Dear Readers: 

Health care immigration in the US is still in a crisis state and Americans pay the price when they lack access to needed health care providers.  

For physicians, the Conrad 30 J-1 waiver program hangs by a thread. The program expired last September and was renewed for just six months. Last month, Congress extended the program for just six more months. For doctors who entered on H-1B visas rather than J-1s, they face H-1B caps that largely mean those doctors are limited to a very narrow range of employment opportunities when they complete their training – mainly universities, non-profit research hospitals and some non-profit hospitals that have close relationships with universities (such as teaching hospitals). Doctors seeking work in underserved communities generally are not eligible for H-1B cap exemptions. Senator Conrad has introduced a bill that would remediate many of these problems, but it will take a big effort to get the bill passed anytime soon. 

Doctors have also faced a series of new challenges as USCIS has taken what can only be described as hostile positions that threaten physician immigration all together. For example, USCIS denied 120 green card applications last fall and winter for physicians who possessed the MBBS medical degree, a degree offered in 40 countries and possessed by over 100,000 doctors in the US. USCIS argued that the degree was not equivalent to a US medical degree despite the fact that all of the state licensing boards and the Educational Commission on Foreign Medical Graduates  agree that the MBBS is equivalent to the MD. Despite the fact that doctors have started winning their appeals of these denials (and USCIS has had not victories), USCIS still refuses to reopen and approve all of the cases.  

USCIS has also started denying many H-1B cases for doctors working at non-profit employers claiming that the relationships with universities that serve as the basis for the H-1B cap exemption are not sufficient. Examiners at the USCIS CSC claim that the doctors must show that they are playing an integral role in the activity that is the basis for the relationship between the employer and the college despite the fact that there is nothing in the regulations or statute stating such a requirement. Particularly worrisome is that USCIS is denying visas for teaching hospitals for medical residents and fellows, something that jeopardizes health care delivery in the US.  

On the nursing front, the situation is not much better. Congress has failed to get past the politics to pass a nurse visa immigration bill that has been negotiated and has the support of employers, organized labor and Republicans and Democrats. If the bill was actually voted on, it would easily pass. The bill would provide a substantial number of additional nursing green cards and end the blackout on nursing immigration that has gone on for more than two years.  

USCIS is not helping the situation by suddenly making H-1Bs much harder again for nurses to obtain after taking a relatively sensible view on these applications over the last year.  

And we’re experiencing trouble for physical therapist applications now that USCIS is taking the surprising position that PTs require master’s degrees and without the degree they are ineligible for H-1B visas. State licensing laws generally require a bachelors degree. This is one example of USCIS completely ignoring its own arguments espoused in other cases in order to find a reason to deny petitions. For many years, USCIS routinely denied H-1B applications for nurses because state licensing laws only require a two year associates degree. Now they deny PT petitions in spite of state licensing laws. Neither position was correct, but at a minimum, USCIS should not be able to have it both ways.  

Fortunately, a group of employers has taken the impressive step of suing USCIS and requesting a judge to order the agency to stop ignoring the consensus position in the health care community that a bachelors degree is appropriate for entrée in to the PT profession. 

The common theme here is that the fact that there is a serious shortage in several health care professions – a shortage that is not going to be alleviated to any great extent by the rise in general unemployment in the US – is being ignored by Congress and the White House’s executive agencies. Those that care about health care in American need to be vigilant and remind Congress that immigration and labor politics shouldn’t get in the way of instituting measures that will ensure that Americans have needed access to health care professionals.  

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In firm news, in May, LexisNexis will release the 2009 edition of Greg Siskind’s J-1 Visa Guidebook. The book can be ordered online at www.lexisnexis.com.  

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We remind readers that we do not charge employers and recruiters of health care employees for consultations and that policy extends to individual physicians as well. Please feel free to call our office at 901-682-6455 to arrange for an appointment with me or one of my colleagues.  

Kind regards, 

Greg Siskind

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