J-1 Visa Waiver Transfers: H-1B Visas, National Interest Waiver & Green Card Transfers, New Practice
Foreign doctors (IMGs/FMGs) employed in one underserved area (HPSA) and presently serving the 3 or 5 year visa commitment may experience difficulty completing the 3 or 5 year service with the original waiver employer. Some physicians find that they may switch jobs a couple of times during the 5-year waiver service period. Others buy or purchase a practice in a medically underserved area, sometimes, from the original waiver employer.
As appropriate in most cases, the USCIS will permit a transfer to a new state, employer and location so long as the physician commits to complete the waiver service in an underserved area. The following is a helpful checklist for those considering such a transfer:
- Status of New Location: Does the new practice location qualify as a HPSA, MUA or MUP. If it was once qualified, is the designation current. If the practice location does not qualify, can the state issue a facility designation for that location so that it would likely qualify. A request for a specific site/facility designation is typically easier to obtain than an entire service area designation.
- Termination Notice on Present Contract: Most physician contracts contain a clause that permits either the physician or the employer to terminate the contract with notice. The notice required is typically 30, 60, 90, or 120 days. If it is necessary to terminate the old contract, a review of the present contract will ensure that the appropriate notice provisions are complied with before the termination.
- Waiver Physician H-1B Visa Transfer: The J-1 waiver physician’s new employer has to file an H-1B transfer application which with a description of the reasons why the physician seeks to complete the service in the new location. The porting provisions of AC21 may make it possible for the physician to begin employment at the new location fairly quickly and premium processing for the H-1B petition should be considered to obtain a quick decision on the H-1B waiver transfer.
- Waiver Physician National Interest Waiver Transfer: Sometimes, the physician will have a national interest waiver petition pending with the old employer. In such instances, a review of AC21 and USCIS guidelines will determine what steps to take to update the USCIS with information on the job change and whether any new applications are necessary. When filing new applications or updating the USCIS with information on the new position, a letter of support/need from the new state’s appropriate department of health is typically necessary and should be requested ahead of time. The new employer would also need to provide a contract that will assist in fulfilling the 3 or 5 year waiver requirement.
- Waiver Physician PERM Labor Certifications: If the waiver physician who wishes a transfer has a PERM labor certification application pending with the old employer that has not been approved, it is necessary to determine whether that physician may use that application at all after the transfer even if it is approved. In many instances, the application may not be usable by the physician after the transfer.
- Waiver Physician PERM Labor Certification Approved and I-140 Pending: If the waiver physician seeking to transfer has already obtained an approved PERM labor certification application and has an I-140 green card application pending, a thorough review of AC21 should be conducted to determine whether the physician can benefit from the portability provisions. In some instances, the physician may successfully port the I-140 green card application or simply update the USCIS with information about the new position and practice.
- Waiver Physician Self Sponsorship- Buying a Practice: Some waiver physicians seek to transfer their visas to a practice they recently bought or are about to buy. Self-sponsorship is available to complete the J-1 and national interest waiver service in such situations. However, the practice must also be located in a medically underserved area and the physician has to provide supporting such as: purchase contract, office lease, telephone listings, billing and payment information, tax returns, yellow page and internet listings, phone bills, copies of rent payments, utility bills and such other documents that show that the practice is located in an underserved area.
While the law permits waiver physicians to transfer and complete the service in a different practice location, it is a fairly complex process that requires the assistance of an immigration attorney that is very experienced in physician and waiver immigration issues.
In applying for a J-1 visa waiver transfer with the USCIS for a job change, termination or relocation, the physician is required to provide a reason for the transfer. The folllowing lists the issues that are evaluated in submitting a transfer application. [more...]