j-1 waivers j-1 waivers for clinicians and researchers h. ronald klasko, esq. klasko, rulon, stock...

J-1 WaiversJ-1 Waiversfor Clinicians and Researchers

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 John F. Kennedy, Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

rklasko@klaskolaw.com www.klaskolaw.com

Klasko, Rulon, Stock & Seltzer, LLP

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 NAFSA’s Healthcare Interest Group. His practice emphasizes representation of universities, hospitals and research institutions and their students, scholars, staff and employees.

H. Ronald Klasko, Esq.

Klasko, Rulon, Stock & Seltzer, LLP

Avoiding Need for J-1 Waiver

Medical ResearchersWho 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

Klasko, Rulon, Stock & Seltzer, LLP

Avoiding Need for J-1 Waiver

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

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Avoiding Need for J-1 Waiver

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

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Avoiding Need for J-1 Waiver

Medical DoctorsNot 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

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Visa Options Without Needing Waiver

Anything other than H or L visa or change of statusO-1, TN-1, E-3 okCanadian doctor H-1B visa-exempt entry ok?Change of status from F-1 (or other) to H-1B okLabor certification and I-140 can be approved

DS230 can be filed I-485 cannot be filed (except clinical NIW)

Klasko, Rulon, Stock & Seltzer, LLP

Fulfilling Two-Year Return Requirement

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

Klasko, Rulon, Stock & Seltzer, LLP

J-1 Waiver Options

No objection statement Exceptional hardship Persecution Interested government agency

Klasko, Rulon, Stock & Seltzer, LLP

No Objection Statement

Researchers only Usually not helpful if U.S. or international

organization funding Quickest and easiest waiver Attitudes of different countries

Klasko, Rulon, Stock & Seltzer, LLP

Exceptional Hardship Waiver

Hardship to U.S. citizen or LPR spouse or child

Hardship must be “exceptional” Very difficult

Klasko, Rulon, Stock & Seltzer, LLP

Persecution Waiver

Individualized persecution Similar to asylum

Klasko, Rulon, Stock & Seltzer, LLP

Interested Government Agency Waivers

GeneralChoosing 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?

Klasko, Rulon, Stock & Seltzer, LLP

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 nationalBench research (at least 30 hours per week)

vs. clinical researchExcellence of foreign national’s research

Klasko, Rulon, Stock & Seltzer, LLP

HHS Waivers

Other Issues Involvement of NIH scientists familiar with the

researchReconsideration of denials Impact of Fulbright fundingTiming

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Other Medical Research Waivers

Usually limited to agency contracts, grants or research programs

Examples include DOD, NASA, DOE and DOI

Klasko, Rulon, Stock & Seltzer, LLP

Obtaining a J-1 Waiver

Clinical TrackChoosing state vs. federal agencyChoosing between statesCannot file more than oneHPSA or MUA or FLEX 10 or V.A.Must be 3 years in H-1B

“Extraordinary circumstances” to change employers

Klasko, Rulon, Stock & Seltzer, LLP

Obtaining a J-1 Waiver Timing issues

Vary by stateVary by federal agency3 stepsWhen to startOptions if J-1 expiring

O-1 J-1 extension? Leave U.S.

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

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

Klasko, Rulon, Stock & Seltzer, LLP

Conrad 30 Waivers

Differences between statesTimingRecruitment requiredWhen/how choose 30?Primary care? Speciality? Subspecialty?Use of FLEX 10

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers

Issues in common40 hours in HPSA or MUA

Except VA

Primary care General practice, family practice, internal

medicine, psychiatry, pediatrics, OBGYN Except VA and DRA

Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers

RecruitmentFacility must provide medical care to

Medicaid/Medicare-eligible and indigent uninsured patients

No non-compete clauses

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers

V.A. Waivers3 levels of approvalsNational and internal recruitmentAt least 5/8 appointmentO-1 must wait 2 years

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers

Appalachian Regional Commission WaiversRural counties in 13 statesFile 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 monthsCannot be out of status more than 6 monthsHPSA only

(cont’d)

Klasko, Rulon, Stock & Seltzer, LLP

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

Klasko, Rulon, Stock & Seltzer, LLP

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

Klasko, Rulon, Stock & Seltzer, LLP

Questions?Questions?

Klasko, Rulon, Stock & Seltzer, LLP

For Further Information

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

E-mail: rklasko@klaskolaw.com

Telephone: 215-825-8600 (Philadelphia)

212-796-8840 (New York)

Websites: www.klaskolaw.comwww.worksite-compliance.comwww.eb5immigration.com

Blog: http://blog.klaskolaw.com