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Congress Considers Beneficial Changes to J-1 Physicians Program

November 2004
Congress Considers Beneficial Changes to J-1 Physicians Program

In mid-October, the House of Representatives (H.R.4453) and the Senate Judiciary Committee (S. 2302) have passed legislation which would substantially benefit foreign-born physicians seeking J waivers.

The legislation is known as the Access to Rural Physicians Improvement Act of 2004 (H.R. 4453 and S.2302). Essentially, all foreign-trained physicians who come to the United States in J-1 status to engage in required residency training are subject to a two-year home return requirement. They can, with the support of an interested government agency, eliminate the home residency requirement by committing to practice medicine for three years in a designated U.S. medical shortage area (HPSA or MUA). The state program is known as the Conrad 30 program and is limited to 30 positions per participating state.

Among the significant provisions contained in the legislation are the following:

� The Conrad State 30 Program will be extended for another two years.

� Physicians who receive J waivers through Interested Government Agencies (IGA) waivers will be explicitly exempted from the H-1B numerical cap.

� Federal, as well as state, agencies may sponsor physicians who are specialists as well as primary care doctors.

� Conrad 30 Programs may sponsor a maximum of five physicians who do not practice in HPSAs/MUAs if they serve patients who reside in MPSAs/MUAs. Federal Programs may also sponsor physicians who do not practice in HPSAs/MUAs if they serve patients who reside in MPSAs/MUAs.

Also, one of the highlights of the proposed legislation is that it states that a physician seeking an H1B after approval of this type of J1 waiver is exempt from the H1B cap. Unfortunately, as of today, the bill has yet to be voted upon by the Senate. The proposed legislation will not be made law until and unless it passes both the House and the Senate and is signed by the President. We will keep Khabar readers updated as new information becomes available.

Visa Lottery Instructions for Fiscal Year 2006 Announced by State Department

Once again, the State Department's DV-2006 Visa Lottery will be conducted online. Natives of all countries except the following may apply for inclusion in DV-2006 Lottery: Canada; China - mainland China (nationals of Hong Kong, Macau and Taiwan ARE included); Colombia; Dominican Republic; El Salvador; Haiti; India; Jamaica; Mexico; Pakistan; Philippines; Russia; South Korea; United Kingdom (natives of Northern Ireland and Hong Kong are eligible, but natives of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and the Turks and Calicos Islands are not eligible); and Vietnam.

Applications must be received between November 5, 2004 (noon, ET) and January 7, 2005 (noon, ET).

H1-B Cap Met Exhausted as of October 1, 2004

USCIS announced on the evening of Friday, October 1, 2004 that the H1B cap has been reached for fiscal year (FY) 2005. The USCIS factored into its count of petitions subject to the FY2005 cap the number of Chile / Singapore set-asides that were unused in FY2004. For those who are subject to the H1B cap, new H1B petitions may be resubmitted no earlier than April 1, 2005, allowing them to start work only on or after October 1, 2005.

Unless authorized to do so in some other capacity, for a person subject to the H1B cap, it is not permissible to simply remain in the U.S. awaiting the opportunity to file an H1B case in April 2005.

The USCIS will continue to process H1B petitions for persons who are filing for H1B extensions, amending the terms of their H1B employment, changing H1B employers, or requesting H1Bs for second employers. Further, not all H1B petitions for first-time H1B seekers are subject to the cap. H1B employees of institutions of higher education or of related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations, as well as J-1 physicians granted Conrad waivers, are not subject to the cap. If an individual is changing from an H1B with an exempt employer to employment with a cap-subject employer, s/he is subject to the cap and will have to wait until the next fiscal year.

New Procedures in Place for I-485 Approvals

US CIS has undergone many beneficial changes in the last few years. Unfortunately, information on old processes continues to be given to the public. For instance, the current I-797 Approval Notice for the I-485 Adjustment of Status case gives incorrect directions for obtaining the I-551 ("Green Card."). Concerns regarding this matter, and the inevitable frustration experienced by those trying to follow the instructions, led the American Immigration Lawyers Association (AILA) to question the USCIS Service Center Operations on September 27, 2004. The USCIS indicated that they will work to have the I-485 Approval Notice instructions changed, but it may take some time.

The current approval notice only indicates that approved persons should go to the local USCIS office and take two ADIT-style photographs, in the format previously required. The proper procedure, however, is to set up an InfoPass appointment online using the USCIS Internet appointment system at a specific USCIS local office and to bring photographs under the recently-revised photo specifications, in order to obtain the I-551 stamp. The new photo specifications, as detailed in previous issues of Khabar, require a full frontal face photograph, rather than the three quarter profile accepted in the past.

Those who have been granted an I-485 approval notice should disregard the instructions on the approval notice and schedule an appointment through InfoPass at the local USCIS office. Further, the photos in the new format should be taken to the scheduled appointment for the I-551 stamp. By doing so, such persons will usually be able to get a temporary I-551 stamp in the passport as proof of status until the physical green card is received in the mail approximately 2 months to 12 months later.

DOS Expects Cut-off Dates in Third Preference Employment-Based Immigration as Early as January 2005

During the past two years, the visa allocation system compensated for the reduction in CIS visa number demand by making very rapid advances in the visa cut-off dates. As the cut-off dates advanced, tens of thousands of applicants became eligible to file for adjustment of status at CIS offices. Heavy demand was expected as CIS began to address their backlog and finalize action on such cases. The Visa Office has been alerting interested parties to this possibility over the past two years, and this is exactly what has recently begun to happen.

FAMILY: As CIS demand for visa numbers continues to increase, little if any forward movement of cut-off dates is expected during FY-2005, and the potential for retrogressions in certain categories cannot be ruled out. While retrogression of certain Family cut-off dates is not likely in the immediate future, it cannot be ruled out late in the fiscal year. This is because the CIS backlog is likely to include large numbers of applicants in all categories with priority dates well before the current cut-off dates.

EMPLOYMENT: The increasing CIS use of numbers is likely to require the establishment of cut-off dates in one or more categories during FY-2005. Such action is expected in the Employment Third preference category as early as January. As a result, those who are eligible to file immediately should do so without delay, to avoid being caught unaware by the cut-off dates.

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