I a Canadian physician planning to complete a medical residency/fellowship in the United States under a J-1 exchange visa. I would like to know if my wife, a Canadian family physician could work in a clinical medical practice in the United States under the J-2 visa.

As you probably know, a J-2 dependent of a J-1 beneficiary is permitted to apply for a work authorization, which will permit the J-2 to be employed in the United States. However, the J-2 must establish that the J-2's income will not be used to support the J-1. J-2 employment may be authorized for the duration of the J-1's stay or four years, whichever is shorter.

The fact that your spouse is a physician should not affect her ability to seek an employment authorization while under J-2 status, provided that she is otherwise eligible. Specific restrictions are placed on foreign medical graduates in two instances: (a) aliens seeking permanent residence, and (b) aliens seeking H-1B status. The ground of exclusion for foreign medical graduates contained in INA §212(a)(5)(B) applies only to immigrants, not nonimmigrants. Accordingly, it has no relevance to employment while under J-2 status. Similarly, the FLEX requirement imposed upon aliens performing clinical care in H-1B status is not applicable to other nonimmigrant categories.

I am a Canadian Citizen in the United States since October 97 on an H1B as an MD. I have applied for an adjustment of status under the provisions of the national interest waiver. I work as a family doctor and the local hospital is my employer. I also work in my off hours in that same hospital's emergency department for extra pay. However, since the hospital contracts out coverage of its emergency department to a contracting agency, I am paid by that agency for any work in the emergency department. Does this constitute working for another employer? My original contract with the hospital who sponsored my H1B included a provision allowing me to work in their emergency department. I am concerned because even though I have worked only for the original sponsoring hospital and my contract includes this extra emergency work, I am paid for the emergency work through the separate contracting agency. I do not want my adjustment of status denied on this kind of technicality. Could that happen?

Unfortunately, it is possible. Adjustment of status is discretionary. Where "negative factors" exist, such as unlawful employment, the INS will be inclined to deny adjustment of status. The uncertain issue is whether you have engaged in unlawful employment.

Based on traditional rules of agency and employment law previously recognized by the INS, control rather than salary appears to be the most important factor for determining whether an employment relationship exists. When you worked in the emergency room, did you remain under the direction and control of the hospital and its staff, or were you considered a contract doctor working for and reporting to the contracting agency? Did you work under the supervision of the agency's doctors? If yes, you may very well have engaged in unlawful employment. In such a situation, the contracting agency would have been expected to file a concurrent petition for H-1B status on your behalf. They did not.

As you know, even if you are ineligible for normal adjustment of status, you might consider paying the penalty fee under INA 245(i) and filing Supplement A to Form I-485. However, INA 245(i) is due to expire on September 30, 1997. The INS has indicated that, after September 30, 1997, they will continue to adjust INA 245(i) adjustment applicants. However, by the time your adjustment is denied (assuming that it will be) it may too late. You might consider filing Supplement A now and paying the penalty fee, just in case.

Of course, as a Canadian you would not be greatly inconvenienced scheduling your immigrant processing at the U.S. consulate in Montreal. While backlogs are growing in Montreal, you can continue working on your H-1B until it is time for your visa interview. This is assuming that you will continue to be eligible for H-1B status until your interview date.