Your Next Step for Permanent Residency
When physicians have obtained a J-1 Waiver and H1-B visa, it’s not uncommon for them to begin exploring green card options. During their medical training or employment at a health care facility in the U.S., they may have determined that they wanted to continue living and working in the country. You may find yourself in a similar situation. If you want to pursue permanent residency, here are a couple of options available to doctors.
PERM/LABOR CERTIFICATION. If you have a J-1 Waiver or are in lawful status, you can file PERM through your employer. Filing for PERM is the most popular path to a green card for doctors. However, part of the filing process includes certifying that the job can’t be filled by a qualified, willing, and able U.S. citizen who’s interested in or has applied for the same position.
After that point, and after the PERM application has been certified, your employer can file the I-140 Immigrant Petition. Then, once you’ve fulfilled your J-1 Conrad 30 requirements or have obtained your J1 Hardship waiver, you can file the I-485 form for adjustment of status.
NATIONAL INTEREST WAIVER. You can file for a National Interest Waiver (NIW) only if you have already agreed to serve in an area with a health professional shortage, a medically underserved area, or with a U.S Veterans Affairs facility. Then, you must work for a total of five years in one of those service areas for green card eligibility.
Unlike filing for PERM, a doctor can self-petition for an NIW. This option allows you to file, rather than having your employer file or petition for you. Additionally, you can file for both the NIW and have a PERM application pending at the same time, maximizing your green card options.
The biggest mistake I see many J1 visa holders make is waiting too long to apply for their J1 waiver. Why is this an issue?
First, processing times with USCIS are unpredictable and change frequently. Although many of our J1 Hardship waiver cases are approved within four to six months processing times can exceed this time period. This could be a result of the officer reviewing your case or a change in USCIS policy. For instance, we recently had a case that took nine months to receive an approval. This was due to an irrational RFE (Request for Evidence) from USCIS asking for divorce certificates from the J1 waiver applicants even though they had never been married!
Second, if your J1 waiver is approved it does not provide you with lawful status. This means that you will either need to adjust status to lawful permanent residency or apply for a visa to remain in the US lawfully after your J1 waiver is approved. Many of our clients need to apply for a H1B visa in order to lawfully work in the U.S. If you apply for a H1B visa you need to keep in mind that if you are subject to the H1B cap you must apply for your H1B on April 1st for an October 1st start date.
Thus, there are many considerations beyond mere J1 waiver processing times to consider when applying for a J1 waiver. If you can apply sooner rather than waiting to the last few months before your J1 visa expiration you will face less stress in the immigration process.
Please do not hesitate to call our office at 916-613-3553 if you have questions or email us at firstname.lastname@example.org.
What is the difference between the J-1 Conrad 30 waiver cap and the H-1B visa cap? The difference is actually quite significant. As a physician, you entered the U.S. and participated in a residency program on either a J-1 or H-1B visa. If you’re on a J-1 visa, the most popular type of waiver you’ll likely apply for is the Conrad 30.
In this situation, you have to be mindful of the 30 spots that are available for acceptance. Each state has their own cap, so you have to be aware of all the minor requirements your state may have, while being aware of whether or not applications are still being accepted. Remember — always apply early!
The good news is, if your application for the J-1 waiver is accepted, you can apply for an H-1B visa and you don’t have to worry about the H1-B cap. Now, if you decide to apply for the H1-B visa (and you do not obtain a J1 Conrad 30 Waiver), things will be different. If you’re a physician who entered the U.S. and participated in a residency program on an H-1B visa, after your residency, you may work for an employer who is either cap subject or not cap subject.
If your employer is cap subject, you will have to worry about the cap (and again, apply early!), and that means you will have to apply before April 1 for an October 1 start date of employment.
If your employer is not cap subject, then you don’t have to worry. There are situations where a medical facility may not be subject to the cap if they are affiliated with a university — and there is an affiliation agreement demonstrated that this is the case along with additional requirements.
The subject of caps is an issue that can be surprisingly complicated. If you have any question about waiver or visa caps, please don’t hesitate to give us a call, and we’ll help you find the answers you’re looking for.
J Waiver Hardship Approval Based on U.S. Citizen Child
Filed: May 26, 2015
Approved: November 9, 2015
Client and his family are from a Middle Eastern country. Client entered the U.S. on a J visa with his wife on a J-2 visa. While in the U.S. the couple had their first child. The child is now a healthy well adjusted preschool age child and the client did not want to return to his home country. We focused our arguments on conditions in the home country including safety issues, the poor educational system, and the unavailability of comparable medical care. Also, in his home country client would barely be getting by financially but here in the U.S. client commanded a very good salary. Our firm worked very hard researching and writing the legal brief to present the very best case possible. Now client can continue his career with his family in the U.S.
We are proud to publish our most recent I-612 Application Approval to Wave Foreign Residence Requirements:
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