transfer of site

[jupiturn]

My wife is doing her J-1 waiver, and has completed 1 year on H-1B. There are several differences she has with her employer, and would like to quit. A physician in the my county (which is also a HPSA) has offered to help. He has his own solo practice and is a green card holder.
The WV state J-1 (ARC) contact does not see this as much of a problem, and has forwarded site transfer forms to us. Few questions:
1) What homework do we need to do before making this switch? (We have still not mentioned this to the current employer)
2) Would it be better to be self employed or employed by the physician?
3) The current employer sponsored her for green card by labor cert. I-140 has been filed and is pending. Will that still be valid or will she need a new labor certification and renew the green card processing?
4) Is there a formal J-1 physician grieviance forum, where her grieviences can be reported?
5) What is the obligation for her current employer in this process (They have agreed in principle in the past to release her from her contract with no repurcussions).
I am doing a J-1 waiver myself, and I am going through NIW, I-140 is already filed and pending, and I have completed 2 and half years at my current position.
I will greatly appreciate all of yours input, especially those who have changed employers while doing a j-1 waiver. Thanx!

 

[hadron]

> 1) What homework do we need to do before making this switch?
> (We have still not mentioned this to the current employer)

Get a contract with the new employer. Put a contingency clause in there fixing the start of employment to whatever date you she can legally switch. Look at your current contract, there are four things that might bite you:
- notice period. If it is a reasonable time period (e.g. 90 days), time things in a way that you can give proper notice to her current employer.
- restrictive covenant. Not allowed in most Conrad30 and ARC sponsored positions, shouldn't be a problem.
- ridiculous 'liquidated damages' provisions. I have seen ARC sponsored J1 contracts with 250k ! agreed damages if you leave before the 3 years are up. If you have such a provision, be sure to get 'divorced' from this employer through an orderly process, such as a written agreement nullifying this clause. Otherwise you open yourself up to the ex employer suing you at will.
- WV is a high litigation, low IQ state. Unless you have 'claims made' malpractice coverage (rare), you have to contend with the issue of a 'tail' or 'reporting endorsement'. If you stay in the same state, just stay with the same carrier at the new practice, that way you don't need a tail. Look at the provisions regarding the tail in her contract (if any). Some contracts require you to buy a tail, whether you keep coverage or not (mostly corporate practices have this type of clause).

Start collecting all your insurance information. What are the provider ##s, what IPA are you in etc. When you switch jobs, you want to have all that at hand for the new practice manager.

From what I understand 2 things have to be in place before she can physically change jobs.

- The state has to approve the request for transfer (I don't think DOS and USCIS get involved again)
- The employer will have to file for an H1b transfer and receive a receipt notice for that request.

> 2) Would it be better to be self employed or employed by the physician?

She has to be employed in order to be eligible for an H1b. Only her time in H1b counts toward the waiver. What type of reimbursement agreement she makes with the new boss is up to her as long as USCIS never has to look at it (if the H1b petition says 90 or 135k, but in the end through some 'eat what you kill' agreement she only takes home 60k, they might find that the employer violated the terms of the H1b visa.)

Make sure that the new employer is in a financial situation good enough to pass the USCIS 'ability to pay' review. If the practice only generated 120k in the last year, it can be hard to convince CIS that in the coming year they will be able to pay the $135k necessary for an H1b (there is an AAO decision in the GC arena regarding small physician practices, it might be worthwhile to have that at hand. Check the 'how to overcome ability to pay RFE's' thread in the GC forum.

> 3) The current employer sponsored her for green card by labor cert.
> I-140 has been filed and is pending. Will that still be valid or will she
> need a new labor certification and renew the green card processing?

I guess you can kiss that one goodbye. The employer has every right to withdraw the I140 petition and to preserve the LC as a recruitment tool for the next poor sucker that he can rope into working for him.

> 4) Is there a formal J-1 physician grieviance forum, where her
> grieviences can be reported?

An informal one, and it's right here.

> 5) What is the obligation for her current employer in this process
> (They have agreed in principle in the past to release her from
> her contract with no repurcussions).

None that exceed the contractual obligations in the current contract. Try to accomodate them if they have a reasonable request (e.g. please stay until july1st so we can hire a graduating resident). In your current situation, you don't want to have the ex-employer outright mad at you. It probably wouldn't hurt you, but it could. One one hand with USCIS (if the employer tries to smear her), on the other hand financially (if the employer sues you for damages arising out of leaving him).


Btw:
What the hell is going on in WV? I have heard of a couple of people getting screwed big time with waiver jobs there (Too much moonshine I guess).