Extenuating Circumstances/Undue Hardship Approved for J-1 Visa Waiver Transfers for HPSA Doctors (FMGs/IMGs)

I frequently get questions from J-1 waiver physicians who need to transfer from one medically underserved facility to another. Most of the questions revolve around what qualifies as "extenuating circumstances" or "undue hardship" under the USCIS’ definition. The USCIS does not give specific parameters or instances with respect to what qualifies. From my experience however, both the personal circumstances and work situations of the physician might cause extenuating circumstances or undue hardships that qualify. For example, a transfer that would permit a physician to be closer to his/her family might qualify as well as a situation where the present waiver employer is underpaying a physician. One reason might qualify as an "extenuating circumstance" and the other because it creates "undue hardship" for the physician.

Here are some recent examples of situations that we have handled that USCIS found to the be sufficient to prove extenuating circumstances or undue hardship, permitting a transfer. Note however, that each USCIS examiner may differ in his/her assessment of each situation and may reach different conclusions from the others.

Colorectal & General Surgeon J-1 Waiver Transfer From Oregon to Illinois

This J-1 visa waiver transfer was qualified because the physician demonstrated that he was not paid the contract salary; required to perform procedures that he was not trained or skilled in; and required to work with inadequate staff and in an unsafe conditions. Evidence submitted include the prevailing wage determination, pay stubs, and physician’s statement.

Internist Transfer From Illinois to Louisiana

This internist had signed and was working in Illinois making calls to patient’s homes, frequently alone. During the house visits, some of the patients showed signs of possible hostility, foul language and misconduct. The physician, fearing for her safety, asked us to prepare a waiver transfer to another state. The J-1 waiver transfer was approved under the circumstances and both the physician and her husband (also a physician) transferred successfully and are presently completing the 5-year NIW service. In this waiver transfer application, we argued that the situation created undue hardship for the physician. Evidence submitted include the physicians’s statement describing the situation and her experiences.

Pediatrician J-1 Waiver Transfer From One Facility to Another in Michigan

This pediatrician’s transfer application was relatively straightforward. She had been hired by a hospital who terminated her position and closed the clinic within weeks after her start date. The waiver was approved on the basis that the termination of her employment constituted extenuating circumstances beyond her control. Generally, the USCIS views facility closures and physician terminations to be extenuating circumstances so long as the termination did not result from a situation within the physician’s control. We have processed several similar applications that involve terminations and facility closures. Evidence submitted included the physician’s statements as well as the termination notice.

Internal Medicine Hospitalist J-1 Waiver Transfer from Colorado to Vermont

We successfully obtained a J-1 waiver transfer for this physician couple based on personal circumstances (undue hardship) on the basis that the new couple seeking to start a family would suffer undue hardship if the physician husband was not permitted to transfer his J-1 waiver to a location near his wife’s residency program in New York.

This Hospitalist was employed in Colorado. While there, his wife was accepted into a residency program in New York. To see his spouse, he had to travel almost an entire day and could only do so a maximum of 5 days per month. We argued that this resulted in undue hardship, especially for this young couple planning to start a family. Evidence submitted were physician’s statement, evidence of spouse’s residency program and duration and evidence of costs and details of travel.

Pediatrician J-1 Waiver Transfer from Pennsylvania to Florida

This J-1 waiver transfer qualified because the physician was terminated by a previous employer. The USCIS denied the initial application that had been submitted by another lawfirm on the basis that the physician was terminated "for cause." The employer claimed that the physician failed to properly document her cases cases. Upon receipt of the denial notice, the physician’s original lawyer advised her to hire a law firm with expertise in the area of physician and J-1 waiver immigration.

Our law firm was then retained to rectify the situation. We first appealed the original denial. Simultaneously, we resubmitted the application with evidence that the employer’s reason is not credible because it previously changed the reasons for terminating the physician; had previously asked the physician to resign and only indicated problems with the physician’s worker after the physician refused to resign. We also submitted proof from co-workers that the physician completed her work appropriately and competently.

Finally, we argued that the employer had previously violated the terms and conditions of the contract prior to claiming that the physician was not performing well. After reviewing the revised application, the USCIS approved the transfer. As backup, we also applied for a national interest waiver (NIW 5 year service) petition which does not require proof of extenuating circumstances for a transfer. The NIW is pending and we obtained a work authorization for the physician and advance parole for the physician and her dependent. This single parent physician was quite relieved with the positive outcomes on the H-1B transfer as well as the NIW petition.

These represent a sampling of some situations that the USCIS recently approved as qualifying for waiver transfers. It is noteworthy that many more reasons have also qualified. Furthermore, the decision on each case rests with the specific examiner assigned to each application which may vary depending on the specific examiner.