Canadian Loophole for H-1B (Without a J-1 Waiver)

You should all be aware right now that the general rule for physicians on a J-1 Visa for medical school or Residency/Fellowship is that they must follow the 2 year home residence rule or get a waiver (i.e. Conrad 30, HHS, etc.) . If you didn’t know this, please review a couple videos here or a written article outlining this process.

However, due to a technicality in the way that immigration laws are written, there is a little loophole that Canadians can use (until the loophole is closed) in order to avoid the direct need for a J-1 waiver right now.

In short, a federal judge in New York ruled in 2019 that Canadian physicians who are subject to the J-1 two-year foreign residency requirement may enter the United States in H-1B status, even though they have not spent two years in Canada or received a waiver of the requirement that they do so. The case is Atanackovic v. Duke et al., No. 6:17-cv-06689 in the U.S. District Court for the Western District of New York.

The ruling is important because it confirms what many immigration practitioners already knew – since Canadians may enter the United States without visa stamps in their passports, Canadian physicians who are subject to the two-year foreign residency requirement may seek admission to the United States in H-1B classification with a USCIS I-797 H-1B approval notice. That is because, unlike most other foreign physicians, they do not require an H-1B visa stamp in their passports.

Dr. Atanackovic came to the United States in 2013 in J-1 status to receive medical training. Once he was finished with his training, a hospital sponsored him for H-1B status to work as a physician. The petition was approved by U.S. Citizenship and Immigration Services. When Dr. Atanackovic tried to enter the United States at a Customs and Border Protection (CBP) inspection station near Buffalo, New York, U.S. CBP officers refused his admission because he “did not have the necessary waiver … to be allowed to work” at the hospital, having not fulfilled the two-year foreign residency requirement.

Finding that CBP had abused its discretion when it refused to admit the physician in H-1B status, the judge found that the immigration officers’ refusal to admit the Canadian physician was “arbitrary and capricious, and not in accordance with law.”

A final, important takeaway: Canadian physicians who are subject to the two-year foreign residency requirement and who enter the United States in H-1B status remain subject to the J-1 foreign residency requirement and will eventually need to complete two years in Canada or obtain a waiver if they wish to obtain lawful permanent residence (green card status) in the United States. So, this loophole,at best, is only a temporary fix. If the physician has hopes of obtaining a green card and becoming a permanent resident in the U.S., they will still need a J-1 Waiver.