In light of the COVID-19 National Health Emergency, U.S. Citizenship and Immigration Services (USCIS) introduced temporary policies related to H-1B-sponsored physicians who are completing their three-year J-1 waiver service commitment requirements. The temporary policies relate to full-time work requirements and the ability of J-1 waiver-approved physicians to provide telehealth services.
Physicians who complete their graduate medical training in J-1 status are eligible to seek a waiver of the two-year foreign residence requirement by agreeing to work in H-1B status on a full-time basis in a federally designated medically underserved area. Under normal circumstances, a J-1 waiver physician’s failure to work on a full-time basis in the medically underserved community listed in the J-1 waiver application may result in the re-imposition of the two-year foreign residence requirement. The COVID-19 Public Health Emergency, however, has created instances where physicians are temporarily unable to work on a full-time basis due to quarantine, illness, travel restrictions, or other consequences of the pandemic. As such, USCIS will not consider a physician’s failure to work on a full-time basis during the Public Health Emergency to be a failure to fulfill the terms and conditions of the J-1 waiver and will not re-impose the two-year foreign residence requirement as the result of a full-time work violation occurring between January 27, 2020 and the end of the Public Health Emergency. Keep in mind, however, that this temporary policy does not discharge an H-1B employer’s responsibilities under the statutes and regulations relating to H-1B sponsorship and employment. If there is a material change to an H-1B physician’s employment, such as a reduction in hours or salary, the employer may need to file an amended H-1B petition.
The Immigration and Naturalization Act and immigration regulations do not address whether or not J-1 waiver physicians may provide telehealth services to meet their three-year J-1 waiver service commitment. Under this temporary policy, USCIS will interpret current regulations to allow J-1 waiver physicians to provide telehealth services. The policy indicates that medical services must still be provided through the physician’s contracting facility, except for physicians employed by the Veterans Administration, who are eligible to provide telehealth services to patients outside of the state of their contracting facility. While somewhat ambiguous, this language suggests that J-1 waiver physicians’ contracting facility should remain their home worksite, and telehealth services should be provided through the contracting facility, rather than a third party. The telehealth services policy will be effective from May 11, 2020 through the end of the COVID-19 National Health Emergency.
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