Graduate Medical Training: J-1 or H-1B?

In order to pursue graduate level medical training in the United States, an International Medical Graduate (IMG) must decide between entering the United States on either a J-1 or an H-1B visa. Below we provide a brief comparison of the two visas, as well as their advantages and disadvantages.

First, some residency programs only accept one visa type or the other. Most programs who only allow one of the two favor the J-1 over the H-1B. For that reason, recently, 80% of International Medical Graduates come to the U.S. with a J-1 visa.

This statistic reflects that the J-1 has been the dominant category of choice for IMGs. During the 1990s, however, many teaching hospitals started to sponsor H-1B visas, and by 2005, almost 50% of physicians entering the U.S. did so with H-1B visas. In the last decade, however, this has changed as physicians have realized some disadvantages that accompany the H-1B program.

J-1 Requirements

The J-1 visa is an exchange visitor visa. Due to the nature of the exchange visitor visa, most visa holders in the U.S. for graduate medical training do not have a problem fulfilling the foreign-residence requirement after the J-1 program. The foreign-residence requirement means that the physician must return to his or her sending country for two years after the J-1 program. If a physician fails to fulfill the foreign residence requirement, there are three possible consequences:

1. The physician may not change nonimmigrant category while in the U.S. This must be done at a U.S. consulate.
2. The physician is ineligible to receive an H-1B or L-1 visa stamp at a U.S. consulate.
3. The physician is not eligible to obtain a green card.

J-1 physicians have three options after program completion:

1. Fulfill the foreign residence requirement by returning to the sending country for two years. The physician may come back to the U.S. on a work visa after two years.
2. A physician may try to obtain a waiver. The waiver requires either the support of a federal agency or a state health agency, proof of an exceptional hardship to a U.S. citizen or lawful permanent residency spouse or dependent, or demonstration that the applicant will be persecuted upon returning to the sending country.
3. The third option is to leave the U.S. and come back with an O-1 visa. This visa is for physicians with extraordinary ability in the sciences.

As far as credentialing, J-1 applicants must be certified by the Educational Commission for Foreign Medical Graduates (ECFMG) as having a degree at least equivalent to a U.S. medical degree. Applicants must also pass parts 1 and 2 of the U.S. Medical Licensing Examination (USMLE). That certification requires the Clinical Skills assessment as well. The clinical skills portion is only available in the U.S., so most physicians enter the U.S. as a visitor in order to fulfill that requirement, prior to the J-1. Applicants must also pass an English exam.

H-1B Requirements

Teaching hospitals are responsible for filing a petition for H-1B visas for their physicians coming to the U.S. to train. These hospitals must prove that the physician's wage is equal to either the prevailing wage in the community for the profession, or the wage paid to physicians in the same position at the same hospital--whichever is greater.

H-1B physicians must pass all three sections of USMLE before obtaining the visa. The physician must also prove that they have the license needed for the particular state in which they are training. The physician will typically need ECFMG certification in order to obtain state licensure.

The physician and the teaching hospital must file Form ETA 9035, otherwise known as the Labor Condition Application, and must receive approval of this form from the U.S. Department of Labor (DOL). Then the H-1B petition is filed through a U.S. Citizenship and Immigration Services (USCIS) regional service center. The U.S. Department of State (DOS) will receive approval of the petition from USCIS, and the case then moves to a U.S. consulate abroad. The physician will apply for the visa through the consulate, where the employer must demonstrate that they are paying the prevailing wage and maintaining appropriate public access files. Since H-1Bs are usually not available in July, when most residency and fellowship programs begin, the hospital needs to demonstrate that it is exempt from the annual quota of 65,000 H-1 visas. Most of these training programs are exempt since they are typically associated with universities or nonprofits.

Advantages and Disadvantages

Training Period: Advantage to J-1

Physicians in the U.S. with a J-1 visa may stay in the U.S. for graduate medical training for up to seven years, while H-1B visa-holders may only remain for up to six years. If a J-1 physician is granted a waiver of the foreign residence requirement, they are eligible to gain another six years of post-training work under an H-1B.

Exam Requirements: Advantage to J-1

H-1B physicians must complete all three parts of USMLE successfully before obtaining the visa. J-1 physicians only need to complete the first two, and can complete the third once in the U.S. on the J-1.

H-1B Quotas: Disadvantage to H-1B

H-1B physicians are typically not subject to the quota during a training program. However, when these physicians attempt to find their first job post-training, they become subject to the cap. Once the time arrives to find a position, there are usually no remaining visas available.

Cost

The cost responsibility for filing the H-1B petition falls to the employing petitioner, so the employer, rather than the applicant, must consider the filing costs. The filing fees for the J-1 visa are only a few hundred dollars and do not typically require legal aid, making this visa significantly less expensive. H-1B filing fees vary from $820 to $3,320 depending on the employer and the processing speed.

For-Profit Training Programs: Advantage to J-1

For-profit hospitals with training programs are subject to the H-1B cap. The J-1 program does not restrict these employers in the same way.

Hiring: Advantage to J-1

For the J-1 visa, ECFMG must sponsor the physician, rather than the hiring hospital, which is the case for the H-1B. The hospitals have to comply, however, with ECFMG guidelines so that the physicians can be ECFMG sponsored. Typically, these guidelines and requirements are less strict that those for H-1B employers. Hospitals using H-1B must file a Labor Condition Application with the DOL and an I-129, Petition for a Nonimmigrant Worker with USCIS.

J-1 Waiver: Advantage to H-1B

The typical reason to avoid J-1 is the need to waive the foreign residence requirement to remain in the U.S. The waiver process in the past had many steps and often caused a headache for applicants and hospitals. This has changed in recent years, since a much larger number of communities now qualify as shortage areas and thus are eligible areas for J-1 physicians. States may also sponsor up to 10 physicians each year in "flex" spots in areas that are not experiencing a shortage.

Although the waiver process has improved recently, if a physician is interested in an H-1B cap-exempt employer, not having to deal with the J-1 foreign residence requirement is a perk.

Spouses and Dependents

Spouses of J-1 physicians are eligible for work authorization that just requires that the spouse maintains J-1 status. Spouses of H-1B physicians, on H-4 visas, do not have work authorization. Some H-4 spouses may be eligible to work, but only after the spouse has applied for permanent residency and if at least one year has passed since the I-140's approval.

The J-1 foreign residence requirement applies to spouses and children as well as the physician. The J-2 spouse is held accountable for fulfilling his or her residency requirement, separate from the physician.

Timing

If hoping to remain in the U.S. after training, J-1 physicians must obtain a waiver of the foreign residence requirement and then switch to H-1B status. This process often takes more than 6 months to complete, but may be reduced by a few months depending on the government agency sponsoring to waiver.

H-1B transfers generally only take a few weeks to complete. However, the H-1B visa quota number may push that wait back by a few, or many, months.

If an H-1B physician is running out of time, he or she may need to begin green-card processing shortly after starting a job, or even while still in training, if possible.

For J-1 physicians, there are restrictions on how far the green card process can progress wile still in the J-1 waiver service period. They may complete the PERM labor certification process and file an I-140 petition, but they may not file for adjustment of status until the three-year service period is completed.

Dual Intent: Advantage to H-1B

The H-1B visa carries "dual intent." This means that the visa cannot be denied by a USCIS official based on worries that the physician will immigrate to the U.S. This is not the case for J-1 physicians. In reality, J-1s are rarely denied for this reason.

Contracts: Advantage to H-1B

J-1 waiver programs typically come with many contract requirements. Contracts must be for at least three years, specify that the physician works for at least 40 hours each week, and must be for work in an underserved area. J-1 physicians may be required to sign liquidated damages provisions in a contract, requiring the individual to pay a financial penalty for leaving an underserved community. H-1B physicians do not have the burden of these contract requirements. H-1 visas actually grant significant flexibility for employers and physicians.

Flexibility: Advantage to H-1B

It has become increasingly difficult recently to change a training plan initially agreed upon as a J-1 physician. In this regard, the H-1B offers greater flexibility. The H-1B now also has a 60-day grace period for cases in which a physician's's employment is terminated prior to the agreed upon end date.

While the J-1 program has made some significant improvements in recent years, some physicians still prefer the H-1B program. Close attention should be paid to both of these programs, as USCIS and Congress are imposing greater restrictions on the H-1B program in particular.

This post is not meant to serve as legal advice and does not establish an attorney-client relationship. If you have any questions, please do not hesitate to contact our legal team directly.