J-1 Waivers J-1 Waivers for Clinicians and Researchers H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy, Blvd., 17 th Floor317 Madison Ave., Suite 1518 Philadelphia, PA New York, NY

Klasko, Rulon, Stock & Seltzer, LLP Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP. Ron and his firm were chosen by clients and peers as one of the top five immigration firms in the country for five consecutive years and “the strongest in the country in representing clients in the university research and medical sectors.” (Chambers Global) Ron is a former National President of the American Immigration Lawyers Association. He has been a featured invited speaker for the American Association of Medical Colleges (AAMC) and the Educational Commission for Foreign Medical Graduates (ECFMG). He has been Adjunct Professor of Immigration Law at Villanova University Law School and is a frequent author and lecturer on immigration law issues related to academic healthcare institutions. Ron is selected annually for inclusion in Best Lawyers in America. Mr. Klasko is the founder and co-chair of NAFSA’s Healthcare Interest Group. His practice emphasizes representation of universities, hospitals and research institutions and their students, scholars, staff and employees. H. Ronald Klasko, Esq.

Klasko, Rulon, Stock & Seltzer, LLP Avoiding Need for J-1 Waiver Medical Researchers  Who decides if 2 year return requirement? CIS – not DOS Visa, DS 2019, advisory opinion not determinative  Only subject if Skills list Government financing Graduate medical education or training

Klasko, Rulon, Stock & Seltzer, LLP Avoiding Need for J-1 Waiver  Skills list advocacy Country of citizenship or country of last residence  Country of last residence vs. country of last permanent residence Proving different skills list category Effect of new country of citizenship  “Impossibility” of fulfillment argument (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Avoiding Need for J-1 Waiver  Government financing advocacy Must be during J status Indirect government financing Funds earmarked for exchange program (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Avoiding Need for J-1 Waiver Medical Doctors  Not subject if: Not medical education or training Observation, consultation, teaching or research with incidental patient care under direct supervision of U.S. doctor ECFMG research fellowship (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Visa Options Without Needing Waiver Anything other than H or L visa or change of status  O-1, TN-1, E-3 ok  Canadian doctor H-1B visa-exempt entry ok?  Change of status from F-1 (or other) to H-1B ok  Labor certification and I-140 can be approved DS230 can be filed I-485 cannot be filed (except clinical NIW)

Klasko, Rulon, Stock & Seltzer, LLP Fulfilling Two-Year Return Requirement Return to country of nationality or last residence? Can fulfill sequentially

Klasko, Rulon, Stock & Seltzer, LLP J-1 Waiver Options No objection statement Exceptional hardship Persecution Interested government agency

Klasko, Rulon, Stock & Seltzer, LLP No Objection Statement Researchers only Usually not helpful if U.S. or international organization funding Quickest and easiest waiver Attitudes of different countries

Klasko, Rulon, Stock & Seltzer, LLP Exceptional Hardship Waiver Hardship to U.S. citizen or LPR spouse or child Hardship must be “exceptional” Very difficult

Klasko, Rulon, Stock & Seltzer, LLP Persecution Waiver Individualized persecution Similar to asylum

Klasko, Rulon, Stock & Seltzer, LLP Interested Government Agency Waivers General  Choosing between research track and clinical track  Research track Usually through HHS Peer review process – unlike CIS filings Do not need 3 years in H-1B?

Klasko, Rulon, Stock & Seltzer, LLP HHS Waivers Key Issues  Importance of research program Does not have to be NIH funded  Essentiality and uniqueness of foreign national Recruitment (unavailability of U.S. researchers)  Future of program and future of foreign national  Bench research (at least 30 hours per week) vs. clinical research  Excellence of foreign national’s research

Klasko, Rulon, Stock & Seltzer, LLP HHS Waivers Other Issues  Involvement of NIH scientists familiar with the research  Reconsideration of denials  Impact of Fulbright funding  Timing (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Other Medical Research Waivers Usually limited to agency contracts, grants or research programs Examples include DOD, NASA, DOE and DOI

Klasko, Rulon, Stock & Seltzer, LLP Obtaining a J-1 Waiver Clinical Track  Choosing state vs. federal agency  Choosing between states  Cannot file more than one  HPSA or MUA or FLEX 10 or V.A.  Must be 3 years in H-1B “Extraordinary circumstances” to change employers

Klasko, Rulon, Stock & Seltzer, LLP Obtaining a J-1 Waiver Timing issues  Vary by state  Vary by federal agency  3 steps  When to start  Options if J-1 expiring O-1 J-1 extension? Leave U.S. (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Conrad 30 Waivers Must be HPSA or MUA  Except FLEX 10 Agree to begin employment within 90 days of receiving waiver  Can delay if still in training program  Can expedite by filing H-1B before CIS approves waiver

Klasko, Rulon, Stock & Seltzer, LLP Conrad 30 Waivers Differences between states  Timing  Recruitment required  When/how choose 30?  Primary care? Speciality? Subspecialty?  Use of FLEX 10 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Federal Government Agency Waivers Issues in common  40 hours in HPSA or MUA Except VA  Primary care General practice, family practice, internal medicine, psychiatry, pediatrics, OBGYN Except VA and DRA

Klasko, Rulon, Stock & Seltzer, LLP Federal Government Agency Waivers  Recruitment  Facility must provide medical care to Medicaid/Medicare-eligible and indigent uninsured patients  No non-compete clauses (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Federal Government Agency Waivers V.A. Waivers  3 levels of approvals  National and internal recruitment  At least 5/8 appointment  O-1 must wait 2 years (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Federal Government Agency Waivers Appalachian Regional Commission Waivers  Rural counties in 13 states  File with state Need state concurrence Some states will transfer Conrad 30 to A.R.C. Some states do not allow specialty training  Recruitment within last 6 months  Cannot be out of status more than 6 months  HPSA only (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Delta Regional Authority Waivers Part of 8 states HPSA or MUA No limitation to primary care Specialty training allowed Recruitment for 60 days, including national Site surveys every 6 months

Klasko, Rulon, Stock & Seltzer, LLP HHS Waivers HPSA of 7 or higher Need state DOH support letter Must file within 12 months of completion of primary care residency Limited to rural health clinics, certain native American facilities and HRSA-grant health centers Very long process – not user friendly

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