Conrad 30 Waiver Program for J-1 Medical Exchange Students

 

Introduction

J-1 MedicalIn most cases, J-1 exchange students are required to complete a 2-year foreign residency requirement after the completion of an exchange program before obtaining a new visa to enter the United States. For most J-1 exchange students, there are waivers of this requirement for possible persecution, exceptional hardship, if there is no objection from the home country, or if a U.S. executive department with a waiver program recommends a waiver as being in the national interest. J-1 international medical graduates (IMGs) are ineligible for no-objection waivers, and J-1 home residency requirement waivers are difficult to obtain in general. However, J-1 IMGs may apply for a waiver under the Conrad 30 Waiver Program, which offers home residency requirement waivers to a limited number of J-1 IMGs, provided that they work for a period of three years in certain designated shortage areas. This article will discuss those waivers, provided by state departments of health, and similar J-1 IMG waiver programs run by certain federal agencies.

Eligibility for the Waiver

Each state has its own eligibility requirements for the Conrad 30 Waiver Program. However, United States Citizenship and Immigration Services (USCIS) lists the following requirements as applicable to any international medical graduate (IMG) beneficiary of the Conrad 30 Waiver Program:

  • IMG must agree to be employed full time in H1B status at a health care facility located in an area designated by the U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP); and
  • IMG must obtain a contract from a health care facility located in an HPSA, MUA, or MUP; and
  • IMG must obtain a “no objection” letter from his or her home country if the home government funded the exchange program; and
  • IMG must agree to begin employment at the qualifying healthcare facility within 90 days of the receipt of the waiver.

Additionally, any IMG seeking the benefits of the Conrad 30 Waiver Program should be aware that completion of the program requires working in a designated shortage area for a period of 3 years. Unless DHS finds that there are extenuating circumstances that prevent the beneficiary from completing the 3-year requirement, he or she will once again become subject to the 2-year foreign residency requirement even after obtaining the waiver.

You may find the most recent lists for HPSAs and MUPs by following the links. There have been areas added since those lists were created in 2011, and any areas subsequently added also qualify even if they are not listed.1

State Government Agencies

In the vast majority of cases, an IMG must seek a waiver from his or her state public health department. Each state has its own requirements for the Conrad 30 Waiver Program in addition to the requirements that apply to everyone. J-1 medical graduates should find the requirements for their state by locating the state's public health department website. For example, an IMG seeking a waiver to work in New York would consult the New York State Department of Health's webpage on the Conrad 30 Waiver Program here.

Interested state public health departments [or equivalents thereof] may recommend up to 30 waivers per-year for eligible applicants.2 Up to 10 of these waivers may be for IMGs to serve patients in MUAs when the facility itself is not in an MUA.3 IMGs practicing specialty medicine are eligible if the state agency demonstrates that there is a shortage of medical professionals in that specialty area to serve the patients who would be served by the Conrad 30 Waiver Program beneficiary.4

After obtaining a recommendation from a designated state agency, the Conrad 30 Waiver Program, the agency must submit a DS-3035, J-1 Visa Waiver Review Application, to the Department of State (DOS).5 It is ultimately the IMG's responsibility to demonstrate his or her eligibility. Along with the DS-3035, the application must include:6

  • Letter from the director of the state agency identifying the IMG and stating that it is in the public interest to grant the waiver;
  • Three-year contract between the IMG and the health care facility that intends to employ the IMG that demonstrates that the health care facility is in a designated shortage area [or if it is not, that the IMG will work in a designated shortage area] and that the IMG will abide by the terms of the contract pursuant to INA § 214(l);
  • Proof that the facility is within a designated shortage area [or that, if inapplicable, the applicant will work in a designated shortage area];
  • Copies of all IAP-66/DS-2019;
  • IMG's curriculum vitae;
  • If the IMG received funding for the exchange program from his or her home government, a no-objection letter from the home government;
  • Each application must be numbered by the state health department such that it is clear that no more than 30 total applications are submitted by the department.

Federal Government Agencies

In limited cases, an IMG may obtain a waiver request from a federal agency. As of today, the only federal agencies with waiver programs for IMGs are the Veterans Administration, HHS, the Appalachian Regional Commission, and the Delta Regional Authority [covering parts of Mississippi, Illinois, and Alabama].7

IMGs with waiver requests from the Department of Veterans Affairs, or who will be performing teaching or training services, do not need to work in a designated shortage area.

HHS has two waiver programs for physicians. One is for researchers8 and the other is for primary care physicians and general psychiatrists in designated HPSAs.9 “Primary physician” is defined as a physician who is working in internal medicine, pediatrics, family practice, or obstetrics/gynecology.10

The following is required by the agency for a successful waiver petition for an IMG:

In order to petition for a waiver for the IMG, the federal agency must submit the following pursuant to 22 C.F.R. § 41.63(c):11

  • Explanation why granting the waiver would be in the public interest, and why not granting the waiver would have a detrimental effect on the program or activity;
  • All SEVIS DS-2019 forms and the J-1 beneficiary's current address and nationality;
  • Copy of employment contract between the IMG and the facility [must be for at least 3 years, require not less than 40 hours of work per week in primary or specialty care medicine in an HPSA or MUA/P, or psychiatric care in a Mental Health Professional Shortage Area (MHPSA) unless the requesting agency is the Veterans Administration, and cannot include a no-compete clause];
  • Statement by head of the facility that the facility is located in a MUA/P, HPSA, or MHPSA with a score of 7 or above and provides care to Medicaid or Medicare eligible and indigent uninsured patients [along with I.D. number of the designated area and Federal Informational Processing Standards count code and census track or 9-digit zip code where the facility is located];
  • Statement by the IMG under penalty of perjury that he or she is not applying with any other agency for a waiver from the home residency requirement; and
  • Evidence provided by the agency that it made a good-faith effort to recruit a qualified U.S. physician for the position

Note that unlike Conrad Waiver requests by state departments of health, the IMG beneficiary of a request for a waiver by the federal government may not under any circumstances work outside of a designated shortage area unless the requesting agency was the Veterans Administration.

After the Waiver is Granted

Upon being granted a waiver, the petitioning agency must submit a Form I-129, Petition for a Nonimmigrant Worker, along with the recommendation letter, in order to change the IMG's status from J-1 to H1B. INA § 214(l)(A) allows the Attorney General to change the status of the IMG in this circumstance without regard to the normal procedures found in INA § 248(a)(2). Pursuant to INA § 214(l)(2), the annual numerical cap on H1B Visas does not apply to IMG Conrad waiver beneficiaries or waiver beneficiaries of a federal program. Derivative J-2 beneficiaries of the J-1 must submit the Form I-539, Application to Extend/Change Nonimmigrant Status, to change from J-2 status to H-4 status.

The beneficiary of the Conrad waiver must fulfill the 3-year contract in order to remain exempt from the home residency requirement. The only exception is if DHS determines that extenuating circumstances, such as the closure of the medical facility or hardship to the alien, would justify a shorter period, in which event, the applicant must demonstrate another bona fide offer of employment in a designated shortage area for the remainder of the 3-year period.12 The IMG must also not practice medicine outside of a shortage area and, over the 3 years, ultimately fulfill all of the terms of his or her contract.13

IMGs who obtained waivers from federal agencies for medical research or training are not necessarily subject to the 3-year requirement.14

Failure to fulfill the terms of the waiver will subject the waiver beneficiary and any derivative beneficiaries to the home residency requirement.

If the Conrad Waiver beneficiary completes the waiver requirements, he or she and any derivative beneficiaries will be eligible to apply for immigrant visas, permanent residence, and H or L nonimmigrant visas.15

Advice

J-1 medical exchange students should not enter into a J-1 program under the assumption that, at the end of their studies, they will be able to obtain waivers under the Conrad 30 Waiver Program. However, if at the end of studies, an IMG wishes to apply for a waiver, he or she should be proactive in seeking a request from a state department of health or under a qualifying federal program. If the IMG receives a recommendation, he or she should consult with an experienced immigration attorney for assistance in properly submitting all of the required information to successfully obtain a waiver.

After obtaining the a Conrad Waiver, it is important for the IMG to fulfill the terms of his or her 3-year commitment. Failure to fulfill the terms will lead to the IMG to spend two years in his or her home country. If for any reason, fulfilling the 3-year requirement becomes impossible, the IMG should consult with an experienced immigration attorney for assistance in receiving permission from DHS to finish the 3-year requirement at a different qualifying location.

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  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 899, citing 76 FR 68198-99 (Nov. 3, 2011)
  2. Kurzban 899
  3. Kurzban 900, citing INA § 214(l)(1)(D)(ii)
  4. Kurzban 900, citing 60 FR 16785, 16786 (Apr. 3, 1995)
  5. Kurzban 900, citing 8 C.F.R. § 212.7(c)(9)
  6. Id., for the list
  7. Kurzban 900
  8. Id., citing 45 C.F.R. § 50.1
  9. Kurzban 900-901, citing HHS, Application for Waivers for Clinical Medicine, reproduced in 81 No. 3 Interpreter Releases 82-83, 91-100 (Jan. 19, 2004)
  10. Id.
  11. Kurzban 901, for the subsequent list
  12. Kurzban 899-900, citing, Matter of Southeaster Pediatric & Adolescent Medicine, LIN 02-111-54784 (AAO Feb. 10, 2003)
  13. Kurzban 900, citing 9 FAM 40.202 N.2.5.
  14. Kurzban 901
  15. “Conrad 30 Waiver Program,” USCIS, March 22, 2011

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C. ALIA Publications, 2014. 899-901,. Print. Treatises & Primers.

“Conrad 30 Waiver Program,” USCIS, March 22, 2011, available at http://www.uscis.gov/working-united-states/students-and-exchange-visitors/conrad-30-waiver-program [link]