One of the more difficult practice areas for immigration lawyers today involves the processing of temporary and permanent residency applications for physicians. There are many reasons why these cases are so complicated including the fact that the laws covering foreign physicians are highly complex, the documentary requirements are voluminous and the regulatory scheme seems to be in a constant state of flux.
The vast majority of physicians in the country today arrive on J-1 visas to participate in medical residency programs. With the passage of the Health Professional Educational Assistance Act of 1976, Congress imposed a mandatory home residence obligation for all physicians entering the US in J-1 status to work in graduate medical training programs. In order to avoid having to return home for two years following completion of a J-1 graduate medical training program, a physician must seek a waiver recommendation from the United States Information Agency. There are only three grounds by which a physician may seek a waiver:
– a physician can show he or she would suffer persecution if required to return to the home country or country of last residence
– the physician’s US citizen or permanent resident spouse or child would suffer exceptional hardship if the J-1 were required to fulfill the home residence obligation
– the physician receives a recommendation for a waiver issued by a US government agency or, in certain circumstances, a state health department interested in the continuing residence and employment of the J-1 doctor.
The vast majority of physician waiver requests are based on the recommendation of a government agency.
There are three types of cases where an agency will typically sponsor a physician. The first is where the federal agency employs the doctor directly. The second is where the doctor is performing research that will contribute to the nation’s interest. The third, and most common reason, is where the physician is serving in a health professional shortage area.
Though each agency that sponsors physicians for a waiver has its own set of rules, they are all bound by certain common requirements. Most of those requirements were imposed in the last four years when the State 20 waiver program was created and when the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was passed. The new restrictions include the following:
(1) Demonstrating an offer of full-time employment at a health care facility located in a US Department of Health and Human Services designated shortage area and agree to begin employment within 90 days of receiving the waiver approval (Veterans Administration facilities appear to be excepted from this rule);
(2) Agree to practice medicine for that health care facility for at least 3 years on an H-1B visa; and
(3) Agree to practice medicine only in HHS-designated shortage areas during this 3-year period.
Note that these requirements are only applicable to cases filed after September 30, 1996 (except they do apply to all applicants filing based on State health department waivers regardless of date filed).
Already, a number of problems have begun to become apparent with these requirements. For example, some physicians that qualify for a waiver, may have difficulty qualifying for an H-1B visa. The H-1B employer must be able to show that it is paying the physician the prevailing wage for physicians in a geographic area. But for facilities in poor rural or inner city areas, this may be impossible. Ironically, one of the J-1 government agency’s primary goals – helping to deliver medical services to the areas of greatest need – may be defeated by this new requirement. Some physicians may also face difficulties qualifying for an H-1B visa because they lack proper credentialing. Prior to IIRAIRA, physicians who had satisfied parts I and II of FMGEMS or USMLE could apply for permanent residency using a national interest waiver. That option is no longer available and without proper credentialing, the physician will be out of luck.
It is also not clear what happens when a physician is unable to stay for three years in the position for which the waiver was granted. The law permits the INS to waive the three year requirement under limited circumstances:
“Unless the Attorney General determines that extenuating circumstances exist, such as closure of the facility or hardship to the alien, which would justify a lesser period of employment at such health facility or health care organization, in which case the alien must demonstrate another bona fide offer of employment at a health facility or health care organization for the remainder of such 3-yefar period.”
New USIA regulations clarified further what documentation must be provided in order to satisfy the above requirements.
First, the interested agency must submit an employment contract, specifying that the foreign medical graduate will provide no less than 40 hours per week of primary medical care for three years. Primary medical care is described as general or family practice, general internal medicine, pediatrics, obstetrics, and gynecology (the primary care requirement does not apply to VA facilities or State 20-based waivers). In addition, the contract should not include a non-compete clause.
Second, the head of the health care facility that will employ the foreign medical graduate must submit a letter stating that the facility is located in a designated primary health care Health Professional Shortage Area (HPSA), designated Medically Underserved Area (MUA), or designated Mental Health Professional Shortage Area (MHPSA). The regulations exempt VA facilities from this requirement. The letter should confirm that the facility provides medical care to Medicaid eligible, Medicare eligible, and indigent uninsured patients. It must also list the Department of Health and Human Services identifier number of designation, FIPS county code, and census tract or block numbering area number or zip code of the area where the facility is located. The INS has yet to issue a regulation formally agreeing to this interpretation.
Third, the foreign national must submit a letter, using language specified in the regulation, affirming that he/she has no other Interested U.S. Government Agency waiver applications pending and that he/she will not submit other applications while the current case is being processed.
Finally, the request must include evidence that unsuccessful efforts have been made to recruit a U.S. physician for the position.
With those restrictions in mind, the following is a run down of requirements of the major agency sponsors.
Employer/Employee-based government agency waivers
The agency that sponsors most physicians on the basis of an employment relationship has traditionally been the Veterans Administration. The VA has sponsored physicians in both research and clinical positions regardless of specialty.
The VA is an attractive sponsor for a number of reasons. First, a physician interested in being employed part-time with a VA-affiliated facility can continue to do so and get the VA waiver as long as he or she spends at least 50% of his or her time at the VA facility. Second, the physician is not limited to primary care work. Third, the position need not be in a shortage area. Unfortunately, VA positions are tough to get precisely because of these advantages.
The VA facility director is the official that makes the formal request for the waiver from the Chief Medical Director of the VA. Among the many items that need to be included in the application is detailed information regarding recruitment efforts. It is also important to be able to document that a loss of the doctor’s services would lead to the ending of a program or major portions of a program at the facility.
Research positions
Several agencies sponsor applications for waivers based on medical research. One of the most commonly used programs is the Department of Health and Human Services waiver program.
The HHS program is exceptionally tough and the applicant must be able to show research being conducted is of national or international significance. Further, the physician should play a critical role in the research such that the loss of the doctor’s services would cripple the program. Finally, the physician must prove that he or she possesses outstanding qualifications.
Shortage area positions
For these types of waivers, it is normally required that the physician will practice in a Health Professional Shortage Area designated by the US Department of Health and Human Services. The most recent list of HPSAs is available at the Siskind, Susser, Haas & Chang web site’s Documents Collection at https://www.visalaw.com. It is always advisable to check with a state’s department of health to determine the latest information on whether an area is in a HPSA.
There are currently two federal agencies that sponsor most applications – the Appalachian Regional Commission (ARC) and the US Department of Agriculture (USDA). The Department of Housing and Urban Development has ended it program, though Senator D’Amato of New York has proposed legislation reviving the program.
The ARC program is limited to primary care practitioners in specific counties in states on the east coast. The covered states are Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee and West Virginia. If a physician will work in counties in the jurisdictional area of ARC, the applicant must apply for an ARC waiver or State 20 waiver and not a USDA waiver.
For ARC waivers, the State Department of Health must be notified and the state’s governor must request the waiver from ARC. The facility also must write a letter to ARC supporting the waiver request and attesting to compliance with the USIA regulations referred to above. And documentation of recruiting efforts must be submitted as well as a variety of documents relating to the physician’s background credentials. A physician must also be able to show that he or she has not been out of status for more than six months.
The USDA offers a similar program to the ARC for persons located outside the ARC jurisdictions. The USDA will sponsor physicians working in HPSAs as well as Medically Underserved Areas designated by the USDA if additional evidence is submitted documenting the need for the physician. Like ARC, the USDA requires physicians to show they have not been out of valid visa status for more than six months.
For USDA waivers, the state health department must be notified and recruiting documentation must be provided to the USDA. The physician must also submit a contract without a non-compete clause and without a clause allowing early termination of the agreement without cause.
In addition to the federal agency sponsors, since 1994, state health departments are permitted to sponsor up to twenty applicants per year for a Conrad 20 waiver of the home residency requirement. The program was recently extended by Congress and is available until 2002.
In addition to the requirements on all programs outlined above, the USIA regulations relating to the Conrad 20 program require physicians to obtain “no objection” letters from foreign governments IF the physician is contractually obligated to return to the country.
Conrad 20 states do not have to require the physician to provide primary care services, though several do.
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.