Losing the IGA Waiver
If you are a foreign physician and you do not comply with the requirements of an IGA waiver, you will become subject to the two-year foreign residency requirement. To avoid this, you must prove to the USCIS that you cannot continue employment with your sponsoring facility because of “extenuating circumstances” beyond your control, such as closure of the sponsoring facility or hardship to you. In addition, you must agree to work for another employer in an underserved area (HPSA or MUA). There is no laundry list of the facts that constitute hardship; however, the USCIS has approved a change of employment to another facility in cases where the original sponsoring employer terminated a foreign physician's employment, failed to pay the foreign physician's agreed-upon salary, or attempted to force the foreign physician to engage in unethical conduct.
Alternatives to Waivers
A foreign physician who cannot obtain a J-1 waiver immediately may still remain in the U.S. after completion of their residency program by obtaining an extraordinary ability visa (O-1) or a treaty investor visa (E-2). If the physician qualifies for an O-1 or E-2 visa, they must obtain the visa at a U.S. consulate. They cannot obtain a change of status from J-1 to O-1 or E-2 while remaining in the United States.
It is important to note that while the O-1 and E-2 visa permit J-1 physicians to live and work in the United States without first obtaining a J-1 waiver, these visas do not waive the two-year foreign residency requirement. As such, if the physician ever wishes to become a permanent resident or U.S. citizen, they will have to either return to their home country for two years or obtain a J-1 waiver at some point in the future.
In our next articles we will discuss the O-1 and E-2 visas.