Transcript J-1 Waivers for H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP

J-1 Waivers
for Clinicians and Researchers
H. Ronald Klasko, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia
New York
1800 JFK Blvd., 17th Floor
Philadelphia, PA 19103
215.825.8600
317 Madison Ave., Suite 1518
New York, NY 10017
212.796.8840
www.klaskolaw.com
[email protected]
H. Ronald Klasko, Esq.

Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP. Ron and
his firm were chosen by clients and peers as one of the top five immigration firms in
the country for five consecutive years and “the strongest in the country in
representing clients in the university research and medical sectors.” (Chambers Global)

Ron is a former National President of the American Immigration Lawyers Association.
He has been a featured invited speaker for the American Association of Medical
Colleges (AAMC) and the Educational Commission for Foreign Medical Graduates
(ECFMG). He has been Adjunct Professor of Immigration Law at Villanova University
Law School and is a frequent author and lecturer on immigration law issues related to
academic healthcare institutions.

Ron is selected annually for inclusion in Best Lawyers in America. Mr. Klasko is the
founder and co-chair of NAFSA’s Healthcare Interest Group. His practice emphasizes
representation of universities, hospitals and research institutions and their students,
scholars, staff and employees.
Klasko, Rulon, Stock & Seltzer, LLP
Avoiding Need for J-1 Waiver

Medical Researchers
 Who
decides if 2 year return requirement?
CIS – not DOS
 Visa, DS 2019, advisory opinion not determinative

 Only
subject if
Skills list
 Government financing
 Graduate medical education or training
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Klasko, Rulon, Stock & Seltzer, LLP
Avoiding Need for J-1 Waiver
(cont’d)
 Skills

list advocacy
Country of citizenship or country of last residence

Country of last residence vs. country of last permanent
residence

Proving different skills list category

Effect of new country of citizenship

“Impossibility” of fulfillment argument
Klasko, Rulon, Stock & Seltzer, LLP
Avoiding Need for J-1 Waiver
(cont’d)
 Government
financing advocacy
Must be during J status
 Indirect government financing
 Funds earmarked for exchange program

Klasko, Rulon, Stock & Seltzer, LLP
Avoiding Need for J-1 Waiver
(cont’d)

Medical Doctors
 Not
subject if:
Not medical education or training
 Observation, consultation, teaching or research
with incidental patient care under direct
supervision of U.S. doctor
 ECFMG research fellowship
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Klasko, Rulon, Stock & Seltzer, LLP
Visa Options
Without Needing Waiver

Anything other than H or L visa or change
of status
 O-1,
TN-1, E-3 ok
 Canadian doctor H-1B visa-exempt entry ok?
 Change of status from F-1 (or other) to H-1B ok
 Labor certification and I-140 can be approved
DS230 can be filed
 I-485 cannot be filed (except clinical NIW)

Klasko, Rulon, Stock & Seltzer, LLP
Fulfilling Two-Year
Return Requirement


Return to country of nationality or last residence?
Can fulfill sequentially
Klasko, Rulon, Stock & Seltzer, LLP
J-1 Waiver Options
No objection statement
 Exceptional hardship
 Persecution
 Interested government agency

Klasko, Rulon, Stock & Seltzer, LLP
No Objection Statement
Researchers only
 Usually not helpful if U.S. or international
organization funding
 Quickest and easiest waiver
 Attitudes of different countries

Klasko, Rulon, Stock & Seltzer, LLP
Exceptional Hardship Waiver
Hardship to U.S. citizen or LPR spouse or
child
 Hardship must be “exceptional”
 Very difficult
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Klasko, Rulon, Stock & Seltzer, LLP
Persecution Waiver
Individualized persecution
 Similar to asylum
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Klasko, Rulon, Stock & Seltzer, LLP
Interested Government
Agency Waivers
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General
 Choosing
between research track and clinical
track
 Research
track
Usually through HHS
 Peer review process – unlike CIS filings
 Do not need 3 years in H-1B?
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Klasko, Rulon, Stock & Seltzer, LLP
HHS Waivers
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Key Issues
 Importance
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Does not have to be NIH funded
 Essentiality

of research program
and uniqueness of foreign national
Recruitment (unavailability of U.S. researchers)
 Future
of program and future of foreign national
 Bench research (at least 30 hours per week)
vs. clinical research
 Excellence of foreign national’s research
Klasko, Rulon, Stock & Seltzer, LLP
HHS Waivers
(cont’d)

Other Issues
 Involvement
of NIH scientists familiar with the
research
 Reconsideration of denials
 Impact of Fulbright funding
 Timing
Klasko, Rulon, Stock & Seltzer, LLP
Other Medical Research Waivers
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Usually limited to agency contracts, grants or
research programs
Examples include DOD, NASA, DOE and
DOI
Klasko, Rulon, Stock & Seltzer, LLP
Obtaining a J-1 Waiver

Clinical Track
 Choosing
state vs. federal agency
 Choosing between states
 Cannot file more than one
 HPSA or MUA or FLEX 10 or V.A.
 Must be 3 years in H-1B

“Extraordinary circumstances” to change employers
Klasko, Rulon, Stock & Seltzer, LLP
Obtaining a J-1 Waiver

Timing issues
 Vary
by state
 Vary by federal agency
 3 steps
 When to start
 Options if J-1 expiring
O-1
 J-1 extension?
 Leave U.S.
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Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Conrad 30 Waivers
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Must be HPSA or MUA
 Except

FLEX 10
Agree to begin employment within 90 days of
receiving waiver
 Can
delay if still in training program
 Can expedite by filing H-1B before CIS approves
waiver
Klasko, Rulon, Stock & Seltzer, LLP
Conrad 30 Waivers
(cont’d)
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Differences between states
 Timing
 Recruitment
required
 When/how choose 30?
 Primary care? Speciality? Subspecialty?
 Use of FLEX 10
Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
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Issues in common
 40
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hours in HPSA or MUA
Except VA
 Primary
care
General practice, family practice, internal
medicine, psychiatry, pediatrics, OBGYN
 Except VA and DRA
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Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
(cont’d)
 Recruitment
 Facility
must provide medical care to
Medicaid/Medicare-eligible and indigent
uninsured patients
 No non-compete clauses
Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
(cont’d)
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V.A. Waivers
3
levels of approvals
 National and internal recruitment
 At least 5/8 appointment
 O-1 must wait 2 years
Klasko, Rulon, Stock & Seltzer, LLP
Federal Government
Agency Waivers
(cont’d)
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Appalachian Regional Commission Waivers
 Rural
counties in 13 states
 File with state
Need state concurrence
 Some states will transfer Conrad 30 to A.R.C.
 Some states do not allow specialty training
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 Recruitment
within last 6 months
 Cannot be out of status more than 6 months
 HPSA only
Klasko, Rulon, Stock & Seltzer, LLP
Delta Regional Authority Waivers
Part of 8 states
 HPSA or MUA
 No limitation to primary care
 Specialty training allowed
 Recruitment for 60 days, including national
 Site surveys every 6 months
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Klasko, Rulon, Stock & Seltzer, LLP
HHS Waivers
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HPSA of 7 or higher
Need state DOH support letter
Must file within 12 months of completion of
primary care residency
Limited to rural health clinics, certain native
American facilities and HRSA-grant health centers
Very long process – not user friendly
Klasko, Rulon, Stock & Seltzer, LLP
Questions?
Klasko, Rulon, Stock & Seltzer, LLP
For Further Information
H. Ronald Klasko, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
E-mail:
[email protected]
Telephone:
215-825-8600 (Philadelphia)
212-796-8840 (New York)
Websites:
www.klaskolaw.com
www.worsite-compliance.com
www.eb5immigration.com
Blog:
http://blog.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP