Foreign doctors (IMGs/FMGs) employed in one underserved area (HPSA) and presently serving the 3 or 5 year visa commitment may experience difficulty completing the 3 or 5 year service with the original waiver employer. Some physicians find that they may switch jobs a couple of times during the 5-year waiver service period. Others buy or purchase a practice in a medically underserved area, sometimes, from the original waiver employer.

As appropriate in most cases, the USCIS will permit a transfer to a new state, employer and location so long as the physician commits to complete the waiver service in an underserved area. The following is a helpful checklist for those considering such a transfer:

•  Status of New Location: Does the new practice location qualify as a HPSA, MUA or MUP. If it was once qualified, is the designation current. If the practice location does not qualify, can the state issue a facility designation for that location so that it would likely qualify. A request for a specific site/facility designation is typically easier to obtain than an entire service area designation.
• Termination Notice on Present Contract: Most physician contracts contain a clause that permits either the physician or the employer to terminate the contract with notice. The notice required is typically 30, 60, 90, or 120 days. If it is necessary to terminate the old contract, a review of the present contract will ensure that the appropriate notice provisions are complied with before the termination.
• Waiver Physician H-1B Visa Transfer: The J-1 waiver physician’s new employer has to file an H-1B transfer application which with a description of the reasons why the physician seeks to complete the service in the new location. The porting provisions of AC21 may make it possible for the physician to begin employment at the new location fairly quickly and premium processing for the H-1B petition should be considered to obtain a quick decision on the H-1B waiver transfer.
• Waiver Physician National Interest Waiver Transfer: Sometimes, the physician will have a national interest waiver petition pending with the old employer. In such instances, a review of AC21 and USCIS guidelines will determine what steps to take to update the USCIS with information on the job change and whether any new applications are necessary. When filing new applications or updating the USCIS with information on the new position, a letter of support/need from the new state’s appropriate department of health is typically necessary and should be requested ahead of time. The new employer would also need to provide a contract that will assist in fulfilling the 3 or 5 year waiver requirement.
• Waiver Physician PERM Labor Certifications: If the waiver physician who wishes a transfer has a PERM labor certification application pending with the old employer that has not been approved, it is necessary to determine whether that physician may use that application at all after the transfer even if it is approved. In many instances, the application may not be usable by the physician after the transfer.
• Waiver Physician PERM Labor Certification Approved and I-140 Pending: If the waiver physician seeking to transfer has already obtained an approved PERM labor certification application and has an I-140 green card application pending, a thorough review of AC21 should be conducted to determine whether the physician can benefit from the portability provisions. In some instances, the physician may successfully port the I-140 green card application or simply update the USCIS with information about the new position and practice.
• Waiver Physician Self Sponsorship- Buying a Practice: Some waiver physicians seek to transfer their visas to a practice they recently bought or are about to buy. Self-sponsorship is available to complete the J-1 and national interest waiver service in such situations. However, the practice must also be located in a medically underserved area and the physician has to provide supporting such as: purchase contract, office lease, telephone listings, billing and payment information, tax returns, yellow page and internet listings, phone bills, copies of rent payments, utility bills and such other documents that show that the practice is located in an underserved area.

While the law permits waiver physicians to transfer and complete the service in a different practice location, it is a fairly complex process that requires the assistance of an immigration attorney that is very experienced in physician and waiver immigration issues.

In applying for a J-1 visa waiver transfer with the USCIS for a job change, termination or relocation, the physician is required to provide a reason for the transfer.  The folllowing lists the issues that are evaluated in submitting a transfer application.  [more...]

J-1 Waiver Physician Job Change/Employment Transfer

We frequently receive requests to evaluate the possibility of a J-1 visa waiver transfer and what reasons may justify a transfer. In most instances, the affected physician needs to transfer his/her H-1B waiver to another J-1 waiver location as well as the I-140/National Interest Waiver Application.

Whether the physician is transferring from a hospital setting to a practice group or vice-versa, here is a list of the issues that I discuss with affected physicians one or more of which might form a basis for successful J-1 Waiver Transfer request:

• Prevailing Wage: Whether the employer is paying the J-1 physician the salary or actual wage prescribed by the contract of employment as well as the Physician’s H-1B Visa application;
  
•  LCA Compliance: Whether the employer is paying the J-1 physician prevailing wage as required by the H-1B and LCA filings.
  
• Incentive Pay: Whether the employer is also making timely incentive payments earned by the J-1 physician since the employer is required to pay the higher of the prevailing or actual wage which includes incentives.
  
• Malpractice and Staffing: Whether the employer is maintaining the required malpractice insurance as well as adequate medical supplies and staffing to assist the J-1 physician in completing the assigned duties without undue exposure to malpractice concerns.
  
• Working Conditions: Whether the employer is requiring the J-1 physician to operate in an unsafe condition or exposing the physician to possible malpractice claim by failing to provide adequate support and staffing.
  
• Employer Finances: Whether the employer’s poor financial state creates instability in the J-1 physician’s practice.
  
• Patient Base: Whether the employer provides sufficient patient base to permit the J-1 physician to meet the J-1 waiver full-time work requirement on a weekly basis.
  
• Physician Termination: Whether the employer has simply terminated the J-1 physician’s contract or otherwise fired the J-1 physician.
  
• Compliance with Waiver Requirements: Whether the employer is violating any terms of the J-1 Waiver Agreement with the sponsoring Conrad 30 state, Department of Health & Human Services (HHS), Appalachian Regional Commission (ARC) or Department of Veteran’s Affairs (VA).
  
• Personal Circumstances: Whether the personal circumstances of the J-1 physician have changed significantly such as a marriage, engagement, birth/adoption of a child, illness, disability or such changed personal situation necessitating a relocation.

We evaluate the listed factors as well as any others that are unique to the physician’s situation to assess what factors will be submitted in support of the J-1 waiver transfer and job change.

December 15, 2009 - Congressman Luis Gutierrez has introduced legislation for comprehensive immigration reform in the U.S. House of Representatives, Comprehensive Immigration Reform for America's Security and Prosperity (CIR ASAP) Act of 2009. The legislation contains provisions for a guest worker program, legalization for certain illegal aliens as well as a path to citizenship for undocumented aliens.

With this proposed legislation, aliens in an illegal or undocumented status in the United States will have a path to legalization and citizenship after meeting some conditions. It also provides an opportunity for undocumented workers to have work authorizations. The legislation further aims to keep families together by reforming the laws on how aliens who have family members in the United States are deported while addressing the long waiting lines for immigration visas by providing additional visas for those in line.

Among the items addressed in this comprehensive immigration reform legislation are the following:

• Border Security, Detention, and Enforcement
• Employment Verification
• Immigration Visa Reforms
• Earned Legalization Program for the Undocumented
• Earned Adjustment of Status Program
• Strengthening America's Workforce
• Integration of New Americans

Other topics addressed by the immigration reform act include:

• Improved Border Security
• Protecting Family Unity
• Reducing Backlogs and Reforms on Numerical Limits on Visas
• Visa Program for qualified undocumented workers
• Immigration Benefits for Persons Brought to the U.S. before Age 16
• L-1, EB-5, H-1B and H-2B Visa Program Reforms

 [Review A Summary of the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009]