The majority of foreign medical graduates who engage in residency or fellowship training in the United States choose to subsequently work in a medically underserved area for three years (“Clinical Waiver”) in order to waive their obligation to return to their home country for two years. This long-term commitment does not work for every physician. Fortunately, there are several other J-1 Waiver pathways that offer more flexibility.
Hardship Waiver
A number of physicians are unable to commit to working in a medically underserved area for three years because of their family circumstances. However, for physicians married to U.S. citizens or lawful permanent residents, or parents of U.S. citizens or lawful permanent residents, these very family obligations may offer a basis for a waiver of the two-year return home requirement.
In order to obtain a waiver under this pathway, the physician must prove that their qualifying family member would face exceptional hardship if they were forced to relocate to the physician’s home country for two years or were separated from the physician for two years.
No one circumstance alone will result in a waiver, instead the Department of State will look at all of the circumstances such as psychological effect, financial hardship, conditions in the physician’s home country, and the qualifying relative’s medical conditions. Consider whether your qualifying relative can financially support themselves without you, care for their basic needs without you, or live lawfully in your home country.
Persecution Waiver
Other physicians are unable to commit to working in a medically underserved area for three years, but do not have a qualifying spouse or child who is a U.S. citizen or lawful permanent residence. However, for physicians who would face persecution if required to return to their home country for two years, these country conditions may offer a basis for a waiver of the two-year return home requirement.
This pathway resembles an application for asylum but has a more restrictive definition of persecution. The physician must prove that they would experience persecution on account of race, religion, or political opinion. Just like asylum, the physician must also prove that their persecutor is a part of the government, or someone that the government is unwilling or unable to control.
While a physician may want to apply for the persecution waiver because they would experience financial hardship by returning to their home country, this is not a sufficient basis for a persecution waiver.
Impossibility Waiver
For physicians who cannot prove that they would be persecuted on account of their race, religion, or political opinion, but would be unable to practice medicine in their home country for two years, adverse country conditions may still offer a basis for a waiver of the two-year return home requirement. This pathway is ideal for physicians whose home country no longer exists or prohibits similarly situated individuals from legally practicing medicine.
Other Immigration Consequences to Consider
These pathways offer physicians a way to continue living and working in the United States without having to return to their home country or commit to working in a medically underserved area for three years. However, these waivers have other unique limitations.
Physicians who obtain a waiver of the two-year return home requirement are statutorily ineligible to change their immigration status in the United States. This means that after a physician has completed their residency and fellowship training, they would have to exit and re-enter the United States in a new temporary immigration status.
Because of the new $100,000 fee applied to H-1B petitions that are processed through an embassy or consulate, this inability to change status in the United States could cause a major obstacle for physicians hoping to continue living and working in the United States after their residency or fellowship training.
However, unlike a Clinical Waiver, a physician who pursues a waiver of their two-year return home requirement under one of these other pathways is not limited to working on an H-1B visa. Instead, a physician may be eligible to work and live in the United States on a TN or O-1 visa. Additionally, a physician working in a medically underserved area or with vulnerable populations may be able to obtain an exception from the $100,000 fee.
Regardless of the exact waiver that you intend to pursue, it is important to start the application process for any of these more flexible options at least 18 months before completing your residency or fellowship program. These waivers are prone to extended processing times that can vary dramatically.
Given the level of evidence required and potential future immigration consequences specific to obtaining a waiver through these more flexible options, it is important to obtain legal advice from a qualified immigration attorney who can analyze your specific situation. With years of helping physicians live and work in the United States, the Immigration Law team is happy to walk you through all the pathways for a waiver of the two-year return home requirement. Please see the contact information below and reach out today for assistance.
Michael Murray is a shareholder and Chair of the Immigration Law group who advises employers on health care and business immigration strategy, including visa planning, compliance frameworks, and workforce planning to support recruitment, retention, and long-term stability. He can be reached at [email protected].
Olivia Shaw is an associate in the Immigration Law group who advises employers on obtaining temporary work authorization and permanent residence for their employees, with particular experience in health care immigration and business immigration strategies. She can be reached at [email protected].
Bernstein Shur’s Immigration Law practice group helps employers navigate an increasingly complex immigration landscape through proactive, compliant strategies that support recruitment, retention, and long-term workforce planning. The group advises businesses across industries—particularly in health care and highly regulated sectors—on matters ranging from temporary work visas and employment-based green cards to I-9 compliance and audit preparedness.