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J-1 VISA UPDATE

The Immigration Carrot and Stick

Knowing the rules of immigration practice helps smooth immigrant physicians' transition to the U.S. workplace, and gives employers an edge in filling positions in underserved areas.

By robert d aronson

Unique Opportunities, July/August 2008

Given both the growing shortages of physicians within the workforce and the substantial maldistribution of physicians, many hard-to-fill practice opportunities are now being filled by International Medical Graduates (IMGs).

Right now, the political focus regarding immigration is on greater border security, internal enforcement, and an overall tightening up of our immigration system. Meanwhile, a whole range of much-needed liberalizing immigration reforms—pertaining to the employment of both highly skilled professionals and low-skilled labor—go largely unattended.

Despite all of this, the immigration system for physicians remains functional—and often highly effective—particularly for those willing to work in medically underserved communities. Our immigration laws—perhaps begrudgingly—include a steadily expanding range of special provisions intended to facilitate the recruitment and retention of IMGs to rural and underserved communities. For this reason, any foreign physician and/or physician employer (or recruiter) needs to know the general rules and procedures in three distinct areas of physician immigration practice: 1) J-1 Waivers; 2) H-1B Temporary Worker provisions; and 3) permanent resident options.

J-1 Waiver Considerations

Many IMGs undertake their medical training under the J-1 Exchange Visitor Program. This is a temporary, nonimmigrant visa classification that is intended to promote international exchanges between the United States and other countries. The J-1 visa classification has become the predominantly utilized visa status for IMGs during their periods of Graduate Medical Education (GME). Today, there are just over 5,000 J-1 physicians who are doing their Medical Training in the United States.

While J-1 visa status enables a foreign physician to engage in GME, it requires the physician to return to his or her home country for two years. As long as a J-1 physician remains subject to this two-year home residence obligation, the physician is barred from long-term residence and employment in the United States. This means that upon completing a program in GME, a physician must either go back to his or her home country for two years or seek a waiver of the two-year home residence obligation. Over the years, the J-1 Waiver has not only guided physicians into rural and medically underserved areas, but ensured their retention for an appropriate period of time.

A commonly utilized J-1 Wavier strategy is the Conrad State 30 Program. This federally created program empowers each state department of health to recommend up to 30 waivers per year to physicians who will work in positions that benefit indigent and medially underserved patients. Of these 30 waivers, at minimum 25 are reserved for physicians who are working in designated medically underserved areas, while the remaining five waiver slots can be used for highly meritorious placements that will benefit the indigent and medically underserved, even if the actual practice site is not medically underserved.

The employer’s waiver application is filed to the state’s department of health, and needs to fulfill all applicable state waiver guidelines. It also must meet certain federal standards, including an employment contract covering at least a three-year period of time, as evidence of the employer’s unsuccessful efforts to recruit a fully qualified U.S. physician to the position. The probability of the waiver’s being approved is immeasurably enhanced if the medical practice is located in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) and the employer also needs to show an overall commitment to addressing the medical needs of the indigent and medically underserved.

There are three primary consequences of a J-1 Waiver for a foreign physician: 1) it obligates the physician to work for three years for the sponsoring medical practice; 2) it eliminates the physician’s obligation to return to his/her home country for two years (although this obligation could be re-imposed for non-fulfillment of the terms and conditions of the waiver); and 3) it obligates the physician to change from J-1 into H-1B Temporary Worker status, at least for the three-year period of employment obligation.

H-1B Temporary Worker Provision

Once a J-1 physician has received a waiver, he or she needs to change into H-1B Temporary Worker status. The H-1B nonimmigrant visa classification covers a very broad range of professional positions in the United States, including physicians. Under law, though, any physician who has received a waiver must work for three years in H-1B status specifically for the sponsoring medical employer. A physician’s failure to fulfill this commitment will likely have his or her J-1 Waiver cancelled, forcing the physician to return to his or her home country for two years or face possible deportation.

To apply, the employer first must file a Labor Condition Application to the U.S. Department of Labor, justifying the wage and working conditions being offered to the foreign physician and showing that the employment of the foreign physician will not undercut the wage structure or working conditions for other similarly employed U.S. physicians in the area. Upon approval, the employer then files an H-1B Petition to U.S. Citizenship and Immigration Services (USCIS.

For H-1B entitlement, a physician needs the following four credentials: 1) an M.D. or license in a foreign jurisdiction; 2) proof of English language fluency in the form of an ECFMG Certificate or graduation from an accredited medical school (largely located in Canada); 3) passage of all three steps of the U.S. Medical Licensing Examination (USMLE); and 4) a state medical license or other authorization enabling the physician to work at the job being offered.

The H-1B Temporary Worker classification is limited, and the volume of H-1B applications vastly out-numbers of H-1B visas in our immigration system. Fortunately, though, all J-1 physicians with waivers are exempt from the H-1B quota, meaning that employers can file and gain approval of H-1B requests at any time of the year.

Options for Permanent Residence

While H-1B may be held for up to six years, most foreign physicians want to achieve permanent resident status which carries some very powerful benefits, including: the right to work, to reenter the United States, and to live permanently in this country. In most instances, if a physician attains permanent residence, his or her spouse and children under 21 also qualify for permanent residence. A physician may start the permanent resident process during the period of H-1B employment obligation.

Most physicians attain permanent residence based upon their employment. There are two main filing options. 1) under employer sponsorship which requires the filing of a Labor Certification Application; and 2) under the physician’s own sponsorship based on the importance of his or her employment in a medically underserved area to the national interest of the United States.

Employer-sponsored Labor Certification Application

Probably the most commonly used pathway is an employer’s sponsorship of the physician for permanent residence through the Labor Certification Application process. This process requires the employer to recruit and advertise in a very specified manner in order to show the unavailability of a fully qualified U.S. applicant for the position. The Labor Certification Application process involves four steps:

1. A structured recruitment and advertising effort by the employer. Immigration laws contain specific provisions that compel an employer, under rigorous requirements, to recruit and advertise in a specified manner to fully gauge the availability of U.S. workers for a given position. Normal recruitment for immigration purposes takes roughly 90-120 days.

2. The employer filing a Labor Certification Application to the U.S. Department of Labor. This must show: 1) the unavailability of fully qualified applicants for the job; and 2) the wage being offered to the physician beneficiary meets the prevailing wage rate.

3. The employer filing an Immigrant Visa Petition to USCIS to: 1) reaffirm the employer’s offer of employment; 2) establish the employer’s ability to pay the wages for the job; and 3) establish the alien physician’s full eligibility for the position.

4. The physician, along with his or her dependent family members, securing permanent residence. This can be filed only upon fulfillment of the three-year H-1B obligation, and the filing could be delayed if there are backlogs in the quota lines for the alien’s country of birth.

National Interest Waiver Option

There is an alternative to the Labor Certification Application for physicians working in medically underserved areas. A physician could file his or her own request for permanent residence, based upon a public policy determination that it is a matter of national importance for physicians to work in designated medically underserved areas. Under this National Interest Waiver procedure, the physician cannot actually attain permanent residence until he or she has worked for five years in a qualifying medically underserved area. The National Interest Waiver option consists of two major steps:

The first step is the filing of a National Interest Waiver to USCIS. The physician must prove he or she is working in a medical practice that is located in a designated medically underserved area and that there is an intention to work within such a qualifying area for five years. The USCIS increasingly recognizes previous periods of employment in medically underserved areas as counting toward fulfillment of the five-year service period. The National Interest Waiver also often provides the physician’s spouse and dependents expedited access to employment authorization. In fact, dependent family members can qualify for employment authorization even as the alien physician is working through his or her mandatory three-year period of H-1B employment.

The second stage of a National Interest Waiver starts once the physician proves that he or she has worked for five years in qualifying medically underserved areas. Because of a recent change in policy, a physician does not need to fulfill these five years within a set time limit, which allows for a break from clinical service in medically underserved areas to pursue either other employment opportunities or pursue additional periods of GME.

Which Path is Best?

While one method for permanent residence is not necessarily superior to the other, in general, a physician would opt for pursuing permanent residence under a National Interest Waiver theory if:

• The employer is unable or unwilling to sponsor the physician for permanent residence

• The alien physician’s wage does not meet the prevailing wage for the job in the area of employment

• There is an immediate need by the physician’s spouse and/or dependents for employment authorization

• The physician is fully committed to his/her employer and to the community for a five-year period of time

Generally, a physician would pursue permanent residence under employer sponsorship under the following circumstances:

• The physician’s goal is to attain permanent residence immediately after the three-year employment obligation, rather than having to undergo two additional years of employment as required by the National Interest Waiver filing

• The physician has a supportive employer who is willing to undergo the recruitment efforts required under the Labor Certification Application

While immigration adds an additional layer of effort and complexity, it can also be used creatively to staff otherwise hard-to-fill clinical positions. With advanced planning and open, trusting communication, medical practices in medically underserved areas can recruit International Medical Graduates, and they can be assured that our immigration laws will obligate these physicians to work for substantial periods of time within communities in rural and medically underserved America. END

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Robert D. Aronson is the Managing Attorney at Aronson & Associates, P.A. His practice focuses on International Physicians, biomedical researchers, and healthcare workers.

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