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March/April 2002

This newsletter, edited by Theodore Sherman, Esq., and published strictly in an electronic format, contains information pertinent to immigration issues for physicians and scientists who desire to reside in the U.S. on a temporary or permanent basis.

Readers who wish to obtain more information on topics are encouraged to forward your queries to us by completing the online consultation form on our website. We will respond to your particular queries as soon as possible.

Current Immigration Climate in U.S.: Now that we are a number of months beyond the September 11th attacks in NYC, immigration policy in the U.S. is beginning to ease. Embassies in Canada and Mexico have again begun to process accept third-country nationals for U.S. visa processing, and our clients have told us that they are experiencing decreased scrutiny and harassment at U.S. ports of entry. For our clients from certain designated Muslim countries, the added time necessary to undergo additional background checks before issuance of visas has not caused much problem, as the delays have been quite short.

Table of Contents
Topics for Physicians / Scientists

1.1 USDA J-1 Waiver Program Cancellation

On March 4, 2002, Ms. Linda Seckel (Head of the J-1 USDA program) sent me an e-mail that read…

The Department's review of the program concluded that while the program served a good purpose, the potential problems and risks outweighed the benefits of the Department's involvement. I am to return all pending requests. Linda."

We were surprised and saddened by the decision to cancel the program, as it greatly impacts some of our clients who had already accepted positions in medically underserved areas and were planning on starting work this summer. We have initiated a lobbying campaign with our Congressmen and other law firms with the hopes of getting this program reinstated as it serves an important purpose, namely providing quality healthcare to Americans in areas where there are shortages of physicians. Stay tuned for developments in this area.

1.2 The O-1 Visa Option

Physicians on J-1 visas who had planned on obtaining J-1 waivers through USDA may want to consider applying for an O-1 visa as a short-term solution to continue living/working in the U.S. This type of visa requires an employer sponsorship and further requires that the physician have outstanding credentials, including publications/presentations/abstracts, and the ability to obtain stellar letters of reference. The O-1 visa is generally valid for an initial three-year period, and then renewable for successive one-year periods of time. For physicians requiring J-1 waivers, the O-1 visa can provide the physician with some time to locate a substitute J-1 waiver position (VA, State 20).

1.3 J-1 Visa waiver based on exceptional hardship to a U.S. citizen spouse or child

The 'hardship' waiver should be considered as a possible option for physicians who are married to Americans or who have American born children, so long as they can establish that their American spouse or child will suffer 'unusual' hardships by the requirement that the physician return to his/her home country for the required two-year period.

Hardship cases are strongest when the following factors are present: (a) the physician is from a country in substantial turmoil, despair, or where there is substantial anti-American sentiment or increasing violence (Kashmir, Pakistan, Argentina, Venezuela, Peru, Saudi Arabia, much of Africa and the Middle East, and others); (b) the physician can present particular circumstances as to why the hardships that will be suffered by his/her spouse will be exceptional and unusual (U.S. citizens targeted for violence in home country, spouse/children suffer from disease or disorder not treatable in home country, spouse not able to work in U.S. or home country, etc); and (c) the physician can obtain substantial supporting documentation including newspaper articles, reference letters, etc. Hardship waiver applications can require up to eight months for processing by the INS and the U.S. Dept. of State / USIA. Therefore it is important to apply early.

1.4 National Interest Waivers for Physicians in Underserved Areas

The cancellation of the USDA program for J-1 waiver sponsorship does not, in any way, impact the national interest waiver program for physicians working in underserved areas. Physicians are still able to self-petition for permanent residence under this category so long as he/she agrees to work for a five-year period in an underserved area or at a facility operated by the VA (and meets a few additional requirements, as specified elsewhere on our website). Therefore, it is certainly possible to obtain permanent residence in this fashion.

The purpose of our newsletter is to provide current information and developments regarding immigration issues that affect physicians and scientists. This newsletter will be published bimonthly (six times per year), and is free of charge to interested individuals.