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J-1 Waiver Transfer Extenuating Circumstances, Employer Pays Less Than Contract Salary/Prevailing Wage

September 8, 2010 - AAO: J-1 Waiver physicians may apply for a J-1 waiver transfer of their H-1B visas if the employer pays less than the contract salary or prevailing wage. This case is an appeal on behalf of a J-1 waiver physician who held an H-1B visa while completing his J-1 visa waiver service with his first employer in a medically underserved area (HPSA). After starting his employment, his employer reduced his salary to an amount which was below the salary in the contract and the prevailing wage submitted on the ETA 9035. The physician then applied to transfer his H-1B visa to another employer on the basis that the previous employer was neither living up to the contract salary or prevailing wage. The application was initially rejected by the USCIS on the basis that the physician was not able to show the required extenuating circumstances for a J-1 waiver transfer. An appeal of that decision was then filed.

On appeal, the AAO overturned the USCIS decision and granted the J-1 Waiver/H-1B visa transfer. In reaching that decision, the AAO ruled that extenuating circumstances exist which justify an H-1B/J-1 waiver transfer where a physician is paid a salary that is lower than that specified in the contract or the ETA 9035's prevailing wage requirement. Based on the decision, physicians who are being underpaid are able to meet the extenuating circumstances requirement necessary for a physician J-1 visa waiver transfer.

pdf [Read Prevailing Wage Extenuating Circumstances Decision]