J-1%20Waivers%20for%20Clinicians%20and%20Researchers

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J-1 Waiversfor Clinicians and Researchers
H. Ronald Klasko, Esq. Klasko, Rulon, Stock
Seltzer, LLP Philadelphia New
York 1800 JFK Blvd., 17th Floor 317 Madison
Ave., Suite 1518 Philadelphia, PA 19103
New York, NY 10017 215.825.8600
212.796.8840
rklasko_at_klaskolaw.com www.klaskolaw.com
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H. Ronald Klasko, Esq.

• Ron Klasko is the Managing Partner of Klasko,
  Rulon, Stock Seltzer, LLP. Ron and his firm
  were chosen by clients and peers as one of the
  top five immigration firms in the country for
  five consecutive years and the strongest in the
  country in representing clients in the university
  research and medical sectors. (Chambers Global)
• Ron is a former National President of the
  American Immigration Lawyers Association. He has
  been a featured invited speaker for the American
  Association of Medical Colleges (AAMC) and the
  Educational Commission for Foreign Medical
  Graduates (ECFMG). He has been Adjunct Professor
  of Immigration Law at Villanova University Law
  School and is a frequent author and lecturer on
  immigration law issues related to academic
  healthcare institutions.  
• Ron is selected annually for inclusion in Best
  Lawyers in America. Mr. Klasko is the founder
  and co-chair of NAFSAs Healthcare Interest
  Group. His practice emphasizes representation of
  universities, hospitals and research institutions
  and their students, scholars, staff and employees.

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Avoiding Need for J-1 Waiver

• Medical Researchers
• Who decides if 2 year return requirement?
• CIS not DOS
• Visa, DS 2019, advisory opinion not determinative
• Only subject if
• Skills list
• Government financing
• Graduate medical education or training

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Avoiding Need for J-1 Waiver
(contd)

• Skills list advocacy
• Country of citizenship or country of last
  residence
• Country of last residence vs. country of last
  permanent residence
• Proving different skills list category
• Effect of new country of citizenship
• Impossibility of fulfillment argument

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Avoiding Need for J-1 Waiver
(contd)

• Government financing advocacy
• Must be during J status
• Indirect government financing
• Funds earmarked for exchange program

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Avoiding Need for J-1 Waiver
(contd)

• Medical Doctors
• Not subject if
• Not medical education or training
• Observation, consultation, teaching or research
  with incidental patient care under direct
  supervision of U.S. doctor
• ECFMG research fellowship

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Visa Options Without Needing Waiver

• Anything other than H or L visa or change of
  status
• O-1, TN-1, E-3 ok
• Canadian doctor H-1B visa-exempt entry ok?
• Change of status from F-1 (or other) to H-1B ok
• Labor certification and I-140 can be approved
• DS230 can be filed
• I-485 cannot be filed (except clinical NIW)

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Fulfilling Two-Year Return Requirement

• Return to country of nationality or last
  residence?
• Can fulfill sequentially

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J-1 Waiver Options

• No objection statement
• Exceptional hardship
• Persecution
• Interested government agency

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No Objection Statement

• Researchers only
• Usually not helpful if U.S. or international
  organization funding
• Quickest and easiest waiver
• Attitudes of different countries

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Exceptional Hardship Waiver

• Hardship to U.S. citizen or LPR spouse or child
• Hardship must be exceptional
• Very difficult

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Persecution Waiver

• Individualized persecution
• Similar to asylum

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Interested Government Agency Waivers

• General
• Choosing between research track and clinical
  track
• Research track
• Usually through HHS
• Peer review process unlike CIS filings
• Do not need 3 years in H-1B?

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HHS Waivers

• Key Issues
• Importance of research program
• Does not have to be NIH funded
• Essentiality and uniqueness of foreign national
• Recruitment (unavailability of U.S. researchers)
• Future of program and future of foreign national
• Bench research (at least 30 hours per week) vs.
  clinical research
• Excellence of foreign nationals research

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HHS Waivers
(contd)

• Other Issues
• Involvement of NIH scientists familiar with the
  research
• Reconsideration of denials
• Impact of Fulbright funding
• Timing

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Other Medical Research Waivers

• Usually limited to agency contracts, grants or
  research programs
• Examples include DOD, NASA, DOE and DOI

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Obtaining a J-1 Waiver

• Clinical Track
• Choosing state vs. federal agency
• Choosing between states
• Cannot file more than one
• HPSA or MUA or FLEX 10 or V.A.
• Must be 3 years in H-1B
• Extraordinary circumstances to change employers

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Obtaining a J-1 Waiver

• Timing issues
• Vary by state
• Vary by federal agency
• 3 steps
• When to start
• Options if J-1 expiring
• O-1
• J-1 extension?
• Leave U.S.

(contd)
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Conrad 30 Waivers

• Must be HPSA or MUA
• Except FLEX 10
• Agree to begin employment within 90 days of
  receiving waiver
• Can delay if still in training program
• Can expedite by filing H-1B before CIS approves
  waiver

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Conrad 30 Waivers
(contd)

• Differences between states
• Timing
• Recruitment required
• When/how choose 30?
• Primary care? Speciality? Subspecialty?
• Use of FLEX 10

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Federal Government Agency Waivers

• Issues in common
• 40 hours in HPSA or MUA
• Except VA
• Primary care
• General practice, family practice, internal
  medicine, psychiatry, pediatrics, OBGYN
• Except VA and DRA

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Federal Government Agency Waivers
(contd)

• Recruitment
• Facility must provide medical care to
  Medicaid/Medicare-eligible and indigent uninsured
  patients
• No non-compete clauses

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Federal Government Agency Waivers
(contd)

• V.A. Waivers
• 3 levels of approvals
• National and internal recruitment
• At least 5/8 appointment
• O-1 must wait 2 years

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Federal Government Agency Waivers
(contd)

• Appalachian Regional Commission Waivers
• Rural counties in 13 states
• File with state
• Need state concurrence
• Some states will transfer Conrad 30 to A.R.C.
• Some states do not allow specialty training
• Recruitment within last 6 months
• Cannot be out of status more than 6 months
• HPSA only

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Delta Regional Authority Waivers

• Part of 8 states
• HPSA or MUA
• No limitation to primary care
• Specialty training allowed
• Recruitment for 60 days, including national
• Site surveys every 6 months

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HHS Waivers

• HPSA of 7 or higher
• Need state DOH support letter
• Must file within 12 months of completion of
  primary care residency
• Limited to rural health clinics, certain native
  American facilities and HRSA-grant health centers
• Very long process not user friendly

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Questions?
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For Further Information

• H. Ronald Klasko, Esq.
• Klasko, Rulon, Stock Seltzer, LLP
• E-mail rklasko_at_klaskolaw.com
• Telephone [phone] (Philadelphia)
• 212-796-8840 (New York)
• Websites www.klaskolaw.com
• www.worsite-compliance.com
• www.eb5immigration.com
• Blog http//blog.klaskolaw.com