clinical program, or if a clinical program requires more than six years to complete, the FMG can run out of time. The physician must start the Green Card process in order to extend the visa duration limit past six years.
The H-1B visa is a dual intent visa, which does not require nonimmigrant intent. H-1B status permits the H-1B nonimmigrant to seek a green card while in the United States. The J-1 visa, in contrast, is a single intent visa and requires the FMG to prove nonimmigrant intent.
H-1B does not have a home residency requirement, which means that FMGs in H-1B status can transition to Green Card path more easily than in J-1 status.
H-1B status provides more flexibility with respect to unexpected developments than J-1, which makes it challenging to alter an FMG's initial plan of training.
Unlike J-1 visa holders, H-1B FMGs may obtain a concurrent H-1B through another employer for moonlighting. In contrast, J-1 physicians may not moonlight and may not be compensated by anyone other than their program.
CHANGE OF STATUS FROM J-1 TO H-1B
Physicians may be subject to the H-1B cap after their training program in case of non-exempt employers. However, a J-1 who received a waiver based on working in a shortage area or a VA hospital may qualify for H-1B cap exemption.
A Policy Manual of the U.S. Citizenship and Immigration Services contains the following section on alien physicians' change of status from J-1 to H-1B:
Foreign medical graduates (FMGs) granted a waiver of the 2-year foreign residence requirement under either the state or federal program may change status from J-1 to H-1B. To qualify, the FMG must be otherwise eligible to apply for a change of nonimmigrant status. This includes the requirement for timely filing of the Petition for a Nonimmigrant Worker (Form I-129), requesting change of status.
However, FMGs who obtain a waiver based on exceptional hardship or persecution (under INA 212(e) itself, rather than INA 214(l)) are statutorily ineligible for change of status pursuant to INA 248.
If a J-1 exchange visitor applies for a change of status to H-1B and the H-1B cap has been reached, DHS may extend the applicant's duration of status until the next fiscal year when H-1B status can commence. Additionally, a J-1 exchange visitor who has obtained a waiver based on INA 214(l) is not subject to the H-1B cap.
PHYSICIAN NATIONAL INTEREST WAIVER (PNIW) EB-2 GREEN CARD
The EB-2 second-preference employment category allows individuals of exceptional ability and individuals who are members of professions holding advanced degrees to obtain a Green Card (legal permanent residence).
Generally, qualifying for the EB-2 status requires a job offer and a labor certification. A labor certification is a certification by the U.S. Department of Labor that a position exists for which there are no available American workers. A current or prospective employer may sponsor an EB-2 beneficiary for a labor certification if the employer offers the applicant permanent employment when the alien becomes a legal permanent resident.
In exceptional cases, a job offer and a labor certification are not required to obtain the EB-2 status. This waiver applies to certain highly qualified individuals who prove themselves as “aliens of extraordinary ability” or applicants whose immigration is “in the national interest” of the United States. One reason USCIS may grant a Physician National Interest Waiver (PNIW) is because the physician agrees to work for a period of time in a designated underserved area.
The U.S. Citizenship and Immigration Services lists the following eligibility criteria for Physician National Interest Waiver:
- You must agree to work full-time in a clinical practice. For most physician NIW cases, the required period of service is 5 years
- You must work in a primary care (such as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist) or be a specialty physician
- You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)
- You must obtain a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest (This statement is known as an attestation)
To qualify, applicants must prove superior ability in an area that benefits the United States, and must prove that the benefit is greater than provided typically by a professional in that field. Applications can be filed simultaneously for adjustment of status as well as work authorization and travel permission, and may allow the individual and their dependents to work and travel freely, often within a few months of filing.
EXTRAORDINARY ABILITY EB-1
The EB-1 is an employment-based, first-preference immigrant visa for noncitizens of extraordinary ability who have earned sustained national or international acclaim in their field of endeavor. This category allows self-sponsorship, and no offer of employment or a labor certification is required. To prove extraordinary ability, the petitioner must demonstrate that they are at the top of their field, providing support using materials such as testimonials, original contributions, and other corroborating evidence. Extraordinary ability applicants may self-petition by filing a Form I-140, Petition for Alien Worker.
A publication of the U.S. Citizenship and Immigration Services lists the following requirements for EB-1 status:
You must meet at least 3 of the 10 criteria below, or provide evidence of a one-time achievement (i.e., Pulitzer, Oscar, Olympic Medal) as well as evidence showing that you will be continuing to work in the area of your expertise.
Criteria for Demonstrating Extraordinary Ability
In order to demonstrate you have sustained national or international acclaim and that your achievements have been recognized in your field of expertise, you must either include evidence of a one-time achievement (major internationally-recognized award) or 3 of the 10 listed criteria below (or comparable evidence if any of the criteria do not readily apply):
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts
Another EB-1 eligibility category is outstanding professors and researchers. This category requires international recognition for outstanding achievements in an academic field, and applicants must have at least 3 years of experience in teaching or research in that academic field. Outstanding professors and researches must be entering the United States to pursue tenure or tenure track teaching, or a comparable research position at a university, institution of higher education, or a private employer. Eligibility criteria include an offer of employment from a prospective U.S. employer. No labor certification is required. The U.S. employer must file a Form I-140, Petition for Alien Worker.
A physician, upon completing their exchange visitor program in J-1 status, has the option to leave the United States and re-enter on an O-1 visa. This is a commonly used pathway because it does not require proving a foreign residence where the applicant will return. However, this only postpones the INA §212(e) home residency requirement; it does not eliminate or satisfy it.
O-1 visa requires extraordinary ability in the physician's field of endeavor, proven by sustained national or international acclaim.
BACKGROUND OF THE J-1 VISA
Origins of J-1 Exchange Visitor Nonimmigrant Visa
The modern J-1 exchange visitor program for work-based and study-based programs was created by the Fulbright-Hayes Act of 1961 to “assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.” As stated by U.S. Citizenship and Immigration Services, exchange visitor “programs are designed to promote the interchange of persons, knowledge, and skills, in the fields of education, arts, and science.”
The U.S. Department of State is responsible for the general administration of the J-1 exchange visitor program. The Immigration and Naturalization Service (INS) and the U.S. Department of State determine the admissibility of J-1 visitors and set the conditions for exchange visitors to enter the United States. Foreign medical graduates who wish to pursue medical residencies and other clinical training in the United States in J-1 status must enter the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG).
Application for J-1 Status
Each J-1 must be sponsored by an exchange visitor program sponsor – a public or a private entity –designated as exchange sponsor by the U.S. Department of State. An approved program must exist for one of the following objectives:
- Instructing or Lecturing
- Conducting Research
- Demonstrating Special Skills
- Receiving Training
- Receiving Graduate Medical Education or Training
A J-1 may transfer from one program sponsor to another if the purpose of the transfer is to complete the objective for which the alien was admitted (or changed) to J-1 status.
Initially, the visa applicant must identify a J-1 program sponsor and show that the applicant has the appropriate background for the visa category type and for the particular position in the program. Then, the applicant must go through the visa application process. Finally, once in the United States, the J-1 must comply with the visa's legal requirements and, if applicable, abide by the legal requirements governing transferring programs, extending status, and seeking outside employment.
The first step in obtaining a J-1 visa is to submit Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (formerly known as an IAP-66). The sponsor issues a Certificate of Eligibility to eligible aliens who may use it to apply for a J-1 visa or admission, or to apply to change to J-1 status. Once in possession of Form DS-2019, an exchange visitor applies for a J visa at the consular section of the U.S. embassy or consulate in their home country.
Temporary Stay in J-1
A J-1 visa, unlike the H-1B visa (which is a “dual intent” visa, in that it permits the H-1B nonimmigrant to seek a green card while in the U.S.), requires nonimmigrant intent. Entry conditions require that an alien applying for a J-1 nonimmigrant visa intends to maintain a foreign residence. The J-1 entry conditions require that the alien enters the United States temporarily with no intent to stay permanently. Each J-1 must be able to prove nonimmigrant intent, both at the time of application for the visa and at the time of admission to the United States.
Dependents of J-1
The spouse and dependents (unmarried children under 21 years of age) of a J-1 exchange visitor may come to the United States in the J-2 status, which also enables them to obtain employment authorization in the United States. To apply for employment authorization as a J-2 nonimmigrant, the spouse or child would file Form I-765, Application for Employment Authorization.
J-1 exchange visitors are defined in the Immigration and Nationality Act of 1952 (INA) §101(a)(15)(J), codified in 8 U.S. Code (U.S.C.) §1101(a)(15)(J). The definition encompasses fifteen categories:
- Au Pair
- Research Scholar
- Short-Term Scholar
- Camp Counselor
- Summer Work Travel
- College and University Student
- Secondary School Student
- Government Visitor
- International Visitor
Maximum duration of stay that is allowed depends on the category of the exchange visitor.
At our firm, we focus on the J-1 exchange visitor program category of physicians.