Waiver of the 2-Year HRR for J-1 Medical Doctors
Prior to May 1998
Effective from April 16, 1997, a final rule amends the Immigration and Naturalization Service (Service) regulations relating to waivers of the 2-year home country residence and physical presence requirement (2-year requirement) pursuant to a request by a State Department of Public Health, or its equivalent. These waivers are intended to ease health care shortages by allowing certain foreign medical graduates (FMGs) to work at health care facilities located in geographic areas designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals (HHS-designated shortage areas).
A State Department of Public Health is now allowed to submit waiver requests directly to USIA for FMGs practicing medicine in HHS-designated shortage areas who are on J-1 status, or who acquire J-1 status after admission before, on, or after the enactment, and before June 1, 1996.
The terms and conditions imposed on State-based waivers had been previously set forth and continue to apply. These terms and conditions include, among other things, that the FMG:
(1) Submit to USIA a "no objection'' statement from the government of his or her home country, if he or she is contractually obligated to return to that country;
(2) Demonstrate an offer of full-time employment at a health care facility located in an HHS-designated shortage area and agree to begin employment within 90 days of receiving the waiver approval;
(3) Agree to practice medicine for that health care facility for at least 3 years; and
(4) Agree to practice medicine only in HHS-designated shortage areas during this 3-year period. The statute limits the number of State-based waivers that can be granted to each State to 20 per fiscal year.
An FMG who has been granted a State-based waiver can apply for change of status from J-1 to H1B, provided the remaining eligibility criteria have been satisfied. By implication, under this statutory provision, the FMG's dependent spouse and children, if otherwise eligible, may apply for change of nonimmigrant status from J-2 to H-4.
This provision, however, does not ease the annual numerical limitations imposed on the H1B of 65,000 each fiscal year.
On September 30, 1996, the President signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This extends the State-based waiver program until June 1, 2002. Therefore, FMGs who entered the United States in J-1 status or acquired J-1 status upon arrival before June 1, 2002, may apply for a waiver based on a request by a State Department of Public Health. This amendment is made to ensure the regulation reflects the correct expiration date of the State-based waiver program. This change became effective on September 30, 1996, the IIRIRA enactment date.
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