J-1 Waivers for Clinicians and Researchers

1. J-1 Waivers for Clinicians and Researchers H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840rklasko@klaskolaw.comwww.klaskolaw.com

2. H. Ronald Klasko, Esq. • Ron Klaskohas been providing immigration assistance and solutions to leading universities, hospitals, and research institutions for over 25 years.  Ron is a past National President of the American Immigration Lawyers Association.  He has been a member of the AILA Board of Governors since 1980. • His firm, which is the first immigration law firm global partner of NAFSA: Association of International Educators, is authorized counsel for the University of Texas system.  The firm has been selected as one of six top tier immigration firms in the United States for four consecutive years by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners).  This publication noted the firm as the “strongest in the country” when it comes to representing clients in the university research and medical sectors and recognized Ron as “a leading national practitioner who really does it all” who is “literally on the cutting edge” when it comes to immigration policy and legislative issues. • Ron has been selected as one of twelve top tier immigration lawyers in the US by The Chambers Global Guide.  He is selected annually for inclusion in Best Lawyers in America.  The International Who’s Who of Business Lawyers 2007 and 2008 editions selected Ron as the “most highly regarded” immigration lawyer in the world.  • Ron is a frequent author and lecturer on hospital and university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School.  Ron is a graduate of the University of Pennsylvania School of Law.

3. Avoiding Need for J-1 Waiver • Medical Researchers • Who decides if 2 year return requirement? • CIS – not DOS • Visa, DS 2019, advisory opinion not determinative • Only subject if • Skills list • Government financing • Graduate medical education or training

4. Avoiding Need for J-1 Waiver (cont’d) • Skills list advocacy • Country of citizenship or country of last residence • Country of last residence vs. country of last permanent residence • Proving different skills list category • Effect of new country of citizenship • “Impossibility” of fulfillment argument

5. Avoiding Need for J-1 Waiver (cont’d) • Government financing advocacy • Must be during J status • Indirect government financing • Funds earmarked for exchange program

6. Avoiding Need for J-1 Waiver (cont’d) • Medical Doctors • Not subject if: • Not medical education or training • Observation, consultation, teaching or research with incidental patient care under direct supervision of U.S. doctor • ECFMG research fellowship

7. Visa Options Without Needing Waiver • Anything other than H or L visa or change of status • O-1, TN-1, E-3 ok • Canadian doctor H-1B visa-exempt entry ok? • Change of status from F-1 (or other) to H-1B ok • Labor certification and I-140 can be approved • DS230 can be filed • I-485 cannot be filed (except clinical NIW)

8. Fulfilling Two-Year Return Requirement • Return to country of nationality or last residence? • Can fulfill sequentially

9. J-1 Waiver Options • No objection statement • Exceptional hardship • Persecution • Interested government agency

10. No Objection Statement • Researchers only • Usually not helpful if U.S. or international organization funding • Quickest and easiest waiver • Attitudes of different countries

11. Exceptional Hardship Waiver • Hardship to U.S. citizen or LPR spouse or child • Hardship must be “exceptional” • Very difficult

12. Persecution Waiver • Individualized persecution • Similar to asylum

13. Interested Government Agency Waivers • General • Choosing between research track and clinical track • Research track • Usually through HHS • Peer review process – unlike CIS filings • Do not need 3 years in H-1B?

14. HHS Waivers • Key Issues • Importance of research program • Does not have to be NIH funded • Essentiality and uniqueness of foreign national • Recruitment (unavailability of U.S. researchers) • Future of program and future of foreign national • Bench research (at least 30 hours per week) vs. clinical research • Excellence of foreign national’s research

15. HHS Waivers (cont’d) • Other Issues • Involvement of NIH scientists familiar with the research • Reconsideration of denials • Impact of Fulbright funding • Timing

16. Other Medical Research Waivers • Usually limited to agency contracts, grants or research programs • Examples include DOD, NASA, DOE and DOI

17. Obtaining a J-1 Waiver • Clinical Track • Choosing state vs. federal agency • Choosing between states • Cannot file more than one • HPSA or MUA or FLEX 10 or V.A. • Must be 3 years in H-1B • “Extraordinary circumstances” to change employers

18. Obtaining a J-1 Waiver (cont’d) • Timing issues • Vary by state • Vary by federal agency • 3 steps • When to start • Options if J-1 expiring • O-1 • J-1 extension? • Leave U.S.

19. Conrad 30 Waivers • Must be HPSA or MUA • Except FLEX 10 • Agree to begin employment within 90 days of receiving waiver • Can delay if still in training program • Can expedite by filing H-1B before CIS approves waiver

20. Conrad 30 Waivers (cont’d) • Differences between states • Timing • Recruitment required • When/how choose 30? • Primary care? Speciality? Subspecialty? • Use of FLEX 10

21. Federal Government Agency Waivers • Issues in common • 40 hours in HPSA or MUA • Except VA • Primary care • General practice, family practice, internal medicine, psychiatry, pediatrics, OBGYN • Except VA and DRA

22. Federal Government Agency Waivers • Recruitment • Facility must provide medical care to Medicaid/Medicare-eligible and indigent uninsured patients • No non-compete clauses (cont’d)

23. Federal Government Agency Waivers • V.A. Waivers • 3 levels of approvals • National and internal recruitment • At least 5/8 appointment • O-1 must wait 2 years (cont’d)

24. Federal Government Agency Waivers (cont’d) • Appalachian Regional Commission Waivers • Rural counties in 13 states • File with state • Need state concurrence • Some states will transfer Conrad 30 to A.R.C. • Some states do not allow specialty training • Recruitment within last 6 months • Cannot be out of status more than 6 months • HPSA only

25. Delta Regional Authority Waivers • Part of 8 states • HPSA or MUA • No limitation to primary care • Specialty training allowed • Recruitment for 60 days, including national • Site surveys every 6 months

26. HHS Waivers • HPSA of 7 or higher • Need state DOH support letter • Must file within 12 months of completion of primary care residency • Limited to rural health clinics, certain native American facilities and HRSA-grant health centers • Very long process – not user friendly

27. Clinical National Interest Waivers • Credentialing examination required except graduates of US medical school or non-clinical medical practice • Available for physicians working full time in HPSA or MUA or for a VA facility for a minimum of five years • Can switch locations • Can count time before filing, but not J time before H-1B • Can be specialist

28. Clinical National Interest Waivers (cont’d) • Physicians can apply for permanent residence (when EB-2 available) before completing five years, but cannot be approved until completion • Requires letter from state or federal agency attesting that the physician’s work furthers the public interest

29. Questions ?

30. For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP rklasko@klaskolaw.com 215-825-8600 (Philadelphia) 212-796-8840 (New York) www.klaskolaw.com