By Dr. Rajesh Ramanathan, WCI Columnist
This post does not directly deal with investing, real estate, asset protection, or even insurance. This post, however, speaks to the unique career circumstances of one-quarter of the US physician workforce—foreign medical graduates (FMG).
FMGs complete medical schooling outside of the United States, and they often complete partial or complete residencies in their home countries prior to applying for residency in the US. Although FMGs only account for about 25% of the workforce, they are overrepresented in primary care specialties (41%) and account for 42% of the physician workforce in areas of the country with per capita incomes less than $15,000. This is by design, as I will discuss later on.
I arrived in the United States 18 years ago, and unlike most FMGs, I came to the US for undergraduate studies after graduating high school in Indonesia. I am an Indian citizen and so I started my journey on a student visa (F-1 visa). During undergrad, my decision to pursue medicine crystallized, and I was fortunate to get into medical school without a gap. After medical school, similar to other FMGs, I applied to residency as a non-citizen (with the distinct advantage of having completed medical school in the US). It is at this point when I came upon one of the first important immigration forks in the road.
H-1B or J-1 Visa for Medical Residency?
There are two immigration options for residency—a J-1 visa or an H-1B visa. The J-1 visa is a non-immigrant intent exchange-visitor visa. It was historically introduced to improve international relations and to train foreign nationals in certain skills that then could be taken back to their native (home) countries. This visa is explicitly not for the purpose of immigration: the J-1 includes a home residency requirement, meaning that the visa recipient is required to return to their home country for at least a period of two years upon completion of their training. These visas pose less administrative burden for residency programs, and, therefore, the majority of training programs only offer this visa.
The H-1B visa is the other employment visa option. The primary difference between the H-1B and the J-1 is that the H-1B is an immigrant-intent visa that allows the holder to apply for immigration and permanent residency in the US following completion of their residency training. It requires more administrative hoops for the sponsoring program to jump through, and consequently, this visa accounts for only 10% of all US medical trainees. The major drawbacks to the H-1B visa are the six-year term limit (requiring that all training be completed in those six years) and the inability for a spouse-dependent to have employment authorization.
It is fair to say that the wide majority of FMGs enter the US for training hoping to remain in the country long-term. Despite this intention to immigrate, 90% of FMGs obtain a J-1 visa since that is usually the only option available. This was my circumstance where I matched in a general surgery program that offered only a J-1.
Now let's discuss some of the nuances of the J-1 visa, including the ability to get a waiver for that requirement to return to the FMG's native country, and the transition to a full-time practice after residency.
What Is the Home Residency Requirement for J-1 Visas?
There are five broad categories of waivers of the home residency requirement: no objection statement from the home country (does not apply to physicians), exceptional hardship to a dependent US citizen or permanent resident, persecution, the Conrad 30 program, and other interested governmental agencies (IGA).
What Is the Conrad 30 Program?
The Conrad 30 program, named after former Sen. Kent Conrad (North Dakota), was introduced in 1994 and subsequently reauthorized in 2008. The Conrad 30 program provides individual states with up to 30 J-1 waivers per year to address physician shortages in certain areas. The program was designed to help rural and underserved areas, and the waiver hospitals or clinics must be located within a federally designated healthcare provider shortage area (HPSA) or a medically underserved area (MUA). Up to 10 of these waivers can be “flex slots” for areas that may not officially be HPSA or MUA but are still areas that are considered underserved.
The contract period is for three years, and the physician must complete three years of service to successfully waive the two-year home residency requirement. The program allows J-1 visa holders to transition from a non-immigrant J-1 visa to an immigrant-intent H-1B visa. From the employer side, the practice must demonstrate that the position was unsuccessful for six months in recruiting a citizen/permanent resident candidate. Generally, the Conrad waiver favors primary care, although there are typically designated flex spots in most states for specialist services.
Once the waiver is accepted by the sponsoring state health department, a form DS-3035 has to be submitted to the Department of State and USCIS (United States Citizen and Immigration Services). Upon approval by USCIS, a contract is generated by the employer. Unique aspects of the contract include that it must be for a period of at least three years of full-time employment (40 hours/week) at the specified site, provide the prevailing wage, and have no non-compete clause. Employment must commence within 90 days of the approval of the waiver. The process generally takes 4-6 months.
Waiver jobs are generally filled on an ongoing first-come-first-serve basis, making it challenging in highly populous and saturated states like New York, Pennsylvania, Texas, and California. This emphasizes the need to start early with job searches in states with high demand for Conrad 30 waivers or to have a backup plan.
Backup plans include other jobs in areas of the country without as many J-1 waiver applications or using an O-1 visa as a “bridge” to getting a waiver. The O-1 visa is a visa for those with outstanding abilities. For physicians, this is generally contingent upon scientific accomplishments and national recognition. These are challenging visas to secure and require the help of an immigration attorney specifically experienced in O-1 filings. Keep in mind that one cannot transition from an O-1 to permanent residency without first satisfying the home residency requirement or achieving a waiver of it.
What Are Other Federal Interested Governmental Agencies (IGA)?
Outside of the state-based Conrad 30 program, federal IGA include the Veterans Administration (VA), Appalachian Regional Commission (ARC), the Delta Regional Authority (DRA), and the Department of Health and Human Services (HHS).
Of these, the VA is the most common federal IGA that grants the J-1 home residency requirement waiver. It can be attractive since the VA typically does not have a bias toward primary care specialties and since it can support specialists. The VA will need to demonstrate an inability to hire a US physician for the position, and the process can be lengthy, taking 6-8 months. The main challenge is in locating a VA that has experience with the process and is supportive of your application. Salaries tend to be lower at a VA, but the VA has an attractive benefit and retirement package and is often associated with academic centers.
Both the Delta Regional Authority (DRA) and Appalachian Regional Commission (ARC) waivers have similar requirements to the Conrad waiver with respect to service in an HPSA or MUA. As the name suggests, the program applies to practice in certain areas of the country (the Mississippi Delta area and Appalachia). DRA and ARC waivers, however, are not included in the 30-slot Conrad waiver cap. Both these waivers also restrict eligibility to those in primary care (including general pediatrics, internal medicine, obstetrics, psychiatry, and family practice).
What About Persecution and Exceptional Hardship Waivers?
While the programs listed above provide a waiver based on the need of a population of patients, the persecution and exceptional hardship waivers are given to protect the physician and their US family. These are generally more challenging waivers to obtain and should usually be done with the help of a highly experienced attorney. This process is not cheap with attorney costs generally being in the $10,000 range.
The persecution waiver is the more uncommon of the two. As the name suggests, it is meant for individuals whose safety would be threatened by returning to their home country. This could include a governmental threat or a threat due to their religion or other affiliation. The persecution argument must usually be highly supported and can apply to the applicant (physician) or to a US citizen spouse or child. This is a rare exception. The only successful case that I have first-hand knowledge of included a trainee that changed religion during his training. At the same time, his home country got embroiled in a sectarian civil war in which his ‘new’ religion would have resulted in persecution to him and his American wife and child.
The exception hardship waiver, on the other hand, applies only to a US citizen that would be impacted by the return to the applicant’s home country. Unlike the persecution waiver, this waiver has a little more leeway. Circumstances might involve an unsafe political environment for a child (a civil war, for example) or a highly obstructive culture that would severely curtail the freedoms of a US citizen spouse or child. In general, merely the anticipated loss of income or work for a US citizen spouse is not considered to be an exceptional hardship. Again, for both the hardship and persecution waivers, one should approach an experienced attorney to find out if your case would merit an application.
Obtaining such a waiver voids the home residency requirement and allows for immediate application for an H-1B visa and eventual immigration.
Impact on Financial Planning and Disability Insurance
The above process commonly takes a decade or more. As mentioned earlier, I came to the United States 18 years ago and am currently in the midst of the waiver process. Previously, I discussed the retirement planning options available to non-citizens and some unique considerations. Outside of retirement planning, it is important to be aware of some of the casualties of not having permanent status in the United States.
For all physicians on an H-1B or J-1 visa, your legal status is tied to your employment. Therefore, in the case of a termination of employment, disability, or death, legal status ceases with the subsequent deportation of the physician, family, and any US-born minor children. In these cases, the majority of disability benefits are also voided despite payment of premiums since most policies require continued US presence for a fixed portion of the year. This is an important discussion to have with your disability insurance agent—also, it's imperative to understand the fine print of your policy.
As I mentioned earlier, I used a J-1 visa to complete a general surgery residency and a surgical oncology fellowship. In my second year of fellowship, I applied far and wide to jobs that would sponsor a J-1 applicant with a waiver need. This was a tough process. Finally, I found a tremendous opportunity with great mentors and colleagues in a facility located in an HPSA. By the time I signed the contract, however, the cycle for J-1 waiver applications at the state health department had closed (reiterating the need to start the job search early!).
With the help of the legal team at my employer, I applied with success for an O-1 visa (based on my research). I did my first year of employment on an O-1, and in my second year, I applied for a state department waiver. It was a success, and I am currently in my second year of the three-year waiver. I anticipate applying for a transition to permanent status (green card) after my waiver, which will certainly provide more certainty.
For any trainee on a J-1 visa, it is essential to be informed of the rules and pathways for employment and eventual permanent residency. Most administrators and future employers will likely not know the intricacies of transition from a J-1 to an H-1B, and therefore, it is imperative to educate yourself and become an active participant. I am extremely grateful to have had all the opportunities thus far. For as much angst as there is about the US medical system, population outcomes, and the trajectory of graduate medical education, I can attest to the tremendous opportunities available in medicine in this magnificent country.
If you're an FMG who is currently going through or has gone through this process, what's it been like? Have you received a waiver to the home residency requirement? Have you left the US and then returned? How difficult has the process been? Comment below!