Once acquiring an ECFMG certificate, an IMG who wishes to join a residency program at a U.S. medical school must then obtain the necessary visa from a U.S. consulate abroad, or change nonimmigrant status in the U.S. There are only two kinds of visas available to an IMG for graduate medical education: a J-1 Exchange Visitor Visa or an H-1B Temporary Visa for Professionals.

The ECFMG only sponsors candidates for a J-1 Exchange Visitor Visa, as this visa is available even if Step 3 of the USMLE has not been passed. To qualify for an H-1B visa, Step 3 of USMLE must have been passed and a license to practice medicine, even if only a temporary license, must be obtained from the state in which the IMG wishes to train. The medical school is required to provide sponsorship for the H-1B visa. However, because it is simply not possible in most cases for the IMG to meet the requirements for the H-1B visa, the vast majority of IMGs utilize the J-1 visa, sponsored by ECFMG, to undertake graduate medical education.

Before issuing the documentation (Form DS-2019) necessary for J-1 visa issuance, the ECFMG requires a letter from the Ministry of Health in the physician's home country, attesting that the country has need of the skills the physician will acquire in the U.S., and the physician intends to return to the home country to use those skills. Once the DS-2019 is given to the foreign physician, he or she then applies to the U.S. Consulate or Embassy in the home country for issuance of a J-1 visa, or, if in the U.S., to USCIS for a change of nonimmigrant status. The dependent spouse and child of an IMG are issued J-2 visas to accompany the principal.

Home Residence Requirement / 212(e)

Unfortunately, the J-1 visa does carry with it a detrimental limitation that proves frustrating for many physicians, as aliens that undertake graduate medical education on a J-1 visa are required by regulation to return to the home country for not less than two years upon conclusion of the J-1 program. This requirement must be fulfilled or waived before an IMG or a dependent J-2 family member may apply for a work visa (H-1B), L-1 transferee visa, or permanent residence. It should be noted that the O-1 Visa for Extraordinary Ability Aliens remains available to physicians with a 212(e) requirement. However, the O-1 visa does require a showing that the physician has acquired renown and is a recognized scholar in his/her field. CIS has tightened requirements for O-1 eligibility, and it has become increasingly difficult to obtain this type of visa for the average IMG.

CIS and the U.S. Department of State enforce the two-year home residence requirement vigorously and consistently. Once a physician becomes subject to the two-year home residence requirement, the only way to remove the requirement is to either fulfill the requirement by returning home for two years, or obtain a waiver by applying to the U.S. Department of State based on fear of persecution, hardship to a U.S. citizen spouse or child, or sponsorship of an Interested Government Agency (IGA). Otherwise, the requirement haunts the physician for life, no matter how long it has been since the medical residency program.

J-1 Waiver Options

There are numerous options for IMGs to obtain a J-1 waiver, although – as demonstrated below – some of these are more difficult than others. We have attempted to provide a brief discussion of each type of waiver, but would urge any IMG interested in waiver options to consult with one of our attorneys to determine which option is best given the IMG’s personal factors and circumstances.

Persecution

A request for waiver of the home residence requirement based on persecution is rarely used, because of the availability of the more generous benefit, asylum. In most cases in which an IMG has a well-founded fear of persecution, it is advisable to investigate the possibility of an asylum application, thus avoiding the arduous process of the J-1 waiver application altogether. An IMG may seek asylum in the United States if he or she can demonstrate a well-founded fear of persecution upon return to the home country. This entails persuading the government that there is a pattern or practice in the country of nationality, or last country of habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion. For example, if an IMG converted to a new religion while in the U.S., and the new religion that the IMG observes is one that is not tolerated in the home country, that may be a ground for an asylum application if a well-founded fear of persecution is established. This having been said, the persecution waiver is not constrained by some of the limitations of asylum, such as the one year period to apply.

Hardship Waiver

An IMG may request that the home residence requirement be waived on the basis of hardship, if his/her departure from the United States would impose exceptional hardship upon the IMG’s US citizen or permanent resident spouse or child. The exceptional hardship waiver option is difficult to establish and, as such, is infrequently used. The fact that fulfilling the foreign residence requirement would separate the IMG’s family is not enough in itself to establish exceptional hardship. Extenuating circumstances, such as the need for special medical care for a United States citizen spouse or child, or severe economic consequences, such as the inability to support the family abroad, would be considered.

Interested Government Agency (IGA)

The most common method used to obtain a J-1 waiver for an IMG is the Interested Government Agency (IGA) request.

Most entities which sponsor physicians for training do not provide direct employment to the IMG. Rather, a health care facility offering employment to the IMG may sponsor a waiver by utilizing one of several programs, in keeping with program limitations (i.e., VA employers may only utilize the VA for waiver. A health care facility must apply for and comply with the specific requirements of the state department of health of the state in which it is located for a Conrad waiver.)

While the State Conrad waiver programs differ to some degree, there are some common requirements. For example, most require that the IMG must practice primary care medicine in, or provide primary care services to, a Health Professional Shortage Area (HPSA), as defined by the Department of Health and Human Services. Some programs, however, permit non-primary care services, and some permit services to be rendered in a Medically Underserved Area (MUA) or to a Medically Underserved Population (MUP). To determine if the medical facility offering employment is located in a HPSA, the HHS online database should be consulted as well as the State Conrad program officer. Second, all agencies require proof of recruitment efforts for U.S. physicians prior to hiring the IMG, and this can vary from proof of one month of recruitment to proof of six months of sustained recruitment and advertising. The definitions of primary care vary, as some agencies permit geriatrics and emergency medicine under this definition, while others do not. The Conrad 30 Programs, administered at the state level, are generally more amenable to specialty practice than the federal programs, but not all states will permit specialty. Those that do permit specialty practice generally limit the number of waivers granted annually to specialists or use other measures to assure that primary care needs are given top priority. Lastly, all agencies require fulfillment of a long-term employment contract by the IMG, most of 3-year duration but some longer.

For more information about the various options for a J-1 waiver, please visit the U.S. Department of State or arrange an appointment with one of our attorneys.