[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Elissa Taub, The Physician Immigration Handbook.]

1994 saw the United States Congress enact legislation permitting state health agencies to sponsor a maximum of 20 physicians for J-1 waivers annually, dependent upon the physician’s commitment to work in a medically underserved community. In light of this enactment, every state and several U.S. territories have created Conrad J-1 waiver programs. Prior to 1994, federal agencies could exclusively act as interested government agencies (IGA) in the sponsorship of J-1 doctors for waivers.

Occasionally, Congress has revisited the Conrad program, expanding the number of waiver slots each state is granted from 20 to 30 and providing a path for the annual designation of up to 10 waivers for locations outside of those designated as underserved but which serve patients coming from underserved areas. Each state is granted the authority to determine its own rules for demonstrating whether underserved patients are being served, hence the title of these 10 waivers being “flex slots.”

Though common requirements exist for each state to include in its waiver requirements, considerable liberty is granted to states when it comes to adding additional requirements, with the programs varying considerably.

What are the common requirements for Conrad state health agency J-1 waivers?

A small number of mandatory requirements exist for Conrad 30, or State 30, programs, while most of the rules included in their programs are decided by the particular state. Section 214(l) of the Immigration and Nationality Act (INA) lays out the requirements for the state programs, including the following:

  • The physician agrees to start work within 90 days of the waiver being granted by United States Citizenship and Immigration Services (USCIS);
  • The physician agrees to serve in an underserved area or to serve patients residing in underserved areas;
  • The offer is for full-time employment; and
  • If the position is in a specialty, the employer documents the shortage of that type of specialist.

The U.S. Department of State requires state health departments to include the following items in a J-1 waiver recommendation request:

  1. A completed Form DS-3035, J-1 Visa Waiver Recommendation Application;
  2. A letter from the director of the state department of health identifying the international medical graduate by name, country of nationality or country of last permanent residence, date of birth, and also stating that it is in the public interest that a waiver of the two-year home residency requirement be granted;
  3. An employment contract between the doctor and the health care facility named in the waiver application that includes the following:
    • The name and address of the health care facility.
    • A statement that the doctor agrees to begin employment with the employer within 90 days of receiving the waiver.
    • The specific geographic area or areas where the doctor will practice medicine.
    • A statement by the doctor that he or she agrees to meet the requirements set in INA §214(l).
    • A term of at least three years in a designated Health and Human Services (HHS) shortage area or in an area that serves patients residing in a shortage area (flex slot).
    • A full-time schedule (at least 40 hours per week) in the underserved area(s).
  4. Proof that the location in an HHS-designated shortage area.
  5. Copies of all Forms IAP-66 or DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.
  6. A copy of the doctor’s curriculum vitae.
  7. If the doctor is otherwise contractually obligated to return to the home country, a copy of the statement of no objection from the doctor’s country of nationality or last residence.

What is an HHS-designated shortage area?

The Department of Health and Human Services’ Health Resources and Services Administration (HRSA) measures shortages of medical professionals and has created two types of areas that qualify: Health Professional Shortage Areas (HPSAs) and Medically Underserved Areas (MUAs).

HSPAs are designated for primary care, dental, and mental health providers. In 2015, there were 6,100 designated primary care HSPAs and 4,000 mental health professional shortage areas in the United States. Though the supply of specialists is not measured, J-1 waiver rules use HSPA designation as a threshold requirement for those applications. While many states will consider psychiatrists if an area is designated only as an HSPA, some use the Mental Health Professional Shortage Areas (MHSPA) designations for such doctors.

HSPA designation is granted to a specific geographic area, population group, or an individual facility. A primary-care designation is granted to a geographic area if the ratio of physicians to the population is 1:3,500 or worse. The population group HPSA designation is granted if there are access barriers a population group faces which make it harder to find care. In these cases, the shortage ratio is lessened to 1:3,000.

Geographic designation for mental health areas is based on a ratio of 1:30,000, while the threshold for population group designations is lowered to 1:20,000.

Individual facilities can receive HPSA designation. For primary-care designations, such facilities include prisons and jails, and public and/or nonprofit medical facilities that provide primary-care services and are deemed to have insufficient capacity to meet the needs of an area or population group.

For mental health, facilities may be specifically designated if they are prisons and county mental health centers and other public and non-profit facilities deemed to have insufficient capacity to meet the psychiatric needs of the area or population group.

All federally qualified health centers and rural health clinics providing access to care regardless of ability to receive automatic facility HPSA designation.

The scale by which HPSAs and MHPSAs are scored ranges from 1 to 25 with the score rising based upon the severity of the physician shortage. Several J-1 waiver programs place higher priority on locations that have higher HPSA scores.

MUAs may be whole counties or a group of continuous counties, a group of county or civil divisions, or census tracts in a particular county. Medically Underserved Populations (MUPs) can include people facing economic, cultural, or linguistic barriers to health care. MUAs and MUPs are designated based on the Index of Medical Underservice, a system developed in 1976 granting a score between 1 and 100 to an area or population based upon the ratio of primary-care physicians per 1,000 people, the infant mortality rate, the percentage of people with incomes below the poverty line, and the percentage of people age 65 and older.

While MUAs and MUPs may provide a more accurate reflection of the needs of a particular area or population group, they are updated with less frequency, and therefore some states prioritize HPSA designation over MUA designations.

What are some of the differences between the various state health agency J-1 programs?

  1. Timing

There are numerous differences between states with regard to the timing of the submission and adjudication of waiver applications. With the federal fiscal year running from October 1 to September 30, each state’s allotment of 30 waiver slots begins anew each year on October 1.

A few states allow the submission of applications prior to October 1. For example, Texas has a high enough demand that the program is completely filled each September 1, opening and closing on the same day. Some states take applications on a rolling basis, while others accept applications only for a defined period of time at the beginning of each fiscal year in October. For example, Illinois, Kentucky, and Michigan generally accept applications only between October 1 and October 31. For two years, Florida has had a two-week filing period in early October and has conducted a lottery of submitted applications at the conclusion of the filing period.

Other states emphasize not only timing but using a filing period to place priority on different types of applications. Some states, for example, different filing or review periods for primary-care physicians and specialists.

Furthermore, differences exist in when applications are adjudicated. While some states review and decide applications as they are received, others hold all applications and make decisions after a specific period of time has passed. A few states have more than just one adjudication throughout the fiscal year. State processing times can vary from just a few days to weeks to several months.

  1. Types of physicians accepted

Every state allows the qualification of primary-care doctors for waivers, but policies regarding accepting specialists vary considerably. Some states limit the number of specialists accepted, as is the case with Alaska, which takes up to 10 specialists. Some states will look at specialists serially and require additional documentation regarding the need, and others will consider specialists only later in the fiscal year.

As previously stated, each state is able to determine how it meets the federal requirement that there be a shortage of specialists in the location where the physician will be working. Many states exclusively require the same documentation of recruiting efforts as they do for primary-care doctors. Some states, such as Arizona and Tennessee, as well as Washington D.C., prioritize either specific types of specialists or limit specialist waiver slots to doctors in particular specialties.

Most states set specific additional requirements to demonstrate a shortage of the particular specialty. Included in these requirements are wait times to see a specialist, whether the specialist will accept Medicare and Medicaid, information on the population that the specialist will serve, information on the particular needs of the community, and information on the number of specialists already in the community.

  1. Subspecialty training

A few states restrict physicians seeking primary-care slots from having subspecialty training. The logic behind this restriction being that a physician who has subspecialty training will eventually provide specialty medicine services rather than primary-care services.

  1. Flex slots

As previously noted, each state has the authority to reserve a total of 10 waiver slots per year for employers not located in HHS-designated shortage areas, but who are serving patients coming from those areas. Though not all states use their flex slots, most do. Upon the inception of flex slots, there was a limit of five annual flex slots per state; a limitation many states still hold to present day. Notably, at least Texas, Arizona, and Indiana do not currently support flex waivers.

Some states do not have specific policy directing how they award their flex slots and will review each application on a case-by-case basis. Some states have a requirement pertaining to the minimum percentage of patients that must live in underserved areas. Arkansas, for example, requires 30 percent of its patients live in shortage areas, while Tennessee’s minimum requirement is 51 percent.

Some have special Medicare and Medicaid percentage requirements for flex slot applications. Others hold the slots until later in the fiscal year for use in the event that their regular slots fail to get claimed. Some states will reserve flex slots for particular facilities, such as academic medical centers or facilities in countries within federally qualified health centers.

States which favor primary-care doctors may reserve flex slots for specialists. Utah requires specialists to meet flex requirements. Note that the process of obtaining detailed data documenting that patients are coming from underserved areas can be both time consuming and highly expensive. It is important that employers and physicians take this into account when planning for the waiver process in states with such requirements.

Finally, some states delay adjudicating flex waivers until late in the fiscal year if they happen to still have waiver slots available, and they may limit usage only to certain specialties.

  1. Types of facilities and locations that may apply for waivers

A few states limit applications to particular types of facilities. For example, some states will accept applications only from rural facilities, safety-net providers, critical-access hospitals, federally qualified health centers, etc. Some states specifically bar applications from certain types of facilities.

For example, Arizona will not consider physicians practicing in long-term care facilities, chronic-care facilities, or rehabilitation facilities. Several other states also require a site’s approval before an application for a J-1 waiver will be approved. This can sometimes delay the processing of the waiver application. As previously noted, states vary considerably in terms of the acceptable shortage areas. Some accept any HPSA, MHPSA, MUA, or MUP designation, while others are more limiting.

  1. Fees

At least 10 states now charge fees which range from just a few hundred dollars up to several thousand, but many states do not require a filing fee at all.

  1. Letters

Several states require between one and three letters from individuals from the community in which the physician will practice. Depending on which state is in question, these letters may be from:

  • Other physicians in the community attesting to the shortage;
  • Primary-care physicians intending to refer work to a specialist;
  • County and municipal health officials;
  • Politicians; and
  • Hospital officials.

Additionally, some states require recommendation letters on behalf of the physician, attesting to the physician’s qualifications.

All State 30 applications need to include a support letter from the employer. Normally, these letters start by requesting the state act as an IGA and then by stating the location or locations that will be served and noting the shortage designation or flex waiver request; provide a description of the needs of the facility and the community, particularly for specialists; describe the proposed job duties for the J-1 doctor; list the prior recruiting efforts; discuss the physician’s qualifications; and note the impact on the community if the waiver application is not granted.

  1. Contract provisions

The core federal requirements mandate a three-year contract, but some states additionally require that contracts include or not include certain provisions. For example, many (but not all) states bar noncomplete clauses which limit the ability of the physician to remain in a community and practice medicine in competition with an employer when the three years of service are completed. Furthermore, some states bar other restrictive covenants, such as prohibiting the contacting of the facility’s patients if the physician leaves (nonsolicitation clause.)

Some state mandate liquidated damages clauses requiring physicians pay the employer a substantial payment if the physician leaves the community before satisfying the three-year service obligation. Generally, the amount decreases the close the doctor gets to the end of the contract, and the clause me not be applicable if the doctor moves to another shortage area within the state. It is possible that an employer may actually have two liquidated damages provisions in an agreement- one that it normally would include and the other being the mandated liquidated damages clause required by a state.

States may also bar contracts which permit the employer or the doctor to terminate the agreement without cause and/or require the contract specifically states termination without cause is not allowed under the contract. Restrictions placed upon terminations without case mean that an employer may not end the employment relationship merely by providing notice to the employee.

  1. Indigent and elderly patients

Most states require J-1 doctors serve Medicare and Medicaid patients and mandate employers to more broadly serve indigent populations. States typically require employers publicly post a sliding-fee scale or charity care policy in its facility and include a copy of the notice and policy in the J-2 application. Some states also require a detailed statement of the employer’s payer mix data, including some combination of the number and/or percentage of patients who have Medicaid, Medicare, private insurance, uninsured, self-pay, sliding-fee scale recipients, and indigent patients.

  1. Wages

J-1 physicians who receive waivers based upon serving shortage areas serve out their three-year obligation in H-1B status. One requirement for H-1B visas mandates the employer pay the physicians the prevailing wage for the particular location. A few states require proof of the wage meeting the prevailing wage requirements and/or documentation of the employer’s agreement to pay the prevailing wage be included with the J-1 waiver application.

  1. Languages

A few states place priority upon applications from physicians with specific language skills. For example, Arizona and Massachusetts note whether a physician speaks a language prevalent in the underserved area.

  1. Recruiting

Every state requires evidence of recruiting, however considerable variation exists regarding what specifically needs to be submitted. Requirements sometimes include providing the following documentation:

  • A minimum number of months of recruiting (frequently set at six months);
  • Advertising at the local, state, and national level in print and/or online;
  • S. physicians interviewed and the reasoning behind them not being hired;
  • Recruiting from in-state or nearby medical schools;
  • Postings at a facility regarding the position opening;
  • Recruiter agreements;
  • Mailings to residents/fellows in the area;
  • Attendance at career fairs;
  • Physician retention plans and needs assessments; and
  • The salary being offered is competitive for the area.
  1. States with federal programs

Numerous states have counties served by the Delta Regional Authority (DRA) and/or Appalachian Regional Commission (ARC) or facilities eligible for clinical waivers through the federal department of Health and Human Services (HHS), all federal programs without limits on the number of waivers they issue. Some state waiver programs, such as those in New York and Virginia, in an effort to maximize the number of waivers that can be granted in the state, require an applicant to choose the federal waiver program for processing and will only accept an application if the applicant will not qualify under the federal program but will qualify under the state’s rules.

  1. Limits on the number of applications

Some states assess each application on an independently from one another, however others limit many applications an employer may file within a given period of time or how many applications can be submitted by employers in a particular county. Some states have formal and informal rules allocating a specific number of waivers each year to particular high-priority employers in a state, often a major academic medical center or critical hospital.

  1. Credentials and Résumé

Most states require physicians to include the following items in their applications:

  • Curriculum vitae;
  • Proof of passage of U.S. Medical Licensing Examination (USMLE) Steps 1, 2, and 3;
  • Documentation that the physician will qualify for a state license;
  • Copy of the medical diploma;
  • Educational Commission on Foreign Medical Graduates (ECFMG) certificate;
  • Graduate medical training certificates (if the program has been completed), as well as board certifications (if available);
  • Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status;
  • Copies of the Form I-94, Arrival/Departure record (either one stapled in the passport, included on the I-797 approval notice or printed from the U.S. Customs and Border Protection website);
  • Copies of any I-797 Notice of Action approvals; and
  • Copy of the passport.
  1. Local ties

A few states favor, either formally or informally, physicians who received their training in the state or who have family in the area. The rationale behind this being that the physician is more likely to remain in the state upon the completion of the three-year service obligation.

  1. Medical exam

Mississippi is the lone state with the unusual distinction of requiring J-1 waiver candidates be tested for Human Immunodeficiency Virus (HIV) and tuberculosis within the six months prior to filing the application.

Can a physician be sponsored by a third-party employer, such as a hospitalist, radiology, or emergency medicine company?

Yes. Typically, any company that employs physicians is allowed to sponsor a physician for a State 30 waiver. Some states have implemented policies restricting the ability of third-party employers to hire physicians who need J-1 waivers. Alabama, notably, will not support a waiver unless the employer’s headquarters are in the state, even if the physician’s employment and practice are going to be supervised locally. Ohio also restricts the number of waivers it will approve per facility for hospital-based physicians employed by third parties.

Although third-party employers may obtain State 30 waivers for their physician employees, USCIS and the U.S. Department of Labor have implemented policies affecting these employers’ ability to file successful H-1B petitions on behalf of those physicians. Some of the heightened requirements third-party employers face include increased documentary requirements such as requiring an itinerary of work hours at all worksites, contracts/statements of work for each worksite, and the need to list all client sites on the Labor Condition Application.

In spite of this, USCIS continues to approve such H-1B petitions, and as third-party employment is a growing sector of the U.S. health care economy, State 30 waivers for hospitalists, emergency medicine physicians, radiologists, anesthesiologists, and other similarly employed physicians are expected to continue to be approved.

Can a physician self-petition for a State 30 waiver?

Theoretically, a physician could attempt this, but the significant obstacles that need to be overcome generally prevent this from being a viable option. First, it may be difficult for a doctor to demonstrate that they were recruited for a position for which they are self-petitioning, and it may be necessary for the doctor to show that other entities have been unsuccessfully recruiting for the specialty. If the physician is seeking to work as an independent contractor for another entity, the other entity’s recruiting documentation may suffice.

Also, the physician would have to meet the H-1B requirements for self-employment, an important consideration to remember. The physician would need to create an employing entity which would employ him or her. USCIS closely examines the existence of an employer-employee relationship, meaning some other person or group must have the authority to control the doctor’s employment, including performance evaluation and termination. USICS will typically look for an outside, independent board of directors for this purpose. The physician would need to sign an employment agreement with the entity and be treated as an employee for all purposes.

Finally, the H-1B application requires the employer demonstrate it has the financial ability to pat the physician the prevailing wage. In this case, the physician may present an income guarantee agreement from a local hospital or a contract provider of medical services in order to demonstrate sufficient funding exists to support the position.

Does it matter if a physician’s home country funded his or her waiver application?

Yes. Physicians who’s funding to support came from the home country government to support the physician’s medical training or who are contractually obligated to return to the home country may need to seek a letter of no objection from the home country government.

Is the H-1B cap an issue in Conrad 30-based waivers?

No. Physicians securing J-1 waivers on the basis of a Conrad 30 waiver are exempt from the H-1B cap. Furthermore, one the three-year service obligation has been completed, the physician finds him or herself in the desirable position of remaining cap-exempt and eligible to work for a different employer outside of a shortage area and otherwise ineligible for H-1B cap exemption.

Can a telemedicine position qualify for a shortage-area waiver?

Independent from whether telemedicine services are provided to physicians in an underserved area, a physician can only use a Conrad 30 waiver if he or she is physically working at an underserved location. During an October 6, 2016 liaison meeting between the American Immigration Lawyers Association (AILA) and the U.S. Department of State, the agency stated that while it currently will not permit consideration of Flex waivers for telemedicine positions, it is planning on conferring with the U.S. Department of Health and Human Services and may revisit the policy.

Can more than one waiver be submitted at a time?

U.S. Department of state regulations prohibit more than one shortage-area-based waiver application from being filed at a time. In the early days of the Conrad 30 waiver program, it was not unheard of for a doctor to file a few applications simultaneously so that he or she could increase the chances of a slot being secured. That practice has been prohibited for many years.

However, it is possible to simultaneously pursue a hardship or persecution waiver along with a shortage-area-based waiver. Physicians should be extremely cautious when pursuing this strategy. The author is aware of more than one instance in which a doctor secured the hardship waiver prior to the Conrad waiver and was contractually obligated to an employer but was unable to obtain an H-1B visa due to the lack of H-1B-cap exemption.

Is a state license required to obtain a Conrad 30-based waiver?

In most states, a license is not required to obtain approval of a Conrad 30 waiver. Most states do, however, require proof the physician applied for a license to practice medicine in the state. A physician is advised to ask about and initiate the license process as early as possible, since a license to practice medicine in the state(s) where the physician will work is a requirement for H-1B approval.

Federal immigration regulations provide that where a state will not issue a medical license prior to H-1B approval, the physician may supply a letter from the licensing authority confirming that the license application is complete and the license will issue upon H-1B approval and on that basis, secure approval of the H-1B petition for at least one year. 8 CFR § 214.2(h)(4)(v)(C)(2)

Which states typically run out of waiver numbers?

In fiscal year 2015, the most recent year for which reliable data are available, 18 states exhausted their waivers. Some states that never seem to quickly run out of waivers may see a run on slots in an unusual year, like Georgia did in fiscal year 2019, the states that are typically most competitive for waiver slots in a typical year are: California, Connecticut, Florida, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Missouri, New York, South Carolina, and Texas.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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