Canadian Physicians – Getting H-1B Status Without a J Waiver
What is the most common immigration problem for foreign-born physicians who complete their medical residencies and fellowships in the United States?
Most foreign-born physicians complete their training in the U.S. using J visas.
Because of this fact, they are required to return to their countries of origin for 2 years before they are eligible for green cards or for H or L visas. Alternatively, they may be eligible for waivers of the 2-year requirement, particularly if they agree to work in a medically-underserved area for a minimum of 3 years.
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Most physicians are sponsored for J waivers by Federal or State governmental agencies. For example, let’s say that the waiver is sponsored by a state Conrad 30 program. Once the waiver is recommended, the U.S. Department of State must consider the application, a process which can take several months. Only when the State Department sends the waiver to the USCIS can the physician change his or her status to H-1B in order to start working.
So, what’s the problem?
Understanding the Problem
You guessed it. If the process doesn’t get started early enough, the physician is stuck waiting for the J waiver to be processed, and is unable to work.
This happened to one of our clients recently. The physician who was born in Canada, called me and asked what we could do to expedite her ability to work. Fortunately, I had a solution for her.
Remember that a J waiver is required only if the physician is applying for a (1) green card, (2) H-1B visa or (3) an L visa. For almost every physician for whom we apply for a J waiver, the next step is an H-1B visa. But something was different for our client.
Finding a Solution to the Problem
Our client is a citizen of Canada, and therefore, is exempt from the “visa” requirement. Obtaining H-1B status for her would allow her to work in the U.S. without having to apply for an H-1B “visa”.
Although I had used this strategy several times in the past, I am always concerned whether the USCIS officer at the Service Center would be aware of this exception. Sure enough, when we submitted the H-1B petition using premium processing, we quickly received an RFE asking us to submit the J waiver.
The same day that we received the RFE, I wrote a response quoting section 212(e), INA highlighting the word “visa” and submitted it to the USCIS by overnight FedEx.
The very next day, the USCIS notified us that the H-1B petition was approved!
The physician crossed the border, was admitted to the U.S. in H-1B status and went to work treating Americans living in a medically-underserved area.
