February 28, 2015

When Can Foreign Medical Graduates Apply for the Green Card After J-1 Waiver Approval?

After getting a J-1 waiver application approved (“J-1 waiver”), foreign grad physicians often wonder when to apply for the green card. In most cases, the time to apply depends entirely upon the physician and the sponsoring employer (or relative).

Typically, physicians get permanent residence (green card) through one of the following categories:

  • National interest waiver (NIW) or extraordinary ability (EB—1)
  • PERM labor certification
  • Family sponsorship

All of these green card procedures require two or three applications. The first application establishes the physician’s eligibility for a specific green card category.

For example, the physician applying through the NIW or EB-1 submits an I-140 petition and supporting documents to prove eligibility. For PERM labor certification, the sponsoring employer files an ETA9089 application and I-140 petition to qualify the physician for the green card. And, for a family sponsored green card, the US citizen or permanent resident relative must submit an I-130 petition.

For everyone, including a physician with a J-1 waiver obligation, eligibility applications can be submitted at any time.

The second application required for all green card categories is the I-485 adjustment of status application, which is filed by the physician and each of his family dependents. This process screens the applicant for admissibility issues, such as criminal or immigration violations. The approval of the I-485 application adjusts the physician’s immigration status to permanent residence and grants the green card.

The J-1 waiver physician is in a unique position because of a specific rule that requires completion of the J-1 waiver employment before submitting the I-485 application. Found at 8 CFR Sec. 212.7 (c)(9)(iii), this rule states:

The foreign medical graduate must agree to commence employment for the health care facility specified in the waiver application within 90 days of receipt of the waiver under Pub. L. 103-416. The foreign medical graduate may only fulfill the requisite 3-year employment contract as an H-1B nonimmigrant. A foreign medical graduate who receives a waiver under Pub. L. 103-416 based on a request by a State Department of Public Health (or equivalent), and changes his or her nonimmigrant classification from J-1 to H-1B, may not apply for permanent residence or for any other change of nonimmigrant classification unless he or she has fulfilled the 3-year employment contract with the health care facility and in the specific HHS-designated shortage area named in the waiver application

The government even reminds J-1 waiver physicians of this requirement in the I-612 waiver approval notice, declaring “you must complete your waiver in H-1B status and cannot apply for adjustment of status until you finish your three year contract.”

This timing restraint on the filing of an I-485 application applies even if the physician is married to a U.S. citizen. However, there is one exception to this rule- the NIW physician application. If the physician applies for the green card through the national interest waiver and agrees to work for five years in a healthcare shortage area, he can file the I-485 application along with the I-140 petition at any time (assuming an immigrant visa is available). However, the government will not approve the I-485 application until the physicians works for five years.

So when should J-1 waiver physicians apply for the green card? The physician and employer or family sponsor can and should start the first stage of the process as early as possible card for several reasons, such as obtaining work authorization for H-4 spouses or getting into the green card queue to avoid or reduce waiting times.If you are a J-1 physician who would like a definitive prescription for permanent residence, click here schedule an immigration strategy session.

The information provided in this article is intended to help you understand basic issues involved in the immigration process, 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.