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The U.S. Supreme Court recently dodged an immigration issue that could have implications for the medical community: whether employers are required to cover the fees associated with obtaining a J-1 waiver.

In a nutshell, J-1 waivers allow foreign physicians on J-1 visas who complete their medical residencies in the U.S. to start working without first having to return to their home countries for two years. In return for that immediate work opportunity on an H-1B highly skilled guestworker visa, the physician has to agree to practice for three years in a medically underserved area.

Employers are, and have been, required to pay all the expenses associated with obtaining H-1B visas, including attorneys’ fees. But it was generally agreed that the separate J-1 waiver fees were the foreign physician’s responsibility, not that of the future employer.

Then came Kutty v. DOL, an August 2014 decision from the U.S. Court of Appeals for the Sixth Circuit (764 F.3d 540 (6th Cir. 2014)). In that case, a Tennessee clinic owner was held personally liable for $1.1 million in back wages and civil penalties, including, among other things, J-1 waiver fees.

Although the Sixth Circuit didn’t hold that J-1 waiver fees always must be paid by employers, the court said the employer in that case was required to do so, based on the facts.

That sparks the question: In what situations will employers legally be on the hook for J-1 waiver fees? Mohan Kutty had hoped the Supreme Court would provide an answer, but the justices denied certiorari.

Immigration practitioners and organizations, including the American Immigration Lawyers Association, want the answer to be never, or at least rarely. Making employers pay J-1 waiver fees means they get to choose the attorney and remain in control of the process, when it’s the foreign physician whose ability to stay in the U.S. is on the line, they say.

Not only that, but requiring employer payment of the fees could discourage their participation in the J-1 waiver program in the first place. And that would defeat the purpose of the program—getting foreign physicians to work in areas experiencing a shortage of U.S.-born physicians.

Until the issue is more fleshed out, employers in medically underserved areas are just going to have to weigh the risks and benefits and hope the government doesn’t hold their feet to the flames.

In Other News:

  • Sen. Jeff Sessions (R-Ala.) will be heading up Senate Judiciary’s immigration subcommittee in the 114th Congress, renaming the panel the Subcommittee on Immigration and the National Interest “as a declaration to the American people that this subcommittee belongs to them.”

  • U.S. Citizenship and Immigration Services has announced it will start taking applications for the expanded deferred action for childhood arrivals program Feb. 18. The expanded program allows for deportation protection and work authorization for three years instead of two, removes the age cap of 31, and moves up the date by which applicants must have been in the U.S., from June 15, 2007, to Jan. 1, 2010.

  • An administrative law judge with the Justice Department’s Office of the Chief Administrative Hearing Officer held that an employer wasn’t liable for certain I-9 violations where it had offered supporting documents to the Immigration and Customs Enforcement agent conducting the audit, but he refused to take them.

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