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PHYSICIAN IMMIGRATION ADVOCATES URGE SUPPORT FOR LEGISLATIVE GOALS
A coalition of immigration attorneys who handle physician immigration cases have begun active work in pushing for inclusion of new provisions addressing the needs of physicians in pending H-1B legislation. The group includes attorneys such as Greg Siskind, Carl Shusterman and Jan Pederson. The following statement was recently released urging grassroots support for their efforts:
        HELP SAVE NIWs AND H-1Bs FOR J-1 PHYSICIANS! 
 Washington, DC--March 27, 2000 
J-1 Physicians are once again endangered and we need the help of every current and  former J-1 Physician to hold on to what we have won and to gain benefits for J-1 Physicians under the pending H-1B Legislation. 
A brief agenda of what needs to be done is listed below. However, we cannot hope to achieve even these modest goals without legislative experts (referred to as lobbyists). Lobbyists cost money. We need each J-1 physician (current or former) to contribute to the cost of a lobbyist. There is no other source of funding for this advocacy effort. We suggest a contribution of 0 for residents and 0 to 00 for practicing physicians. Checks should be made payable as follows: 
      National Health Care Access Coalition 
      PO Box 57134 
      Washington, DC 20037 
Time is of the essence as the Senate will vote on the bill described below the week of April 10th. If we want the provisions to benefit you included, the legislative experts must be hired immediately. So send your contributions to save NIWs and H-1Bs for physicians. 
ADMINISTRATIVE PROBLEMS 
On the administrative side, the INS has put a hold on the approval of NIW petitions for physicians working in medically underserved areas and at VA hospitals, after Congress enacted H.R. 441 (Public Law 106-95) on November 12, 1999, restoring NIW for this group of physicians. INS will not move unless their is congressional and/or White House pressure to do so. 
Also on the administrative side, there has been nothing but chaos in the processing of the J-1 waivers at the Waiver Review Division (WRD) of the Visa Office of the Department of State (former USIA). There is no accountability or access to decision makers. Immediately upon arrival at the Department of State, all telephone, fax, and e-mail access to the waiver review officers was cut off, on the pretext the officers needed more time to Eliminate alleged backlogs. The net result is that processing times have more than doubled, 4000 records have been erroneously entered and no one has access to the officers, including congressional staffers, attorneys, employers and physicians. Moreover, there has been a dramatic increase in denials of hardship waivers since the move. Again, without congressional and/or White House pressure, there is no sign things will improve. 
LEGISLATIVE ISSUES 
As most of you are aware, the INS exhausted the allotted 115,000 H-1B numbers for this entire fiscal year on March 21, 2000. That means no new H-1B petitions can be approved before October 1, 2000, at the earliest. Without congressional action to increase the cap this year and in coming years, the cap for FY 2001 (October 1, 2000, through September 30, 2001) will be used up in a short period of time. 
There are three bills in Congress to increase the cap. However, each bill needs special provisions that address the unique problems of J-1 physicians. 
Senate Action 
The Senate bill, S. 2045, introduced by Senator Hatch, and co-sponsored by Senators Abraham and Lott, among others, is the bill which should be supported by the J-1 physician community and is strongly supported by the health care provider and business community as meeting the need for skilled and high tech workers on a timely basis. 
A brief synopsis of the bill and the provisions we need to add to meet the needs of the J-1 physician community delivering health care to America's neediest citizens is as follows: 
Increases the annual number of H-1B visas to 195,000 per fiscal year for fiscal years 2000, 2001 and 2002. 
[J-1 physicians working in medically underserved areas and at VA hospitals should be exempt from the cap. As passed by the Judiciary Subcommittee, only employees of universities or related or affiliated nonprofit entities such as university teaching hospitals and nonprofit research or government research organizations are exempt from the cap. 
As most J-1 physicians cannot file an H-1B petition before July of the year they complete residency training because they must await state licensure, they are already more than nine months behind in the H-1B queue just awaiting licensure to start work a few months later. If the present trend continues, this group of physicians will wait up to two or more years after completing training to begin work serving in rural and urban areas where physicians are desperately needed.] 
Exempts persons with master's degrees or above from the H-1B cap provided other time limits are met. [Editor's Note: This should be amended to specify that foreign degrees which are evaluated to be the equivalent of an M.D. degree are exempt from the cap as well.] 
Exempts employment-based immigrants from per country limitations if visas available. [Editor's Note: This will greatly benefit persons born in India and China as they will not have to wait as long for a visa number to be available.] 
A person in H-1B status changing employers may commence work for the new employer while the application to change employers is pending, provided other conditions are met. This will prevent the current delays in changing employers while awaiting approval of a subsequent petition. 
H-1B extensions beyond six years are authorized for those who have I-140 immigrant visa petitions or I-485 applications to adjust status pending, if timely filed and a labor certification application or I-140 has been pending more than 365 days. H-1B extensions are authorized in one-year increments. 
[Editor's Note: The bill should include a provision amending Section 212(j)(2) of the INA to accord H-1B status to physicians who are licensed in a state or eligible for such. At the present time, Canadian physicians and FMGs who have not taken the USMLE, Steps 1, 2, and 3 or FLEX I and II (no longer in existence) or NBME I and II cannot obtain H-1B status even though credentialed by ECFMG and licensed to practice in the state of intended employment. This is a superfluous requirement and duplicates testing of skills already screened by other government agencies.] 
House Action 
                       VOTE NO TO H.R. 3814 
The American Immigration Lawyers Association, the American College of International Physicians, as well as J-1 physicians and health care providers throughout America are strongly opposed to H.R. 3814, "Technology Worker Temporary Relief Act," which is sponsored by Congressman Lamar Smith, Chairman of the House Immigration Subcommittee. 
Its provisions would make H-1B visas even less available to physicians than they are now. 
Some of the most restrictive provisions include: 
Filing fee increase up to 60.00 as opposed to 0.00 at present. 
Increase of only 45,000 H-1B visas and only for this fiscal year. The increase in numbers is limited to employers who can demonstrate a net increase in the number of full-time American workers; a net increase in the total wages paid to American workers; and a net increase in the median of wages paid to U.S. workers during the past year. 
Requires all nonimmigrant entering to perform services in a "specialty occupation"(e.g., physicians), other than those with H-2A, O, or P visas to have H-1B status. 
[Editor's Note: As written, this would prohibit physicians from completing residency and fellowship training in J-1 or J-2 status. They would be compelled to complete residency training in H-1B status, even when H-1B visas are unavailable, and even if they were available, spouses could not work in H-4 status to supplement the meager resident stipend. The law should clarify that persons entering for graduate medical training in J classification are exempt from this requirement.] 
Prohibits part-time employment, even with a concurrent employer. This means that financially strapped, urban and rural hospitals in underserved areas cannot use the physicians' services in nursing homes, schools, correctional facilities or hospital emergency rooms if a second H-1B petition is required. Of course, all J-1 waiver physicians must work full-time in H-1B status for their waiver employer. However, because compensation is often lower when serving a poor, uninsured population, many physicians need to supplement their income by performing extra services of benefit to the community. 
Expedited Processing. Great if you can qualify, but few of the health care providers in medically underserved areas can qualify. If qualified for expedited processing, if INS does not adjudicate a properly filed petition within 30 days, such petition is deemed approved. 
The trick is that in order for an employer to qualify for expedited processing, the employer: 
must be an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental entity and must have been in existence continuously for not less than five years; or must have been doing business continuously for not less than five years and must have reported at least 0,000,000.00 in gross receipts or sales on a United States tax return for each of the two most recent tax years; and cannot be an H-1B dependent employer in addition to several other conditions. 
[Editor's Note: This provision would cover medical residents working at university teaching hospitals; thus, the program directors and the physicians could be assured that the physician would be available for work within thirty days of filing an H-1B petition. It would also apply to city, county and state hospitals who employ physicians. However, it would not apply to other nonprofit organizations, who are often government funded in whole or in part, who employ physicians, and would apply only to the largest employers, seldom encountered in underserved areas. 
This provision should be amended to provide expedited processing for physicians working in medically underserved areas or at VA hospitals.] 
Foreign credentials evaluations are assigned to the State Department. With already thin resources, why would this burden, in which they have no expertise, be added to their duties? How would it be implemented? The credentials evaluators in the United States are reputable individuals with experience and qualifications in the educational field. This provision should be eliminated as it will cause further delay, rendering a new pool of H-1B numbers unavailable because of credentials evaluation delays. Physicians, whose credentials have already been evaluated by ECFMG to be the equivalent of an M.D. degree, should be exempt from this requirement. 
             VOTE YES TO H.R. 3983 WITH CHANGES! 
H.R. 3983, the "Helping to Improve Technology Education and Achievement Act Of 2000," is a bipartisan bill, introduced by Congressman Dreier (R.-CA) and Cosponsored by Congresswoman Zoe Lofgren (D.-CA) and is supported by the American Immigration Lawyers Association, the American College of International Physicians, the health care provider community, and international medical graduates. 
However, the bill needs some modifications to accommodate the needs of employers in medically underserved areas and VA hospitals. A quick summary of the bill with comments follows: 
Provisions not effective until October 1, 2000, which would not remedy the current crisis in health care and high technology. The bill should be effective upon enactment and apply to this fiscal year, as well as fiscal years 2001 and 2002. 
Provides for 200,000 visas per year, starting October 1, 2000, through September 30, 2003. There is a set aside of H-1B numbers as follows: 
10,000 H-1B visas go to institutions of higher education or related or affiliated entities or nonprofit research or governmental research organizations. 
[Editor's Note: This provision should be amended to include a set aside for J-1 physicians working in medically underserved areas or for governmental entities.] 
80,000 of the H-1B visas go to aliens who have achieved a master's or higher degree (or its equivalent). 
[Editor's Note: Again, it is not clear J-1 physicians would be included. Thus, this provision should be amended to include M.D. degrees or the equivalent. This is needed because "a master's degree or higher degree" suggests a person needs a second degree beyond a bachelor's degree in order to qualify for this set aside. As most foreign medical graduates have only one degree, which has already been deemed by ECFMG to be equivalent to an M.D. degree, the statutes should so specify.] 
H-1B six-year limit waived if certain requirements met in terms of filing an I-140 or I-485. [Statute unclear as to who qualifies in terms of where the permanent residence application is in the system at the time the six-year limit is reached.] H-1B extensions beyond the six years granted in one-year increments. 
Filing fee raised to 00.00. 
Numerical limitations on employment-based immigrants may be lifted if additional visas available. 
H-1B six-year limit may be waived for certain nonimmigrant while an adjustment of status application is pending. 
This does not quite solve the problem. It should exempt those who have an I-140 pending as well, as there is a serious backlog in adjudicating this preliminary petition, before an application for adjustment of status to permanent residence may be filed.  Even more preferable is a return to the former INS system where an applicant would file both the employment-based petition (I-140) and the adjustment application (I-485) together. This would save the INS significant valuable human and financial resources, with no harm to any legitimate governmental interest. It should be noted that family based petitions now are filed simultaneously with the adjustment application (I-485) where the priority date is current.] 
Permits Internet recruitment exclusively for permanent alien labor certifications. 
[We support this in general but are strongly opposed to permitting the Department of Labor to choose the Website. This objection is based on the historical record of inaction by the Department of Labor in issuing regulations and guidance. The Regional Certifying Officers of the Department of Labor have historically determined where advertising should be placed in the print media and there should be no difficulty in designating Websites. This would permit immediate implementation of the Internet advertising.]
If you care about your future, act now. Contribute money to the fund to hire a legislative expert. Have your employers, patients and other supporters write, email and call your Congressperson and Senators to urge them to support H.R. 3983 with changes and S. 2045. Advocate just as strongly that H.R. 3814, introduced by Congressman Lamar Smith, Chairman of the House Immigration Subcommittee, be defeated as being anti-business, anti-health care provider and anti-skilled workers. There would likely be no real increase in H-1B visa numbers to benefit most employers under the Smith bill. 
If you care about the issues, in addition to an immediate financial contribution, we urge you to join The American College of International Physicians (ACIP). You can join on their Website at www.acip.org. The mission of this organization is to advocate on behalf of foreign medical graduates.