FOR MORE ON J-1 WAIVERS:
sion petition is an admission in the requested nonimmigrant classification, thereby implying that the applicant did not hold that status prior to approval.
The implications of this conundrum for physicians
completing the terms of their Conrad waiver are significant: if the physician provides three years of service in any status other than H-1B, then the conditions imposed on the waiver by 8 CFR §212.7(c)(9)
(iii) have not been met, and, arguably, the physician
again becomes subject to the two-year home residency
requirement. See 8 CFR §245.18(b)(2). If U.S. Citizenship and Immigration Services (USCIS) determines
that entering on advance parole, despite resuming
employment with the waiver employer and completing the three years of service, caused the physician to
violate 8 CFR §212.7(c)(9)(iii), then the I-485 application will be denied and the physician will be ineligible
to adjust until the three years have been completed
pursuant to a new H-1B petition.
On the other hand, the Cronin memo clearly indicates that an individual admitted on advance parole,
who nonetheless maintains a valid underlying H-1B
petition, and has not otherwise violated the terms or
conditions of H-1B employment, is in H-1B status;
otherwise, he or she would be ineligible to extend H-1B
status as permitted by the memo. Furthermore, provided there is a valid H-1B petition in place during the
entire three-year service period, there is a strong argument that the terms and conditions of the J-1 waiver
have been satisfied notwithstanding use of advance parole for entry during the commitment period, particularly in light of the fact that the statute itself does not
require that the physician complete the commitment
in H-1B status. INA §214(l)(2) permits a physician to
change status to H-1B to complete the J-1 waiver commitment, but does not require it. Only the regulation
does that and is, therefore, arguably ultra vires. See 8
for Physicians, 3rd Ed.
Clinical J-1 Waivers for Physicians (Seminar)
Conservative in Absence
of Clear Guidance
Many physicians successfully enter the United
States on advance parole during the three-year J-1
waiver service period without immediately filing an
H-1B petition to formally reinstate H-1B status and
have not experienced any subsequent problems extending H-1B status and/or adjusting status once the
J-1 waiver commitment is completed. Nonetheless,
in the absence of clear guidance, the most conservative approach is to advise a physician who has not yet
completed the three-year commitment to file an H-1B
petition upon returning to the United States using advance parole, and not count any service time done as
a parolee toward the three years. Practitioners should
advise physician clients and their H-1B–sponsoring
employers of the potential consequences of a failure
to file the H-1B petition, however unlikely those consequences are to arise.
Jessica L. Marks is an associate attorney with Wolfsdorf
Immigration Law Group in Santa Monica, CA. Thanks to
the AILA Health Care Professionals/Physicians Committee for contributing to this article. The author's views
do not necessarily represent the views of AILA nor do
they constitute legal advice or representation.
1 Legacy INS, "AFM Update: Revision of March 14, 2000 Dual Intent Memorandum," (May 25, 2000), AILA Doc. No. 00052603.
S EPTEMBER/ O CTOBER 2013