GUEST ARTICLE:  New Immigration Law Helps Foreign Doctors

By Stanley Mailman and Stephen Yale-Loehr*

The latest immigration law, signed by President Clinton on November 12, 1999, is a technical fix.  Through the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. No. 106-95, Congress sought to remedy certain narrow interpretations of existing law that have made it hard to bring doctors and nurses to areas of the United States where they are badly needed.  In doing so, it carefully parsed the requirements to benefit only physicians and nurses who will work in underserved areas.  The rules for nurses are particularly onerous, and limit the number of visas under the new law to 500 a year for just four years.  The new law also makes it easier to bring to the United States employees of international accounting and management consulting firms.  This article summarizes only the new law’s provisions concerning doctors.

Background

Foreign physicians face many obstacles in coming to the United States to work temporarily or permanently.  Most foreign doctors coming to train in U.S. residency programs enter as nonimmigrants in the J-1 exchange visitor category.  As such, they are subject to the two-year home residence requirement of INA § 212(e), 8 U.S.C. § 1182(e).  That provision requires certain J aliens to return to their home country for at least two years before they are eligible for H or L nonimmigrant status, or for permanent residence.  While there are four types of waivers from the two-year home residence requirement, the only one that usually applies to J-1 doctors is the “interested government agency” waiver, in which a federal agency or a state health department recommends a waiver.  Use of the interested government agency waiver has increased dramatically over the last few years, as federal agencies (primarily the U.S. Department of Agriculture) and state health departments have used this mechanism to alleviate shortages of primary care doctors in rural and other areas.  Many such waivers have been granted on the premise that it is in the national interest to have a doctor work here in a medically underserved area.  Usually such waivers are granted on the condition that the foreign doctor work in the underserved area for three or more years.

Once the home residence requirement has been either satisfied or waived, the J-1 foreign physician may apply for H-1B nonimmigrant status or a green card.  While there are several ways for a doctor to obtain a green card, a commonly used mechanism requires the sponsoring employer to first prove to the satisfaction of the federal Labor Department that no U.S. doctors are available to do the given job.  That process is called labor certification.  While a hospital or medical employer in a medically underserved area can often show that no U.S. doctor is available, the labor certification process can take a long time.  In New York State, for example, some labor certifications can take three or more years because of state and federal labor department backlogs.

An alternative to labor certification, for a member of the professions or a person of exceptional ability, is a national interest waiver.  This provision of the law (INA § 203(b)(2)(B), 8 U.S.C. § 1153(b)(2)(B)) allows foreign nationals to obtain a green card without labor certification if they can show that their work is in the national interest.  Congress never defined “national interest” for this purpose, and neither has the Immigration and Naturalization Service (INS).  Many foreign nationals, including foreign doctors, have obtained immigrant visas this way.  After all, if a federal agency or state health department recommends a J-1 waiver for a doctor because it is in the public interest to work in a medically underserved area, such work would also appear to be in the national interest for green card purposes.

In 1998, the INS dramatically restricted the use of national interest waivers through a precedent decision called Matter of N.Y. State Department of Transportation (NYSDOT) (Interim Decision No. 3363 (INS Acting Associate Commissioner Aug. 7, 1998)).  The case imposed tough new standards on national interest waivers generally. (See Stanley Mailman & Stephen Yale-Loehr, The ‘National Interest’ Waiver, N.Y.L.J., Mar. 8, 1999, at 3.)  Among other things, the decision held that the foreign national’s work must benefit the nation as a whole, not just one area or state.  Although the case itself didn’t involve doctors, under its rationale foreign doctors could no longer qualify for national interest waivers by working in medically underserved areas.

The New Law

The Nursing Relief for Disadvantaged Areas Act of 1999 started out simply as legislation to help certain nonimmigrant nurses in the United States.  After intense lobbying by foreign doctors and medical employers in underserved areas, the Senate added a section to help foreign doctors. Section 5 of the new law restores national interest waivers to physicians if they agree to work at least five years in medically underserved areas or at Veterans Administration (VA) facilities.  For those physicians the new law overturns Matter of NYSDOT.  The five-year work requirement was a compromise arrived at by combining the three-year requirement that many J-1 doctors have because of their contracts under the interested government agency waiver plus the two or more years it now takes in many parts of the country to process applications for adjustment of status, which is the last step in actually obtaining a green card.

Section 5’s provisions include the following key points:

•     The foreign doctor must agree to work full time as a physician in an area designated by the Department of Health and Human Services as having a shortage of doctors or at a health care facility run by the VA.

•     Any “federal agency or a department of public health in any State” must have previously determined that the foreign physician’s work in the area or at the petitioning facility is in the “public interest.”  This generally benefits J-1 doctors who have obtained an interested government agency waiver.  However, such a waiver is not explicitly required.  Foreign doctors in H-1B status and other physicians who have never been J-1 visa holders may apply for a green card under this provision, assuming they meet all of section 5’s requirements.  For example, this may benefit doctors trained in Canada who now want to work in the United States, provided that they are not inadmissible as “unqualified physicians” (e.g., they have passed Steps 1, 2 and 3 of the U.S. Medical Licensing Examination. (See INA § 212(a)(5)(B), 8 U.S.C. § 1182(a)(5)(B)).

•     The range of agencies involved under section 5 is far greater than those that can sponsor a physician for a J-1 interested government agency waiver.  Under the plain language of section 5, any federal agency or a department of health in any state may determine that the physician’s work in a shortage area is in the public interest.  Theoretically, the plain language also allows a city or county health department to make such a determination, since they too are a “department of public health in any State.”

•     The new law only requires the government agency or health department to determine that the physician’s work is in the “public,” not national, interest.  This should make it easier to persuade government agencies or health departments to write letters on behalf of foreign doctors working in underserved areas.

•            Doctors can begin final processing for a green card (adjustment of status in the United States or consular processing overseas) before the five years is up, but cannot complete the process until they have served an aggregate of five years in a shortage area or at a VA facility.  The term “aggregate” indicates that the doctor does not have to serve five continuous years in a shortage area.  Time spent working in J status does not count toward the five years.

Section 5 allows doctors and their family members to apply for adjustment of status as soon as their national interest waiver petition is approved, assuming their priority date is current.  Each member of the family may also apply for an employment authorization document (EAD) (INS form I-765) and a travel permit known as “advance parole” (INS form I-131).  This is better than the prior situation, in which J-1 doctors who received interested government agency waivers worked in H-1B status, while the family members had to remain in nonworking H-4 status for at least three years.

One other point about section 5 is interesting.  While the normal national interest waiver provision states that the INS “may” grant a green card if the person’s work is in the national interest, the new language added for physicians states that the INS “shall” grant a national interest waiver if the doctor meets the statutory requirements.  This removes some of the INS’s discretion in such cases, although there will still be battles over whether a particular physician meets all of the new law’s requirements, such as working “full time.”

Section 5 does not affect doctors who received an approved national interest waiver before November 12, 1999, the date of enactment.  For physicians with pending national interest waiver applications filed before November 1, 1998, the five-year requirement is reduced to three years. For new applications, the five-year requirement applies.

What happens if a doctor filed a national interest waiver before November 1, 1998, but the INS denied it after that date?  Can the doctor file a motion to reopen the case now? If so, how long would he or she have to work?  Under a plain reading of the statute, such a physician should only have to work three years, not five. Section 5’s effective date language states that if a national interest waiver application was “filed” before November 1, 1998, the work requirement (outside of J status) is three years, not five.  Technically, a motion to reopen is not a new application.  It simply reopens an existing case.

Section 5 leaves some questions unanswered.  For example, what happens if a doctor changes jobs during the five-year commitment to work in a different shortage area?  What happens if the hospital or clinic in which the doctor is working is in a shortage area at the beginning of the five years, but doesn’t qualify as such five years later?  We will have to wait and see how the INS interprets these and other questions.  Regulations are probably many months off.

In the meantime, doctors can try to file directly under the statute and hope for the best.  However, at least one INS regional service center has suspended adjudication of national interest waiver cases for foreign doctors working in medically underserved areas.  The service center apparently feels that it is better to wait to have a policy in place rather than denying a case in error that could be approved under the new law.  It remains to be seen whether the other three INS service centers will also hold up such cases, or when INS headquarters will issue an interim policy pending formal regulations.

Conclusion

The new immigration law provides only modest relief for parts of the country suffering from a shortage of doctors.  The continuing shortage of primary care physicians in those areas warrants more comprehensive attention.

Congress should also think more about national interest waivers generally.  Section 5 of the new law was enacted because foreign doctors and their employers persuaded Congress that giving “national interest” so restricted a reading could hurt our health care.  But carving out an exception for just one affected group is not the answer.  In examining the effects of Matter of NYSDOT, Congress may wish to return the waiver possibility to other professionals who also can show a critical impact at the state or regional level. 

bio info: * Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. (http://www.bender.com). Mr. Mailman (mailto:smailman@compuserve.com) is counsel to Satterlee Stephens Burke & Burke (http://www.ssbb.com) in New York City.  Mr. Yale-Loehr (mailto:syl@twmlaw.com) is of counsel at True, Walsh & Miller (http://www.twmlaw.com) in Ithaca, New York, and teaches immigration law at Cornell Law School. He is also the author, along with Greg Siskind and William Stock, of the J Visa Guidebook, a new book published by Matthew Bender and Company.

This article originally appeared in the December 27, 1999 issue of the New York Law Journal.  Copyright © 1999 the New York Law Publishing Company.  The authors thank the Journal for permission to reprint this article.