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How to Avoid Losing Your J-1 Waiver if Your Contract is Prematurely Terminated

Posted by Ann Badmus | May 02, 2014 | 0 Comments

You are a physician who received a J-1 waiver through a state or federal government recommendation. You are in the middle of your three-year contract when your employer sends you a 90-day notice of termination because the practice is closing.  After the initial shock, you realize that not only are you out of a job, your immigration status is in jeopardy.  You need to know your options fast!

Fortunately, the government anticipated situations like yours.  Here's the prescription to keep your J-1 waiver and continue  practicing medicine in the U.S.:

  1. Find a new position in an underserved area.  This might be easier said than done but it is absolutely necessary.  The job must be physically located in an underserved area (HPSA or MUA), even if you received a FLEX waiver.  You can work in a different state so long as the location is underserved. In addition, the term of the new contract must cover the remaining time left on your J-1 waiver employment requirement. For example, if you have worked for 1.5 years of the three year requirement, then the new employer must hire for you for the remaining 1.5 years or longer.  Fortunately, your three-year requirement does not start all over again.
  2. Apply for your medical license.  If you are hired in another state where you are not licensed, find out the processing time for a license and apply immediately!  Some states take longer than others so it's important to know whether you can get licensed before your current employment is terminated. You must be licensed in the state where you will work before your new employer can submit an H-1B petition.
  3. Start the H-1B petition process.  To finish your J-1 waiver in a new job, the employer must file an H-1B petition and labor condition application (LCA).  This process can take about 4 to 8 weeks.  Again, you need to be licensed in the state of employment before the H-1B petition is filed. Once your H-1B petition is filed, you can work with the new employer, assuming the new H-1B was filed before you left your original job.   However,  it's best to wait until the H-1B visa is approved before starting work.
  4. Prepare a statement of extenuating circumstances.  As part of the H-1B petition, you must prove to the USCIS that you cannot continue employment with your original employer because of “extenuating circumstances” beyond your control, such as closure of the practice or other hardship to you.  To that end, you need to provide a statement explaining the reasons for the change of employment. In addition, you should present any documents, such as a termination letter, that establish your extenuating circumstances. Keep in mind, you must prove that you cannot continue your current job because of hardship.  There is no laundry list of the facts that constitute hardship to a physician; however, the government has approved a change of employment to another facility in cases where the original sponsoring employer:
    1. Terminated the physician's employment;
    2. Failed to pay the physician's agreed upon salary; or
    3. Attempted to force the physician to engage in unethical conduct.

If you follow this general roadmap, your chances of completing your waiver requirements and remaining in the U.S. are very high.  As always, for your specific circumstances, you should consult with an immigration attorney who has extensive experience working with J-1 waivers and physicians.

To address your unique situation, you are invited to contact our firm at [email protected], 214-672-2161.

The information provided in this article is intended to help you understand basic issues involved in the immigration process for foreign physicians, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.

About the Author

Ann Badmus

Principal and Managing Attorney


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