All physicians who come to the U.S. on a J-1 visa for residency and/or fellowship are required to return to their home country after completing medical training – this is known as the 212(e) home residency requirement. To avoid this requirement, J-1 physicians wanting to work for an FQHC/CHC can apply for a J-1 visa waiver through HHS. The HHS waiver requires the location of the practice to be in a Health Professional Shortage Area (HPSA) or Mental HPSA (MHPSA) for psychiatrists, and the score must be a seven or above. There are several avenues for obtaining a waiver. However, Health and Human Services Waiver (HHS) waivers are the recommended route for FQHCs since their need is for primary care physicians. An important note for HHS waivers, unlike Conrad 30, is that there is no annual cap on applications. HHS classifies primary care as the following:
- Internal Medicine
- Family Practice
- Psychiatry
- Obstetrics/Gynecology
- Pediatrics
HHS will accept hospitalists (as long as residency training was in one of the fields listed above) and specialist applicants on a limited case-by-case basis. One example is a psychiatrist who completed residency but is now obtaining a 1-year specialization or a combined/accelerated program which is completed in 4 or 5 years. This is situation specific, so please contact us to discuss further.
HHS Employer Requirements
- Employment Agreement which specifically addresses the following:
- be of three years’ duration,
- obligate the physician to begin work within the first three months of receiving the waiver approval,
- obligate the physician to work 40 hours per week providing primary care (family practice, general internal medicine, general pediatrics, or obstetrics/gynecology) or general psychiatric services,
- specify the site in which the physician will work (if more than one, all sites must be located in designated health professional shortage areas (HPSAs)
- include a clause that the contract can only be terminated for cause until completion of the three-year commitment.
- May not contain a non-compete clause or restrictive covenant.
- Must Pay the Prevailing: The prevailing wage rate is the base rate paid to a particular worker classification within the locality and in the nearest labor market area.
- Evidence of employer’s regional and national recruitment efforts, including names of non-foreign physicians applying and/or interviewed and reasons why they were not hired. While HHS does not specifically address the length of time recruitment needs to happen, a safe timeline is at least 6 months before submitting the HHS J-1 waiver application. UHC Solutions will play a crucial part in this process.
- FQHCs must be located in a Health Professional Shortage Area (HPSA) with a score of 7+. If the FQHC’s headquarters is located in a HPSA designated area with a score of 7+, all work locations will qualify whether or not that specific site is HPSA designated with a score of 7 or higher. Alternatively, you can use the work location address to qualify also.
Once you file the HHS waiver, it is reviewed and then recommended for approval and forwarded to the U.S. Department of State (DOS). DOS then reviews the same application, recommends their approval, and forwards the application to USCIS, who has the final authority to issue a waiver of the home residency requirement.
Once the J-1 waiver is issued, the next step is to apply for an H-1B visa for the physician. The physician and employer do not have to worry about the H-1B lottery as they are exempt from the annual quota. The H-1B visa provides work authorization for the physician upon graduation from residency/fellowship training. The H-1B process is only handled by USCIS and can take 1-5 months, typically. It should be noted that the physician must have an active and unrestricted medical license to practice in the state where they will be working for the H-1B to be approved. Conversely, to file a J-1 waiver application with HHS, the physician only needs to provide proof that the application for licensure has been submitted in the state where they will work. The entire process from the physician signing a contract to obtaining the H-1B visa takes around 9 – 12 months depending on government processing times. We always advise our clients to start as early as possible and start the J-1 waiver process early.
An important note, if the waiver is not approved by the time the J-1 waiver and subsequent H-1B is approved the physician will simply leave the U.S. and then obtain an H-1B visa stamp to re-enter the U.S. on their new status.
H-1B Visa for Other Medical Occupations
J-1 waivers are generally reserved for MDs or DOs (dentists are excluded). Generally, the following professions obtain their training in the U.S. are under a different visa, which is known as the F-1. Professions that usually are under F-1 visas include:
- Dentists
- Optometrists
- Pharmacists
- Chiropractors
- Behavioral Health Professionals (Psychologist and LCSW/LISW)
All FQHCs are nonprofit entities, which means that if the FQHC has an academic affiliation with an institution of higher education (i.e. a medical residency program) you can hire a qualified employee on an H-1B visa and not have to worry about the H-1B lottery cap (also known as a cap-exempt employer).
A written agreement between the FQHC and the institution should be active and in place at the time of the H-1B filing, which states that as a part of the F-1 training, there is a clinical component in which the students rotate through the FQHC as part of their degree requirements. We can review the agreements and help determine if the FQHC can qualify under this H-1B cap exemption.
