J-1 Waivers J-1 Waivers for Clinicians and Researchers H. Ronald Klasko, Esq. Klasko, Rulon, Stock &...
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Transcript of 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
[email protected] 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: [email protected]
Telephone: 215-825-8600 (Philadelphia)
212-796-8840 (New York)
Websites: www.klaskolaw.comwww.worksite-compliance.comwww.eb5immigration.com
Blog: http://blog.klaskolaw.com