J-1 Visa physicians completing the 3-year waiver service in a HPSA, MUA or MUP may apply to complete the waiver service with another employer. A J-1 visa waiver transfer is approve by the USCIS when a physician can show that extenuating circumstances exist the prevent him/her from completing the waiver service with the original employer.
The USICS has not provided specific guidance regarding what qualifies as extenuating circumstances. It is the writer’s experience that the USCIS has considered both personal and professional factors in determining whether extenuating circumstances exist that justify a J-1 waiver transfer. Here is a checklist of issues that I review with foreign doctors (IMGS, FMGs) planning a waiver transfer:
- Prevailing Wage/LCA Compliance: Whether the employer is paying the J-1 physician the salary or actual wage prescribed by the contract of employment as well as the Physician’s H-1B Visa application, as well as incentive pay.
- Malpractice and Staffing: Whether the employer is maintaining the required malpractice insurance as well as adequate medical supplies and staffing to assist the J-1 physician in completing the assigned duties without undue exposure to malpractice concerns.
- Patient Base: Whether the employer provides sufficient patient base to permit the J-1 physician to meet the J-1 waiver full-time work requirement on a weekly basis.
- Physician Termination: Whether the employer has simply terminated the J-1 physician’s contract or otherwise fired the J-1 physician.
- Compliance with Waiver Requirements: Whether the employer is violating any terms of the J-1 Waiver Agreement with the sponsoring Conrad 30 state, Department of Health & Human Services (HHS), Appalachian Regional Commission (ARC) or Department of Veteran’s Affairs (VA). Furthermore, whether the employer is requiring the J-1 physician to operate in an unsafe condition or exposing the physician to possible malpractice claim by failing to provide adequate support and staffing.
- Personal Circumstances: Whether the personal circumstances of the J-1 physician have changed significantly such as a marriage, engagement, birth/adoption of a child, illness, disability or such changed personal situation necessitating a relocation.One or more of these factors as well as additional issues unique to the particular physician may be sufficient to prove the extenuating circumstances requirement for a J-1 waiver transfer.