Waivers for Work in Designated Underserved Areas

Federal agencies (the Veterans Association (VA), Department of Health and Human Services (DHHS) and the Appalachian Regional Commission (ARC)) as well as state agencies through the Conrad State 30 program, may sponsor waivers for physicians with post-residency jobs located in federally designated underserved areas. All programs accept applications based upon positions located in mental health and primary care health professional shortage areas (HPSA) and many also accept applications based upon positions located in federally designated medically underserved areas (MUA) and medically underserved populations (MUP). Click the links below for more information on how to qualify for these waivers as well as other information to help you through the process.

Appalachian Regional Commission (ARC) Waiver program - The ARC waiver requires the foreign born physician to practice at least 40 hours per week as a primary care physician for a minimum period of three years at a health professional shortage area (HPSA) or medically underserved area (MUA) facility located in the Appalachian region. The Appalachian region includes Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. The ARC defines "primary care" as internal medicine, family practice, pediatrics, obstetrics and gynecology, and general psychiatry.

Conrad State 30 Waiver programs - traditionally, only federal government agencies could sponsor foreign born physicians for J-1 waivers. However, in 1994, Senator Kent Conrad sponsored a law that created a program under which each state (plus Washington, D.C., Puerto Rico, Guam, and the U.S. Virgin Islands) could sponsor up to 30 physicians for J-1 waivers each year. To be eligible for a Conrad waiver, the physician must agree to work for three years in a facility located in an underserved area.

Delta Regional Authority Waiver program - The Delta Regional Authority (DRA) is a federal-state partnership serving a 240-county/parish area in an eight-state region. Led by a Federal Co-Chairman and the governors of each participating state, the DRA is designed to remedy severe and chronic economic distress by stimulating economic development and fostering partnerships that will have a positive impact on the region's economy.

Department of Health and Human Services (DHHS) program - In June 2003, DHHS began acting as an IGA to sponsor primary care physicians to work in health professional shortage areas (HPSA) or medically underserved areas (MUAs), as determined by the DHHS' Bureau of Primary Health Care. This policy was in response to the closure of the U.S. Department of Agriculture's (USDA) waiver program in 2002. The DHHS has two waiver tracks - research waivers and clinical waivers.

Department of Veterans Affairs (VA) Waiver program - The VA waiver is available to physicians coming to work in facilities run by the Veterans Administration. Unlike most of the other IGA waivers, the VA waiver is not restricted to primary care physicians nor must the facility be located in a HPSA. However, the VA will only sponsor a foreign born physician for a J-1 waiver if her services are necessary for the continuation of a specific program and the VA's efforts to fill the position with a U.S. physician have failed.

With a few exceptions, the jobs that serve as the basis for the waiver applications must be primary care positions and must be for a contractual three-year period. Primary care is defined as internal medicine, family practice, psychiatry, general practice, pediatrics, obstetrics, and gynecology. The ARC program and certain state programs are unavailable to physicians who have completed fellowship training programs even when the physician has agreed to practice primary care in an underserved area. On the other hand, some state programs permit physicians to work in their sub-specialty while satisfying waiver requirements.

Procedurally, the waiver program involves three stages the interested agency recommendation, the State Department recommendation, and U.S. Citizenship & Immigration Services (USCIS) approval. If a state or federal agency agrees to sponsor a physician for a waiver, it directs a recommendation for a waiver to the State Department Waiver Review Division. The Waiver Review Division of makes its own recommendation to the USCIS service center with jurisdiction over the proposed place of employment. The USCIS issues a final approval on Form I-612 which provides evidence that the physician's home residence requirement has been waived.

DHHS RESEARCH WAIVERS

The Department of Health and Human Services has a well established but fairly restrictive J-1 visa waiver program. The HHS Waiver Review Board accepts applications for waiver by research organizations on behalf of highly qualified researchers.

HHS only approves waivers for physicians with unique and outstanding qualifications that are essential to the research program such that denial of the waiver would cause the collapse of the research program. In addition, the research project must be a high-priority program of national or international significance.

WAIVERS BASED UPON PERSECUTION ON EXCEPTIONAL HARDSHIP TO A SPOUSE OR CHILD

Physicians subject to the two-year home residence requirement who believe that returning to their home country would subject them to persecution or would cause their U.S. citizen or lawful permanent resident spouse or child exceptional hardship may apply for a waiver of the home residence requirement through the USCIS Service Center with jurisdiction over their place of residence. Procedurally, the waiver application is made on Form I-612 along with a statement from the physician regarding the hardship or feared persecution and supporting documentation. If USCIS finds the application to be meritorious, it will forward the application to the Department of States Waiver Review Division. The Waiver Review Division weighs the merits of the waiver application against the purposes of the two-year home residence requirement and returns a recommendation to USCIS for final processing.

Proving persecution for the purposes of a J-1 visa waiver is similar to proving a case for asylum. The persecution feared by the physician must be on account of the physician's race, religion, or political opinion. Some legal authority exists for the proposition that persecution in the J-1 waiver context is more difficult to prove than in the asylum context. In practice, however, arguments that are effective in the asylum context have also been effective in the J-1 waiver context.

To prove exceptional hardship to a U.S. citizen or permanent resident spouse or child, a waiver applicant must look at his or her situation from two perspectives: what the hardship to the qualifying family members would be if they remained in the United States while the J-1 visa holder returned to his or her home country or country of last foreign residence for two years, and what the hardship to the family member would be if he or she accompanies the J-1 visa holder abroad. The waiver applicant must show something more than the hardship normal to a two-year period of separation. The separation of husband and wife or parent and child is consider normal hardship and does not rise to the level required for a waiver approval.

Successful hardship waivers are typically based either upon the need for sophisticated U.S. medical treatment for a physical or mental condition of the spouse or child or upon a combination of lesser factors. The lesser factors can include the interruption of the career of the U.S. citizen or permanent resident spouse, the financial hardship that would be caused by supporting two households, unfriendly social or political conditions in the home country that would make life difficult for the family, the need for the waiver applicant or family members to remain in the United States to care for relatives, and any other creative consideration that can be brought to light.