On May 11, 2020 the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on temporary policy changes for J-1 waiver physicians that will be allowed throughout the duration of the Public Health Emergency caused by COVID-19.
Normally, J-1 physicians must return to their country of nationality or country of last residence for two years before applying for an immigrant visa, adjustment of status, or nonimmigrant visa due to the 2-year foreign residence requirement under INA 212(e). A physician can obtain a waiver of this foreign residence requirement (J-1 waiver) and immediately work using an H-1B visa through a state or federal government waiver program. These waiver programs typically require that the physician agree to work full-time (at least 40 hours per week) in a medical or health professional shortage area designated by the U.S. Department of Health and Human Services (HHS).
Due to the COVID-19 pandemic, some J-1 waiver physicians are unable to work full-time due to lack of patients, which could be considered noncompliant with the full-time employment of the J-1 waiver. However, the recent policy change relaxes this requirement temporarily so throughout the duration of the declared Public Health Emergency period (from January 27, 2020- end of the Public Health Emergency), the “USCIS officers will not consider such a failure to work full-time to be a failure to fulfill the terms of the contract.”
Acceptable reasons for the physicians' inability to work full-time throughout the Public Health Emergency as listed by USCIS are: quarantine, illness, travel restrictions, or other consequences of the pandemic.
Additionally, the USCIS will temporarily allow H-1B foreign medical graduates to provide telehealth services in order to meet their service requirement. It is important to note that “those foreign medical graduates, if not working for the VA, must still be providing medical services through their contracting facility that serves patients who reside in such a designated area” and should not be providing telehealth services to patients outside the state of their contracting facility unless they are employed by the VA.
This policy change also offers J-1 waiver physicians greater flexibility during the Public Health Emergency, while not punishing physicians for the unusual circumstances put in place because of the COVID-19 pandemic.
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