Chapter 7 ‘Public Interest’ Waivers Under the Federal J-1 Waiver Programs

• Jurisdiction: United States

Under §212(e) of the Immigration and Nationality Act (INA), any federal government agency can sponsor a J-1 visa holder for a waiver of the home residency requirement if the agency believes a waiver would be in the public interest. In practice, a handful of federal agencies grant virtually all of the public-interest waiver recommendations to J-1 physicians. Most of those waivers are based on committing to work in underserved communities or facilities or in Veterans Administration hospitals; for these waivers, there is an additional set of rules.

This chapter focuses on reviewing the major federal programs that sponsor physician J-1 waivers with a look at the common rules applicable to most of the programs with a discussion of each program individually.

What are the common rules governing federal interested government agency (IGA) waivers?

Pursuant to Title 22 of the Code of Federal Regulations §41.63(c), the U.S. Department of State permits any U.S. government agency to request a waiver of the two-year home residency and physical-presence requirement for a J-1 exchange visitor if the person is “actively and substantially involved in a program or activity sponsored by or of interest to such agency.” Several agencies take advantage of this provision and have programs to sponsor doctors to work in locations they consider in their interest.

There are currently five federal programs run by four agencies that regularly sponsor J-1 waivers for doctors. The agencies are the Appalachian Regional Commission (ARC), the Delta Regional Authority (DRA), the Department of Veterans Affairs (VA), and the Department of Health and Human Services (HHS), which supports two waiver programs.

The Department of State has a specific set of rules applicable to programs placing doctors in shortage areas. The three programs subject to these requirements are those run by ARC, DRA, and HHS’s clinical physician program. The VA program and the HHS researcher program are not subject to these extra rules.

What are the differences between the rules governing federal IGA waivers and Conrad 30 state health agency waivers?

• Conrad 30 waivers require a “no objection” letter from the home country when the international medical graduate (IMG) is contractually obligated to return.

• Federal shortage-area waiver applications may not include noncompetition provisions in their employment contracts.

• Federal law does not impose a recruitment requirement on Conrad 30 waiver, though states nearly always require evidence of unsuccessful recruitment of an American physician.

• Medicare/Medicaid must be accepted by employers seeking a federal waiver for a physician.

• Federal programs do not have the option to approve flex applications in non-shortage areas.

What items must be included in all federal IGA waiver applications?

1. A written request from head of agency or designee.

2. Forms IAP-66 and DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.

3. A copy of the employment contract between the IMG and the facility where he or she will be employed meeting the following requirements:

- A term of employment of at least three years;

- Employment of not less than 40 hours per week of primary care or specialty medicine;

- The physician’s services will be performed in a Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA) (except VAs and waivers based on things other than work in underserved areas); and

- The contract will contain no noncompete clauses.

4. Statement signed by the head of the facility that: (i) the facility is located in an HHS-designated shortage area; (ii) the facility provides care to both Medicaid- and Medicare–eligible patients and indigent uninsured patients; and (iii) the facility serves HHS-designated underserved areas (with a listing of the Federal Information Processing Standards (FIPS) county code and census tract or block number or nine-digit zip code along with the identification numbers of the shortage area).

5. Statement signed by doctor stating the following:

[NAME OF EXCHANGE VISITOR] HEREBY DECLARE AND CERTIFY, UNDER PENALTY OF THE PROVISIONS OF 18 U.S.C. 1001, THAT I DO NOT NOW HAVE PENDING NOR AM I SUBMITTING DURING THE PENDENCY OF THIS REQUEST, ANOTHER REQUEST TO ANY UNITED STATES GOVERNMENT DEPARTMENT OR AGENCY OR ANY STATE DEPARTMENT OF PUBLIC HEALTH, OR EQUIVALENT, OTHER THAN __________ [INSERT NAME OF UNITED STATES GOVERNMENT AGENCY REQUESTING WAIVER] TO ACT ON MY BEHALF IN ANY MATTER RELATING TO A WAIVER OF MY TWO-YEAR HOME-COUNTRY PHYSICAL PRESENCE REQUIREMENT.

6. Documentation of unsuccessful efforts to recruit a U.S. citizen physician for the position to be filled.

HHS Clinical Waivers

Prior to 1994 and the creation of the Conrad program for state health departments (see Chapter 6 for more on Conrad waivers), there were a handful of federal agencies that provided J-1 waivers for physicians. The U.S. Department of Agriculture provided waivers for physicians agreeing to work in rural communities. The Department of Housing and Urban Development issued waivers for physicians agreeing to work in underserved areas in cities. The Veterans Administration (VA) had its program for doctors serving in VA hospitals. The Department of Health and Human Services (HHS) had a program that provided waivers for physicians engaged in research. And the Appalachian Regional Commission (ARC) had a program for physicians agreeing to work in communities in the counties in 12 states covered by that regional development agency.

In the years since, the federal agency waiver landscape has changed. The Department of Agriculture and the Department of Housing and Urban Development have closed their programs. A new regional agency, the Delta Regional Authority, which is modeled on the ARC, created a popular J-1 program. And HHS created a second waiver program in 2002 that is narrowly tailored to certain federally qualified health centers, rural clinics, and Native American tribal health facilities.

In 2002, shortly after the Department of Agriculture ended its program, HHS created a new waiver program that provided a route to a J-1 waiver for a narrow subset of the community previously served by the Department of Agriculture program. The regulation issued in 2002 was fairly broad—it stated that the HHS would issue J-1 waivers to primary-care physicians, required recruiting, and mandated that employers accept Medicare, Medicaid, and indigent patients. HHS issued guidelines in June 2003 that were fairly broad in terms of the types of applications that would be accepted, but those guidelines were quickly withdrawn. In December 2003, new guidelines were released and they have received only minor modifications in the years since.

What types of facilities can file HHS clinical waivers for J-1 physicians?

1. Federally qualified health centers, defined under Section 330 of the Public Health Service Act,[1] which are receiving grants under Section 330;

2. Rural health clinics defined under Section 1102 and 1871 of the Social Security Act[2]; or

3. A Native American/Alaskan Native tribal facility as defined by the Indian Self-Determination and Education Assistance Act.[3]

What physician specialties will be considered for HHS clinical waivers?

HHS will sponsor primary-care doctors only. Those are doctors practicing family medicine, general internal medicine, general pediatrics, obstetrics and gynecology, or general psychiatry. HHS will only support physicians who do not have fellowship training.

Does a facility need to be in a shortage location?

Yes. HHS requires applicants to be in facilities that are in Health Professional Shortage Areas (HPSA) with a score of 7 or higher. Medically Underserved Areas (MUA) and Medically Underserved Populations (MUP) are not considered.

Can an employer use HHS’s National Health Service Corps (NHSC) program at the same time it pursues an HHS J-1 waiver?

Yes, but only if the NHSC position remains unfilled at the end of the NHSC placement cycle.

What items must a physician provide HHS as part of the waiver application?

The physician must provide the following:

- A U.S. Department of State J-1 Waiver Data Sheet (2 copies);

- Copies of Forms DS-2019 for each year in J-1 status;

- A physician statement (using language specified by HHS) that the doctor does not have other waiver applications pending;

- Current curriculum vitae with Social Security number;

- Three letters of recommendations from U.S. residents familiar with the doctor’s qualifications; and

- Credentialing documents (diplomas, licenses, license applications, etc.).

What recruiting documentation must an employer provide HHS?

An employer must provide proof of regional and national recruiting efforts. The employer also must provide to HHS names of non-foreign doctors applying for the job or who were interviewed and the reason why they were not hired.

What are the HHS requirements for the physician’s employment contract?

The J-1 application must include a signed contract that meets the following requirements:

- Has a three-year duration;

- Requires the doctor to work 40-hours per week providing outpatient primary care (see the primary-care fields noted above);

- Specifies the worksite(s) (including the HPSA identifier number) and all listed sites must be in HPSA locations scoring 7 or higher;

- Does not include a noncompetition clause or restrictive covenant;

- Is signed by the head of the medical facility and the physician; and

- Is dated and notarized.

What items are included in an HHS clinical application?

Employers are required to submit the following additional items:

- Form HHS 426, Application for Waiver of the Two-Year Foreign Residence Requirement of the Exchange Visitor Program;

- A cover letter;

- Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative;

- Letter of need from the medical facility, signed by the head of the facility, dated and on letterhead,

...