Conrad 30 Waivers for Working in Medically Underserved Areas... 3

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1 Table of Contents 1. Opening Remarks The Physician Immigration Handbook... 2 Conrad 30 Waivers for Working in Medically Underserved Areas Instructional Resources Siskind Susser Conrad State 30 Chart Form I-612 Application for Waiver of The Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act Information for Non-MDs Don t Stop at the RN: Why Some Foreign Nurses Should Consider Master s Degree Programs Current Events TPS Expands Options for Syrian Physicians Hot Topics in Consular Processing Moving an H-1B Employee? When Employers Must File an Amended H-1B Petition A Look Ahead at the 2017 Conrad 30 J-1 Waiver Cycle Ask the Experts... 21

2 1. Opening Remarks Dear Readers: While most of the media has covered higher profile issues in immigration this campaign cycle (think large walls), skilled worker visa issues are entering the discussion and mostly in a negative way. Stories about H-1B workers, for example, replacing American workers have been discussed widely and both presidential candidates have expressed concern. There s a high profile bipartisan bill that would impose serious new restrictions on the H-1B visa that probably won t move anywhere this year, but will no doubt be back early in On Capitol Hill, Congress also needs to take up an extension of the Conrad 30 J-1 program which begins to sunset if it is not extended before September 30 th. The program is very popular and I m optimistic it will be extended, but you can never take this for granted so advocacy is needed. Also, there are a number of technical and substantive fixes that are needed for that program and Congress needs to be encouraged to make them. *** This year, I finally finished writing my fifth book, but one that I ve had on my project list for more than ten years. It s The Physician Immigration Handbook ( and it is a plain-english, question and answer formatted book that explains the immigration rules for physicians from their initial entry for training all the way through to becoming citizens. We re including an excerpt from the book in this issue and we hope you find it helpful. *** As always, we invite you to contact us if our firm can be of assistance. Please visit our web page at for information on reaching the firm or scheduling a consultation. Regards, Greg Siskind ***** 2. The Physician Immigration Handbook [The following is adapted from Greg Siskind s new book, The Physician Immigration Handbook]

3 Conrad 30 Waivers for Working in Medically Underserved Areas In 1994, the U.S. Congress enacted legislation permitting state health agencies to sponsor up to 20 physicians each year for J-1 waivers based on their commitment to work in medically underserved communities. In the years since, every state and several U.S. territories have created Conrad J-1 waiver programs. Before 1994, only federal agencies could act as interested government agencies (IGA) in sponsoring J-1 doctors for waivers. Congress has revisited the Conrad program from time to time. It expanded the number of waiver slots granted to each state from 20 to 30. And it now allows states to designate up to 10 waivers per year for locations that are not actually designated as underserved but serve patients coming from underserved areas. Each state can determine its own rules for demonstrating whether underserved patients are being served, which is why these 10 waivers are called flex slots. There are common requirements each state must include in its waiver program. However, there is also considerable room for states to add additional requirements, and the programs vary considerably. This chapter reviews the common requirements and also highlights some of the additional rules imposed by the states. The chapter includes a chart providing information on each state s requirements. What are the common requirements for Conrad 30 state health agency J-1 waivers? There are only a handful of mandated requirements for State 30 programs. Most of the rules each state includes in their programs are decided by the particular state. Section 214(l) of the Immigration and Nationality Act (INA) sets out the requirements for the state programs, and they include only the following: The physician agrees to work for three years in the qualifying location; The physician agrees to begin work within 90 days of the waiver being granted by U.S. Citizenship and Immigration Services (USCIS); The physician agrees to serve in an underserved area or to serve patients residing in underserved areas; The offer is for full-time employment; and If the position is in a specialty, the employer documents the shortage of that type of specialist. The U.S. Department of State requires state health departments to include the following items in a J-1 waiver recommendation request: 1. A completed Form DS-3035, J-1 Visa Waiver Recommendation Application; 2. A letter from the director of the state department of health identifying the international medical graduate by name, country of nationality or country of last permanent residence, date of birth, and also stating that it is in the public interest that a waiver of the two-year home residency requirement be granted;

4 3. An employment contract between the doctor and the health care facility named in the waiver application that includes the following: a. The name and address of the health care facility. b. A statement that the doctor agrees to begin employment with the employer within 90 days of receiving the waiver. c. The specific geographical area or areas where the doctor will practice medicine. d. A statement by the doctor that he or she agrees to meet the requirements set for in INA 214(l). e. A term of at least three years in a designated Health and Human Services (HHS) shortage area or in an area that serves patients residing in a shortage area (a flex slot). f. A full-time schedule (at least 40 hours per week) in the underserved area(s). g. Proof that the location is an HHS-designated shortage area. h. Copies of all Forms IAP-66 or DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status. i. A copy of the doctor s curriculum vitae. j. If the doctor is otherwise contractually obligated to return to the home country, a copy of the statement of no objection from the doctor s country of nationality or last residence. What is an HHS-designated shortage area? The U.S. Department of Health and Human Services Health Resources and Services Administration (HRSA) measures shortages of medical professionals and has created two types of areas that qualify Health Professional Shortage Areas (HPSAs) and Medically Underserved Areas (MUAs). HPSAs are designated for primary care, dental, and mental health providers. In 2015, there were 6,100 designated primary care HPSAs in the United States. There were 4,000 mental health professional shortage areas. Even though the supply of specialists is not measured, J-1 waiver rules use HPSA designation as a threshold requirement for those applications. Some states use the Mental Health Professional Shortage Areas (MHPSA) designation for psychiatrists, though many will consider such doctors even if the area is only designated an HPSA. HPSA designation is granted to a geographic area, population group, or an individual facility. If primary-care designation is granted based on a geographic area, it is because the area has a physician to population ratio of 1:3,500 or worse. A population group with access barriers making it more difficult to find care may result in an area receiving a population group HPSA designation. In those cases, the shortage ratio is lessened to 1:3,000. For mental health areas, geographic designation is based on a ratio of 1:30,000. The threshold is lowered for population group designations to 1:20,000. Individual facilities can receive special HPSA designation. For primary-care designations,

5 such facilities include prisons and jails and public and/or nonprofit medical facilities that provide primary-care services, and are deemed to have insufficient capacity to meet the needs of an area or population group. For mental health, facilities may be specially designated if they are prisons and jails, state and county mental health hospitals meeting specific inpatient and workload requirements, and community mental health centers and other public and nonprofit facilities deemed to have insufficient capacity to meet the psychiatric needs of the area or population group. All federally qualified health centers and rural health clinics that provide access to care regardless of ability to pay receive automatic facility HPSA designation. HPSAs and MHPSAs are scored on a scale of 1 to 25 with the number rising based on the severity of the physician shortage. Some J-1 waiver programs will prioritize locations with higher HPSA scores. MUAs may be whole counties or a group of continuous counties, a group of county or civil divisions, or census tracts in a particular county. Medically Underserved Populations (MUPs) can include people who face economic, cultural, or linguistic barriers to health care. MUAs and MUPs are designated based on the Index of Medical Underservice, a system developed in 1976 that gives a 1 to 100 score to an area or population based on the ratio of primary-care physicians per 1,000 people, the infant mortality rate, the percentage of people with incomes below the poverty line, and the percentage of people age 65 or over. MUAs and MUPs may provide a more accurate reflection of the needs of a particular area or population group, but they also are updated less frequently, so some states prioritize HPSA designations over MUA designations. What are some of the differences between the various state health agency J-1 programs? 1. Timing There are a number of differences between states regarding the timing of the submission and adjudication of waiver applications. The federal fiscal year runs from October 1 to September 30, so each state s allotment of 30 waiver slots starts anew each year on October 1. A few states will allow applications to be submitted before October 1. Texas, for example, has enough demand that the program is completely filled each September 1, when it opens and closes the same day. Some states will take applications on a rolling basis throughout the year. Others will accept applications only for a set period of time at the beginning of the fiscal year in October. And others allow certain types of applications to be filed at different times in the year (usually allowing primary-care positions first and specialists later). Some states also allow certain types of facilities to have the first opportunity to file for a waiver. Safety net sites in South Carolina, for example, can apply first for that state s waivers. There also are differences in when applications are adjudicated. Some states will review and

6 decide applications as they are received. Others hold all applications until a specified period of time and make decisions then. A few states have more than one adjudication period during the fiscal year. Some processing times can vary from just a few weeks to several months. 2. Types of physicians accepted While every state allows primary-care doctors, policies regarding accepting specialists vary considerably. Some states limit the number of specialists accepted. Alaska, for example, will take up to 10 specialists only. Some states will look at specialists on a case-by-case basis and may require additional documentation regarding the need. Some states will consider specialists only later in the fiscal year. A few states Idaho and New Jersey, for example limit their programs to primary-care doctors. States also vary in how they define primary care. In general, family practice, internal medicine, pediatrics, and OB/GYN are considered primary care. Many states will list psychiatry (usually general psychiatry, but sometimes child/adolescent psychiatry). Some states include other fields, such as adolescent medicine, geriatrics, emergency medicine, hospitalists, infectious disease, general surgery, and even neurology and anesthesiology. Some states that accept specialists also limit the types of specialists accepted. As noted above, each state can determine how it meets the federal requirement that there be a shortage of specialists in the location where the physician will be working. Many states simply require the same documentation of recruiting efforts as they do for primary-care doctors and require nothing further. Some states like Arizona and Tennessee, as well as Washington, D.C., either prioritize certain types of specialists or specifically limit specialist waiver slots to doctors in particular specialties. Some states have specific additional requirements to demonstrate a shortage of the particular specialty, including wait times to see a specialist, whether the specialist will accept Medicare and Medicaid, information on the population that will be served by the specialist, information on the particular needs of the community, and information on the number of specialists already in the community. 3. Subspecialty training A few states restrict physicians seeking primary-care slots from having subspecialty training. The logic is that a physician with subspecialty training will eventually provide specialty medicine services instead of primary-care services. 4. Flex slots As noted above, each state has the authority to reserve up to 10 waiver slots per year for employers not located in HHS-designated shortage areas, but who are serving patients coming from those areas. Most, but not all, states use their flex slots. When flex slots were first created, there was a limit of five per state and some states still limit their usage to five per year. Some states have no specific policy on how they award their flex slots and will review each application s on a case-by-case basis. Some states have minimum requirements regarding

7 the percentage of patients that must live in underserved areas. For example, Arkansas requires 30 percent of its patients reside in shortage areas while Illinois requires 51 percent. Some have special Medicare and Medicaid percentage requirements for flex slot applications. Others hold the slots until later in the fiscal year and will use them if their regular slots do not get claimed. Some states will reserve flex slots for particular facilities (such as academic medical centers or facilities in counties without federally qualified health centers). Some states that favor primary-care doctors may reserve flex slots for specialists. Note that obtaining detailed data documenting that patients are coming from underserved areas can be highly time consuming and potentially expensive. Employers and physicians should account for this when planning for the waiver process in states with such requirements. Finally, some states will hold back adjudicating flex waivers until late in the fiscal year if they happen to have waiver slots still available; and they may limit usage only to certain specialties. 5. Types of facilities and locations that may apply for waivers A few states will limit applications to particular types of facilities. For example, some states will accept applications (or prioritize) applications only from rural facilities, safety-net providers, critical-access hospitals, federally qualified health centers, etc. Some states specifically bar applications from certain types of facilities. Arizona, for example, will not consider physicians practicing in long-term care facilities, chronic-care facilities, or rehabilitation facilities. Several states also require a site be approved before an application for a J-1 waiver will be approved. This can sometimes delay the processing of the waiver application. And as noted above, states vary in terms of what types of shortage areas are acceptable. Some accept any HPSA, MHPSA, MUA, or MUP designation. Others are more limiting. 6. Fees State J-1 waiver fees are more common today than in the past. At least 10 states now charge fees ranging from a few hundred dollars to several thousand. 7. Letters Several states require one or more letters from individuals in the community recruiting the physician. Depending on the particular state, these may be letters from: Other physicians in the community attesting to the shortage; Primary-care physicians who intend to refer work to a specialist; County and municipal health officials, Politicians; and Hospital officials.

8 Some states also require recommendation letters on behalf of the physician, attesting to the physician s qualifications. All Conrad 30 applications will include an employer support letter. These letters will normally begin with a request that the state act as an IGA and then state the location or locations that will be served and note the shortage designation or flex waiver request; provide a description of the needs of the facility and the community (particularly for specialists); describe the proposed job duties for the J-1 doctor; list the prior recruiting efforts; discuss the physician s qualifications; and note the impact on the community if the waiver application is not granted. 8. Contract provisions While the core federal requirements mandate a three-year contract, some states add to this requirement by mandating that contracts include special provisions. Some states also bar certain types of contract provisions. For example, several states bar noncompetition clauses that limit the ability of a physician to remain in a community and practice medicine in competition with an employer when the three years of service are completed. Note that unlike the rules applicable to federal programs, states have a choice in whether they bar noncompetition provisions or not. Federal programs must bar noncompetition clauses. Likewise, states may bar other restrictive covenants, such as prohibiting the contacting of the facility s patients if the physician leaves. Some states mandate liquidated damages clauses that require physicians to pay the employer a substantial payment if the physician leaves the community before the threeyear service obligation is satisfied. Generally, the amount decreases as the doctor gets closer to the end of the contract, and the clause may not apply if a doctor moves to another shortage area within the state. An employer might actually have two liquidated damages provisions in an agreement one that it normally would include and the other being the mandated liquidated damages clause required by a state. States also may bar contracts that permit the employer or the doctor to terminate the agreement without cause. 9. Indigent and elderly patients One difference between the rules for Conrad 30 programs and those governing the federal programs is in regard to Medicare and Medicaid. Federal agencies must require J-1 waiver applicants to provide services to Medicare and Medicaid patients. Most states, however, require J-1 doctors to serve these populations and many require employers to more broadly serve indigent populations. States typically require employers to post a sliding-fee scale or charitable-area policy and include a copy of this in the J-1 application. Many states will prioritize applications received by facilities serving these populations.

9 10. Wages J-1 physicians receiving waivers based on serving shortage areas serve out their three-year obligation in H-1B status. One of the requirements for the H-1B visa is that the employer pays the physician the prevailing wage for the particular location (more on this in Chapter 10). A few states require that documentation of the employer s agreement to pay the prevailing wage be included with the J-1 waiver application. And Rhode Island has the additional requirement that the salary not be less than 90 percent of the mean salary for similarly employed physicians. 11. Languages A few states prioritize applications from physicians with specific language skills. Arizona, for example, notes a preference for Spanish skills, and Massachusetts favors doctors who speak the language of patients being served at a particular location. 12. Recruiting Every state requires some evidence of recruiting, but the rules vary considerably regarding what needs to be submitted. Requirements sometimes include providing documentation of the following: A minimum number of months of recruiting (often set at six months); Advertising at the local, state, and national level in print and/or online; U.S. physicians interviewed and the reason the candidate was not hired; Recruiting from in-state or nearby medical schools; Postings at a facility regarding the position opening; Recruiter agreements; Mailings to residents/fellows in the area; Attendance at career fairs; Physician retention plans and needs assessments; and The salary being offered is competitive for the area. 13. Scoring systems At least one state Florida has an elaborate scoring system to prioritize applicants. Criteria that garner points for the application include a high HPSA score, being in a rural county, having strong community input in the application, being a safety-net hospital and having a high percentage of Medicare and Medicaid patients, being fluent in Spanish, and having an annual fixed base salary. 14. States with federal programs A number of states have counties served by the Delta Regional Authority and Appalachian Regional Commission, both federal programs without limits on the number of waivers they issue. In order to maximize the number of waivers that can be granted in the state, some of

10 these waiver programs, such as those in New York and Virginia, require an applicant to choose the federal waiver program for processing and will only accept an application if the applicant will not qualify under the federal program but will qualify under the state s rules. 15. Limits on the number of applications While some states treat every application independently, other states limit how many applications an employer may file in a given period of time or how many applications can be submitted by employers in a particular county. Some states have formal and informal rules allocating a specific number of waivers each year to particular high-priority employers in a state (often a major academic medical center or critical hospital). 16. Credentials and Résumé Most states require physicians to include the following items in their applications: Curriculum vitae; Proof of passage of U.S. Medical Licensing Examination (USMLE) Steps 1, 2 and 3; Documentation that the physician will qualify for a state license; Copy of the medical diploma; Educational Commission on Foreign Medical Graduates (ECFMG) certificate; Graduate medical training certificates (if the program is completed), as well as board certifications (if available); Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status; Copies of the Form I-94, Arrival/Departure Record (either the one stapled in the passport, included on the I-797 approval notice or printed from the U.S. Customs and Border Protection website); Copies of any I-797 Notice of Action approvals; and Copy of the passport. 17. Local ties A few states will favor physicians who received their residency training in the state or who have family in the area. The idea is that such ties make it more likely that the physician will remain in the state when the three-year service obligation is completed. 18. Medical exam One state, Mississippi, has the unusual distinction of requiring J-1 waiver candidates to be tested for Human Immunodeficiency Virus (HIV) and tuberculosis within the six months prior to filing the application. Can a physician self-petition for a Conrad waiver? In theory, the answer is, yes. But it would be a much more difficult process. First, the state may have to be accommodating as far as its recruiting requirements, and the doctor may

11 need to show that other entities have been recruiting unsuccessfully for the particular specialty. If the physician is seeking to work as an independent contractor for another entity, the other entity s recruiting documentation may suffice. Also, the physician would need to create an employing entity in order to be able to sign an employment contract. At the H-1B stage of processing, the physician would be required to document that someone other than the physician has structured the corporate entity that will employ the physician to allow at least some control of the physician s employment. This might be achieved by establishing an outside board of directors for the medical practice. Finally, the H-1B application will require the employer to demonstrate that it has the ability to pay the physician the prevailing wage. In this case, the physician might present an income guarantee agreement from a local hospital or a contract with a provider of medical services to demonstrate that there will be sufficient funding to support the position. Does it matter if a physician s home country funded his or her waiver application? Yes. Physicians who have received funding to support from the home country government to support the physician s medical training or who are contractually obligated to return to the home country may need to seek a letter of no objection from the home country government. Is the H-1B cap an issue in Conrad 30 based waivers? No. Physicians securing J-1 waivers on the basis of a Conrad 30 waiver are exempt from the H-1B cap. Furthermore, upon concluding the physician s three-year service obligation, the physician is in the desirable position of remaining cap-exempt and eligible to work for another employer that is outside a shortage area and otherwise ineligible for H-1B cap exemption. Can more than one waiver be submitted at a time? U.S. Department of State regulations prohibit more than one shortage-area based waiver application from being filed at a time. In the early days of the Conrad 30 waiver program, it was not unheard of for a doctor to file a few applications simultaneously in order to improve the chances that a slot could be secured. That practice has been prohibited for many years. However, it is possible to simultaneously pursue a hardship or persecution waiver at the same time as a shortage-area based waiver. Physician should be extremely cautious about pursuing this strategy. The author is aware of more than one instance where a doctor secured the hardship waiver before the Conrad waiver and was contractually obligated to an employer but could not obtain an H-1B visa because of the lack of H-1B-cap exemption. Is a state license required to obtain a Conrad 30 based waiver? No. A license is not required at the J-1 waiver application stage of processing, though most states will want to see that a physician is at least eligible for a license. A physician will want to begin the license application process as early as possible, however. That is because at the H-1B stage of processing, the physician will have to demonstrate that the license is in

12 hand or at least filed, and the physician can get a letter from the licensing authority indicating that the license will be awarded upon visa issuance. Which states typically run out of waiver numbers? In fiscal year 2014, 17 states exhausted their waivers. The states that typically are most competitive for waiver slots in a typical year are: Arizona, California, Florida, Illinois, Kentucky, Massachusetts, Michigan, Missouri, Pennsylvania, and Texas. ***** 3. Instructional Resources Siskind Susser Conrad State 30 Chart Form I-612 Application for Waiver of The Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act ***** 4. Information for Non-MDs Don t Stop at the RN: Why Some Foreign Nurses Should Consider Master s Degree Programs By Elissa Taub As an immigration attorney for healthcare professionals, one of the hardest phone calls I get is from RNs who would like a US employer to sponsor them for H-1B status in the US. They quickly learn that US immigration policy largely excludes RNs from the H-1B classification. For this reason, some nurses are well-advised to go back to nursing school to become an Advanced Practice Registered Nurse (APRN) to better their chances of qualifying for H-1B status. USCIS policy regarding H-1Bs for RNs is very clear: Registered nurses generally do not qualify for H-1B classification. This is because most RN positions do not normally require a US bachelor s or higher degree. USCIS Policy Memorandum, PM , Adjudication of H-1B Petitions for Nursing Occupations (Feb. 18, 2015). Because of this USCIS policy, even RNs who possess a bachelor s degree are not necessarily qualified for an H-1B because USCIS does not believe that most RN positions require a bachelor s degree as a minimum qualification.

13 In contrast, in the same policy memorandum cited above, USCIS agrees that most APRNs will qualify for H-1B status, because APRN positions typically require a bachelor s or higher level degree. In fact, many APRN positions require a master s degree as a minimum educational credential. APRN positions that USCIS agrees will qualify for H-1B status include, but are not limited to: Certified Nurse Midwife (CNW) Certified Clinical Nurse Specialist (CCNS) Certified Nurse Practitioner (CNP) Certified Registered Nurse Anesthetist (CRNA) While some RNs might benefit from alternative options to the H-1B, those who have no other option could realize at least two benefits from qualifying as an APRN through a USbased master s degree in nursing (MSN) program. First, as mentioned above APRNs have a much greater ability to qualify for H-1B status because USCIS acknowledges those positions are specialty occupations. Second, and potentially just as important, where an individual obtains a US-based master s degree to qualify as an APRN, the individual is much more likely to obtain an H-1B within the annual limit. In each federal fiscal year, the US government limits the number of H-1Bs that may be approved to 65,000. This is known as the H-1B cap. Some H-1B petitions are exempt from the H-1B cap. One of the available exemptions is for individuals who obtained master s or higher level degrees in the US, but it is limited to only 20,000 petitions. This is sometimes called the master s cap, even though it is really a limited cap exemption and not a separate pool of capped visas. Nevertheless, individuals who qualify to apply under the master s cap have a much greater chance of having their petitions selected in years when a lottery is conducted. For all of these reasons, becoming an APRN might have significant H-1B benefits for some nurses. For those individuals who need H-1B status to continue working in the US, continuing their education to obtain a master s degree is a great option. ***** 5. Current Events TPS Expands Options for Syrian Physicians By Greg Siskind Despite the civil war that the world has watched with horror, Syrian physicians are still completing medical school and seeking residency positions in the United States. ECFMG reported in its latest report that 133 Syrian physician received certification from the agency to pursue graduate medical education in the US. That s roughly the same number as in the years just before the civil war.

14 Syrian physicians who were in the US on or before August 1st, 2016 may be eligible for an immigration benefit called Temporary Protected Status. Information on applying for TPS can be found at TPS allows an individual to remain in the US and be protected from deportation. It also allows recipients to get an employment authorization document, something that can be very beneficial for a physician in graduate medical training. Physicians who procure TPS who are on J-1 visas don t get out of the home residency requirement because they have TPS. However, a doctor could delay working in an underserved area or begin work in an underserved area before the J-1 waiver and H-1B visa approval is completed. Note that it is possible to simultaneously have a non-immigrant visa and TPS and if the J-1 doctor gets a waiver, a doctor with TPS can still get to permanent residency. However, USCIS has not opined on the question of whether a physician with TPS would get credit toward completing the J-1 waiver requirements. Physicians training on an H-1B might find TPS especially helpful. A key challenge for these doctors is dealing with the H-1B cap if they are seeking jobs with employers not exempt from the H-1B cap. A physician on TPS could potentially skip the H-1B process and work with the TPS work card and then seek permanent residency. The deadline to file a TPS application is January 30, *** Hot Topics in Consular Processing By Adam Cohen and Elissa Taub Worldwide, U.S. Embassies and consular posts process millions of visas for individuals to visit, work and live in the U.S. each year. Currently, there are several consular posts that are either closed or experiencing notable appointment and/or processing delays. India On June 28, 2016, Mission India announced significant delays in obtaining nonimmigrant visa interview appointments at consular posts across India. The wait times for nonimmigrant visa appointments (excluding B, F and J visas) initially ranged from 75 days, on the low end, to over 100 days on the high end. As the summer has progressed, the appointment wait times have increased even further, with wait times in Chennai exceeding 120 days. Individuals needing to book visa interview appointments in India are advised to do so as far in advance as possible or to seek alternative locations for visa processing. Yemen The consular section of the U.S. Embassy in Sana a, Yemen currently is closed. There are alternative processing locations available for Yemeni nationals seeking immigrant and nonimmigrant visas to enter the U.S. Yemeni nationals seeking to consular process an immigrant visa (green card) abroad will be able to process at the U.S. Embassy in Djibouti. Previously, this processing was to occur in Algeria, but because the Government of Algeria requires all Yemeni nationals to have a visa to enter the country, that plan changed as of April 28, 2016.

15 The U.S. Embassy in Djibouti no longer requires applicants to be physically present in the country prior to transferring their case to that location. Interviews are being scheduled in Djibouti in the order of the date the case became qualified and eligible for scheduling. Officially, nonimmigrant visa applicants from Yemen may apply in a location that is convenient to them. For ease of processing, the Department of State has designated the U.S. Embassy in Cairo, Egypt to process visas for Yemeni citizens. Yemeni citizens also might be able to process visa applications smoothly in Kuala Lumpur, Malaysia. Venezuela Currently the U.S. Embassy in Caracas, Venezuela is not able to provide new appointments for first time business or tourist visa applicants due to Venezuela s refusal to issue visas to consular section staff. A limited number of appointments are available to renew or apply for first-time visas in any of the petition-based, student or investor visa categories (i.e., E, F, J, M, H, I, L, O, P, Q, R, T, U). Wait times for those types of visa interview appointments might be longer than the typical 7 days. Immigrant visa processing in Venezuela is unaffected by this issue. Given the delays and other administrative issues at both the above-mentioned U.S. Embassies and consular posts, as well as temporary disruptions that arise from time to time, there are at least two additional ways to avoid processing visa renewals in those locations. Renewing Your Visa in Mexico Third Country Nationals (TCNs), citizens of a country other than Mexico who apply for a non-immigrant visa with their Non-Mexican passport, may apply for a visa at the U.S. Embassy in Mexico City or the U.S. Consulates in Ciudad Juarez, Guadalajara, Hermosillo, Matamoros, Monterrey, Nogales, Nuevo Laredo, or Tijuana. In order to do so, they must be residing in the United States and must apply to renew in the same visa category they currently possess. Note that those renewing B-1/B-2 and H-2 visas are not eligible. This is great news for many seeking to avoid consular delays in their home country, as well as a long trip home. Having a U.S. Embassy with a helpful TCN process is only one part of the equation. The relevant question is then "How do I travel to Mexico to access the U.S. Embassy or Consulates there?" Here, too, there is great news. Nationals of several different countries can travel to Mexico in a visitor status without the need to apply for a Mexican visa. These countries include many in the Americas (including Venezuela) and Europe, as well as Australia and New Zealand. There is a noticeable lack of several Middle Eastern (including Yemen), African, and Southeast Asian countries (including India and China) on this list. However, even for those nationals who are not on the Mexican visa waiver list, there is still a way to avoid applying for a Mexican travel visa, if the individuals can present a valid and current United States visa stamped on their passport.

16 Foreign nationals who are on the visa waiver list or who possess the valid U.S. visa, may obtain a visitor "visitante" permit and can travel to Mexico for tourism or non-paid activities and stay up to 180 days. The permit is issued when the traveler arrives in Mexico by completing a Forma Migratoria Multiple (FMM). This form is issued by airlines and is also available at ports of entry. The travelers must provide to the Mexican immigration authorities their passport (or identity document), proof of valid travel, and a completed FMM. The immigration authorities may also require proof of the purpose of the individual's travel, such as the following documents: a) hotel reservations, tickets for the return flight, tour tickets. b) letter from the foreign employer, indicating that the individual is an employee and that the payment for the services the employee will provide in Mexico will come from the foreign employer. c) copies of contracts regarding transfer of technology, patents, trademarks, machinery, equipment, knowledge (such as technical training of staff), etc., showing a connection between a foreign party and a company established in Mexico. d) letter from a public or private organization or institution that invites the individual to participate in an unpaid activity in Mexico. The letter should explain the purpose of the visit and estimate the duration of stay. e) letter of invitation or acceptance by an institution belonging to the Mexican National Education System for the individual to undertake courses, studies, or projects for a maximum period 180 days. For those who do not qualify for the visitor permit, the travel visa could be a good option. Anecdotally, it appears that in many cases it does not take very long to process a Mexican travel visa. Interview Waiver "Drop-box" (India) In March 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP). Under this program, repeat travelers to the U.S. may, under certain circumstances, renew their visas without appearing at the U.S. Embassy for an interview. To be eligible, the visa applicant must be able to answer "yes" to all of the following statements: 1. I have a previous U.S. visa in the same class as the visa for which I wish to apply. For example, the applicant has a prior H-1B visa and wishes to renew the H-1B visa. 2. My most recent visa was issued in India. 3. I received my visa after January 1, 2008 (there is another set of rules for those who received the relevant visa after August 1, 2004 but before January 2, 2008).

17 4. My prior visa is not annotated "Clearance Received" or "Department Authorization." 5. My most recent visa (in the same class for which I am applying) was issued on or after my 14th birthday (there is another set of rules for children under 14 years of age). 6. I have no refusals for a visa in any class after my most recent visa issuance. 7. If I am applying for an H or L (individual, since Blanket L-1 visa applicants do not qualify) or R visa, my prior visa in the same class is still valid or expired within the last 12 months. OR If I am applying for any other class of visa, my prior visa in the same class is still valid or expired within the last 48 months. Additionally, if I am applying for an F visa, I am continuing as a student at the same school for which my previous visa was issued. If I am applying for a J visa, my current DS-2019 is issued by the same institution as the institution listed on my previous visa. At the time the visa applicant electronically completes the DS-160 form and registers for the standard account to schedule the visa interview, there will be an option to instead schedule an appointment at a Visa Application Center in India for biometric (fingerprint) processing. The applicant will also receive a "drop-box" submission letter containing a checklist of required documents, including the applicant's current passport, most recent visa, one copy of the "drop-box" letter, one passport photograph, and supporting documentation relevant to the visa type. The applicant will drop off this packet of documentation at one of 11 service centers in India (known as Team Stanley Offices). The Team Stanley employee will review the document checklist before accepting the application for delivery to the U.S. Embassy. If the application is approved, the applicant's visa and passport will be available for pickup at the Document Collection Center specified by the applicant. There are many designated Collection Centers in India. In conclusion, the above options are just two of many, which may prove helpful to avoid processing visas where there are delays and other administrative issues. This article is not exhaustive of all alternative options, which may be discussed with a competent immigration attorney. Please note that this article also is not addressing or encouraging forum shopping where a particular Embassy is not approving an applicant's visa. Additionally, this article is not addressing administrative processing where visa approval and delivery is delayed for often unknown purposes related to security clearances. A visa applicant can become subject to additional administrative processing at any U.S. Embassy or Consulate worldwide. In future issues of Healthcare Immigration News, we will provide more information about TCN processing in other countries and additional options to avoid delays. ***

18 Moving an H-1B Employee? When Employers Must File an Amended H-1B Petition By James Hollis As becomes clear quite quickly to anyone seeking to obtain H-1B status for an employee, the H-1B is tied closely to a specific work location. The reason for this is that the regulatory framework enacting the H-1B provides that employers must file a Labor Condition Application (LCA) for the work location of an H-1B before that H-1B can be approved by USCIS. In the LCA, the employer must specify the work location because, among other things, that work location determines the data used for the prevailing wage. The prevailing wage forms the regulatory ground floor of the possible salary of the H-1B employee. So, what happens when an H-1B employee is moved to a different work location than was listed in the LCA and in the petition to USCIS? The H-1B regulations provide that the employer must file an amended or new petition when there is a material change to the terms and conditions of employment or the employee s eligibility for the H-1B. The question is, when does a change in work location constitute a material change that requires filing a new LCA and an amended petition with USCIS? The answer is when the move of work location takes the employee outside the scope of the geographical area covered by the LCA. In that circumstance, the employer must file a new LCA and file an amended petition to notify USCIS of the change. The H-1B employee may immediately begin working at the new location as soon as the amended petition is filed with USCIS. The area of employment for purposes of the LCA is the Bureau of Labor Statistics area code. These codes are generally grouped according to metropolitan statistical areas. For example, the fourteen counties comprising the Nashville, TN metropolitan statistical area all have the same BLS area code of This means that if an H-1B worker was moved within those fourteen counties, no amended petition would be required to be filed. However, upon such a move, the employer would be required to post the previously obtained LCA in the new work location. There are two exceptions to the above rule. One is for short-term placements of employees. As a result of this exception, an employer does not have to file an amended petition if the employee only remains at the new work location for 30 days or less. In cases where the employee is still based at the work location listed on the LCA and in the original petition, the employee can work for up to 60 days at the temporary work location. The second exception is for locations that USCIS considers non-worksites such as where the H-1B employee is doing temporary professional development, like conferences or staff seminars. USCIS also considers locations non-worksites when an H-1B employee doesn t spend much time at any one location or when the H-1B employee s job is primarily based at one location but involves occasional travel to other sites. Regulations dictate that, to count as non-worksites, these short periods of work cannot exceed five consecutive workdays for any one visit by an H-1B employee or ten consecutive workdays for an H-1B worker employed most of the time at a single location (but with occasional travel to other locations).

19 *** A Look Ahead at the 2017 Conrad 30 J-1 Waiver Cycle By Zack Johnson With summer transitioning into fall, we look ahead to the start of the new Federal fiscal year and the opening of the 2017 Conrad 30 J-1 waiver season. If you are in the US in J-1 status for graduate medical training and are approaching the end of your program, it is crucial that you become aware of the timeframes the various states have in place for accepting and reviewing applications. Doing so could determine the difference between getting to work in the state of your choosing and winding up in one farther down the list. Applications for the 2017 Conrad 30 J-1 waiver cycle will be accepted for processing in most states starting October 3 rd, the first business day following the October 1 st start to the Federal fiscal year. There are exceptions to this, however, and they go in both directions. Several states are accepting applications right now. In many cases, these are states that do not customarily use all 30 of the waiver recommendations Congress authorizes them to issue each year. A few of these states have it built in to their policies that they will accept applications year-round on a rolling basis (e.g., Alaska and Colorado), while several other states (including Arkansas, Delaware, Hawaii, Kansas, Montana, Oregon, Tennessee, and Wisconsin, among many others) continue accepting applications through the end of the year as a result of the fact that they rarely use up all their slots. In other cases, the states that start accepting applications in September are states that do fill up but which have elected, for one reason or another, to start processing applications prior to the start of the upcoming Federal fiscal year. This includes states such as Texas, Iowa, Indiana, Michigan, Minnesota, New Mexico, and Virginia, which all exist to varying extents on the more competitive side of the J-1 waiver spectrum. In contrast, we have Ohio. In each of the last few years, the state of Ohio s J-1 waiver program has started processing applications in January. Beyond the matter of when each state allows applicants to begin to send in their packets, it is also important to note the different ways in which states process the applications they receive. Many states process applications on a first come, first served basis. These states will continue accepting applications until they have 30 that meet their requirements to be recommended for approval. In contrast, certain other states establish specific timeframes during which applications will be accepted; the applications received during these periods are assessed against the state s criteria and priorities, and 30 are chosen from the pool to be recommended for approval. Some of these states routinely receive in excess of 30 applications in their submission windows and only ever have to accept applications for that one segment of the year, while others do not and must open up additional application periods after the first pool has been processed. Without further ado, let us take a look at the different timeframes that are currently in place for submitting Conrad 30 J-1 waiver applications. We will begin with the states that have specific application submission timeframes:

20 Arizona 10/1 through 11/30; 1/1 through 1/31, if necessary; 2/15 through 6/30, if necessary (In recent years, Arizona has used all three application acceptance periods.) Illinois 10/1 through 10/31; 1/1 through 1/31, if necessary; 4/1 through 4/30, if necessary (In recent years, Illinois has filled up in October and has not used either of the subsequent acceptance periods.) Iowa 9/6 through 10/28 (Iowa will continue to accept applications beyond 10/28 if fewer than 30 approvable applications are received.) Kentucky 10/1 through 10/31 Michigan 9/1 through 11/1 Minnesota 9/15 through 11/30 New York 10/1 through 11/30 Any state not listed above currently operates its J-1 waiver program on a first come, first served basis. That does not tell the whole story, however, as the level of competition for waiver slots varies significantly by state. When it comes to the following states that accept and process J-1 waiver applications on a first come, first served basis, it pays to apply as early as possible: California Connecticut (likely to fill upon opening on 10/3) Florida (likely to fill upon opening on 10/3) Indiana Maine Maryland Massachusetts Missouri South Carolina Texas (likely to fill upon opening on 9/1) West Virginia