Special Considerations for Medical Professionals

March 11, 2002

Mavel Morales

Julie Tsai

I. Immigration Rules Governing Foreign Born Physicians

Options for entering the country as a foreign born physician

The Two Primary Visas Are:

§ J-1 Exchange Visitor Visa: used for graduate medical education and training.

§ H-1 Nonimmigrant Visa: used for non-clinical graduate experience. H-1B visas may allow patient care services performed by the foreign born physician.

H-1 Nonimmigrant Visa Requirements for foreign born physicians (previously discussed in week 5 presentation)

§ She must be licensed in the State of intended employment

§ She must be a graduate of a foreign or U.S. medical school, or have a full and unrestricted license to practice medicine in a foreign state.

§ If the foreign born physician intends to perform patient care services she must have either:

§ Graduated from a medical school accredited by the Liaison Committee on Medical Education (LCME) OR

§ Passed steps I, II and III of the US Medical Licensing Examination and have competency in written and oral English

Timing & Other Obstacles

§ Often the tests and licensing deadlines change & are administered infrequently.

§ This may result in delays and or missed residency opportunities.

§ According to AILA, the congressionally mandated cap of 65,000 workers on H-1B visas was met within the first 5 months of the fiscal year.

§ Signaling to AILA a vast need for highly educated professionals in the workforce.

J-1 Exchange Visitor Visa Requirements

§ She must provide a written assurance from the home country confirming that there is a need for her skills in this country

§ There must be a written agreement from an accredited school of medicine which will provide training in the U.S.

§ The foreign born physician must already have prior education/licensure abroad

§ She must prove sufficient skills that she has already achieved by having either

§ Graduated from a medical school accredited by the Liaison Committee on Medical Education (LCME)

OR

§ Passed parts I and II of the National Board of Medical Examiners examination (or equivalent) and possess competency in written and oral English (usually TOEFL test)

Advantages to J-1 Visa

§ Compared to the H-1 visa, a spouse on a J-2 Visa may obtain more easily a work permit.

§ No social security tax requirement

§ No labor certification needed

Limitations to J-1 Visa

§ J-1 visa holders are typically subject to a two-year foreign residence requirement before they are eligible to return to the United States.

§ Physicians must either fulfill their 2 year home country requirement or secure a waiver in order to obtain an H1-B or L-1 Visa or permanent resident status.

Obtaining a Waiver
Unlike other categories of J-1 exchange visitors, an International Medical Graduate (IMG) cannot obtain a waiver of the 2 year home residency requirement based on the issuance of a “no objection” statement by his or her home country.

She can only obtain a waiver on the basis of:

§ Anticipated persecution

§ Exceptional hardship to a U.S. citizen or permanent resident spouse or child (i.e. anchor relative) OR

§ A recommendation by an Interested Government Agency (IGA)

Why is there an IGA Waiver Option?
A glimpse of the status of healthcare in the U.S.

§ National Healthcare spending growth is expected to reach 17.7% of the Gross Domestic Product or $3.1 trillion by 2012.

§ Healthcare planners in the U.S. believe that we face an emerging shortage of physicians.

§ If unaddressed it will render the physician workforce incapable of meeting the medical needs of our aging population.

§ People today are living longer and thus are raising the expectation that an aging population will require ever-greater levels of physician services in a system that is already straining to meet current demand.

§ There continues to be a substantial geographic and functional maldistribution patterns in the physician workforce, which has left us with huge gaps of people who are medically underserved.

Relevancy of J-1 IGA Waiver Policy to these national healthcare concerns

§ As previously stated there is an alarming and growing shortage of physicians in the U.S. if left unaddressed will compromise our nation’s ability to provide adequate healthcare coverage to the population

§ The pool of International Medical Graduates (IMGs) provides the single most available source of new physicians

§ Based on empirical data, IMGs display a “gap filling” pattern of practice in that they disproportionately serve the needs of the indigent and medically underserved, ethnic communities, and underserved areas

§ For J-1 physicians, a waiver of the '212(e) home residence obligation is an indispensable prerequisite to obtaining permanent resident status so as to enter into medical practice in this country.

The Current State of Interested Government Agency (IGA) Waivers to J-1 Physicians

The 3 paradigms for IGA Waivers for IMGS:

§ Community Based Medical Service in a medically underserved area

§ Employment directly within a federal facility (i.e. the Veterans Administration)

§ Academic Research of perceived national significance

Basic Requirements for IMGs who receive waivers through either a federal or state IGA program

§ 3 year service requirement in H1-B status prior to gaining eligibility for permanent resident status or an immigrant visa

§ Must work strictly on a full-time (40 hours) basis during the 3 years

§ Must work in some type of medically underserved area

§ Employing facility must be physically located in an area which has received federal medically underserved designation.

Medically Underserved Community Based Waiver Programs

§ Health & Human Services Waiver Program

§ Appalachian Regional Commission

§ Conrad State Program

§ Delta Regional Authority

HHS Waiver

§ Prior to 2002 HHS only issued waivers to research physicians & biomedical researchers

§ In 2002, HHS announced its program to serve as an IGA for clinical physicians.

§ A great deal of uncertainty surrounds this program. According to AILA’s Washington Update [Volume 8, #1 Jan. 2004]

§ HHS unexpectedly shut down for several months in 2003, and was revived in December 2003 for the duration of fiscal year 2004.

§ Concurrent with its revival, several new rules were incorporated into the program that will significantly narrow the available pool of facilities eligible to apply for waivers on behalf of J-1 physicians. Under the new rules, only facilities in certain Health Professional Shortage Areas will qualify.

§ Considering that under the previous, more lenient, program only 43 applications for J-1 waivers were submitted, serious questions remain regarding HHS’s motivation to further restrict the program.

Limitations to HHS Waivers besides the great deal of uncertainty

§ Only for primary care physicians

§ Physician’s position must commence w/in 12 months of the conclusion of her primary care medical training.

§ Physician must have a medical license at the time the waiver is filed. [as opposed to at the time employment begins]

Appalachian Regional Commission General Requirements

§ Must practice primary care as defined by federal government

§ Work must be in one of the following counties: AL, GA, KY, MD, MS, NY, NC, OH, PA, SC, TN, VA, WV.

§ Must work full time

§ Facility must be located in federally designated shortage area for primary care or for psychiatric care.

§ IMG must demonstrate that since receiving J-1 visa, she has not been out of status for more than 6 months as of the date on which the ARC reviews the waiver request

Conrad State 30 Program Requirements

§ IMG must agree to work full time for a facility in a HPSA or MUA/MUP for at least 3 years in H1-B specialty worker nonimmigrant status

§ IMG must agree to begin work at the facility w/in 90 days of receiving approval of the waiver by the BCIS

§ Physician must obtain a no objection statement from his or her home country if contractually obligated to her home country.

§ State waivers are not permitted to exceed 30 per fiscal year.

Deciding between federal and state waivers consider

Federal

§ Limited to IMGs who are trained in and agree to provide primary care

§ Can’t have noncompete clauses

§ Facility must provide statement confirming acceptance of Medicare/caid eligible patients & indigent uninsured patients.

§ Must require evidence of unsuccessful recruitment efforts for U.S. physicians.

§ Unlimited waivers

State

§ Latitude to define primary care and to recommend waivers for medical specialist

§ Can have noncompete clause

§ No Medicare/caid statement required.

§ No evidence of U.S. recruitment required.

§ Limited to 30 per state.

Delta Regional Authority Waiver Program Requirements

§ Must work in one of the following states: AL, AR, IL, KY, LA, MS, MO, TN in a medically underserved area

§ Physician must agree to provide primary care as defined in DRA guidelines for not less then 40 hours per week for no less than 3 years.

§ Sponsor must demonstrate a good faith effort to recruit U.S. doctors in the same salary range during the 6 months preceding the waiver app.

§ No noncompete clause in K.

§ Doc. must have a license to practice medicine in the State or must be eligible for licensure.

§ If K is for 5 or more years of service the DRA will support a request for a national interest waiver

Waivers for Employment Directly with a Federal Facility: The Department of Veterans Affairs

§ VA waiver request is initiated within an individual VA facility

§ VA accepts medical specialist, primary care physicians, and medical researchers if it is supplementary to clinical care

§ No federal recruitment requirement for VA

§ 40 hours a week

§ No HPSA or MUA requirement

§ 3 year commitment with no premature departure allowed regardless of circumstance. [Other federal programs allow relocation to another MUA for remainder of 3 yrs.]

Waiver Requirements for Medical Research of National Significance: HHS

§ IMG must establish that he is an outstanding academic physician w/a strong commitment to bench research [i.e. lab] in an area of high national priority

§ Petitioning academic medical center must show that it has attained a high level of research excellence in areas of high national priority

§ Petitioning medical center must prove that it has completed a U.S. recruitment process

Process for Obtaining a J-1 Waiver regardless of basis for pursuit

§ Applicant needs to initiate the waiver application process by requesting a waiver # from the DOS

§ This # then needs to be utilized by the J-1 exchange visitor for all future waiver applications.

§ J-1 waiver applicant can only have 1 IGA waiver pending at any given time, it is permissible to concurrently seek a waiver per an IGA and an exceptional hardship/persecution theory waiver.

§ If an IGA waiver is denied, the J-1 waiver applicant can subsequently seek a waiver through another IGA.

Waiver Process

§ All IGA waiver requests go from the recommending government agency to the Department of State (DOS), which then determines whether it will recommend the request to the Bureau of Citizenship and Immigration Services (BCIS) for approval.

§ Exceptional hardship & persecution waiver requests are filed directly with the BCIS for initial findings.

Change of Employment After Obtaining IGA Waivers

§ Currently the waiver beneficiary must work in H1-B status with the petitioning facility for a minimum of 3 years before gaining eligibility for permanent residence. Failure to do so results in reinstatement of the home country requirement unless beneficiary demonstrates:

§ Extenuating circumstances (i.e. closure of facility and hardship to the IMG) which makes the physician’s continued employment palpably unfair AND

§ Physician’s relocates to a medically underserved area for the balance of the 3 year H1-B service obligation

II. Change of Employers by the Foreign Medical Graduate

The Exploitative Employer

§ Sub-specialty practice

§ Compensation at the lower primary care rate while having the physicians practice their sub-specialty

§ “Bait and switch”: Require the FMG to work outside the HHS designated shortage area

§ Nonpayment of compensation

§ Remember: Failure to fulfill the 40 hour per week requirement is a status violation

Malcontented FMG

§ It is important for the attorney to determine whether any actual circumstances exist to warrant the discontent of the FMG

§ Filing of a change of employers petition may cause the breakdown of the employment relationship, invite the scrutiny of the BCIS and result in the loss of H-1B status and the waiver

Employment K Dispute

§ Usually concern compensation or scope of employee duties

§ Document the employer’s position with written correspondence between attorneys

§ If the FMG has acted reasonably and in good faith to try to resolve the K dispute, BCIS should be willing to approve the request for change of employers

Employer Financial Difficulty

§ Inability to meet the financial obligations of the employment K due to unforeseen economic conditions

§ Employer’s inability to pay the FMG’s salary

Facility Closure

§ Documentation of closure

§ Petition by a new employer for a job within a qualifying HHS shortage area

Family Medical Condition

§ An FMG or a member of his or her family may develop a medical condition that requires treatment unavailable in the area where the FMG is serving

§ Adequate documentation of the condition and unavailability of medical treatment should serve as proof of hardship

The New Employer Petition

§ The FMG must have a new job offer and an employer willing to employ the FMG in an HHS designated shortage area under the terms of H-1B employment

Extension of Status –
Cessation of Employment

§ Prior to the filing of a new employer petition, BCIS may exercise its discretion to approve an extension of status and a new employer petition

§ Counsel for the FMG must clearly document the circumstances surrounding the cessation of employment

§ Where circumstances were beyond the control of the FMG, and the FMG is otherwise eligible for relief, BCIS should be urged to approve the extension of status, without requiring the FMG to depart the US to reapply for a visa

Extension of Status –
Continuation of Employment

§ The FMG should continue original employment ideally up to the point that BCIS approves the new employer petition and the request for extension of status, but at least until the petition is filed

§ In cases where the FMG has terminated employment with the original employer, it is unsettled whether the original petition survives

Portability

§ An H-1B employee may begin employment with the new H-1B employer upon the filing of a petition by the new employer

§ Most prudent practice is to wait until the new employer petition is approved before the FMG begins work with the new employer

Premium Processing

§ Processing can be expedited to within 15 days

§ Some practitioners have observed that requests for premium processing seem to lead to service center requests for additional evidence in all but the most routine cases

Support and Consent from the IGA

§ BCIS does not require prior approval or consent of the IGA that made the original waiver recommendation

§ Typically wise to seek the consent of the IGA and it is helpful to include an IGA support and consent letter in the new employer petition package

§ At a minimum, the IGA should be notified of any change of physician employment

The Petition and Supporting Evidence

§ Form I-797 relating to waiver and nonimmigrant H status

§ Explanation from the FMG, with supporting evidence establishing that extenuating circumstances necessitate a change in employment (from 3^rd party sources)

§ Employment K establishing that the FMG will practice at the health care facility named in the new H-1B petition for the balance of the required 3 year period

§ Evidence that the geographic areas of intended employment are in HHS designated shortage areas

Service Center Adjudications of Change of Employer Petitions

§ Based on anecdotal information, TX, CA and VT Service Centers have routinely approved; Nebraska Service Center strictly scrutinizes

§ Alien’s own testimony is not enough – must submit 3^rd party evidence that the beneficiary should be excused from completing the employment K with the employer

§ FMG who fails to properly notify the Service of any material change in the terms and conditions of his H-1B employment shall again become subject to the 2 year requirement and also deportation

The Duty to Notify of Changed Circumstances

§ The FMG and her employer must notify BCIS of any material change in the terms and conditions of H-1B employment

§ The burden is on the FMG to cause the employer to file an amended or new petition in the event of a change in the terms of employment

§ Prior to approving a petition to change employers, BCIS may invoke its right to require the FMG to show that he or she attempted to cause the employer to file

Conflicts of Interest

§ The immigration attorney (IA) should advise the FMG and her employer to seek independent counsel, especially if the IA represents both parties

§ If both the employer and the FMG have acted in good faith, and the employer wishes to cooperate and support the FMG in the request for approval to change employers, the IA may be able to ethically represent both

III. Foreign Nurses: Recent Developments in Immigration Policy

Categories of RNs that Qualify for H-1B status

§ Nurses who are certified advanced practice registered nurses (APRNs), including (1) clinical nurse specialists in certain fields; (2) nurse practitioners in certain fields; (3) certified registered nurse anesthetists; (4) certified nurse-midwives

§ Upper level “nurse managers” or supervisory level nurses

§ Any RN in states that require RNs to hold bachelor’s degrees

§ RNs who have additional clinical experience are also eligible in some instances

Nonimmigrant Classifications

§ H-1C: reserved solely for RNs, but only underserved hospitals that receive attestations from the U.S. Dept. of Labor (DOL) pursuant to stringent standards may file NIV petitions under this category; 500 per year cap

§ TN: available to nationals of Mexico and Canada who enter the U.S. to temporarily “engage in business activities at a professional level”

§ H-1B: for “specialty occupations,” problematic because a bachelor’s degree isn’t required for a RN; if the nurse is a manager that has certification or experience so that the minimum qualifications are equivalent to a bachelor’s degree, then it may be useful

Immigrant Visas

§ Readily obtainable for most RNs

§ RNs qualify for Schedule A designation from the DOL, which recognizes professions that have an extreme shortage of available workers; therefore an employer can file an immigrant visa petition w/o first obtaining an approved labor certification from the DOL

Immigrant Visa Requirements

§ RN must have a nursing license in his or her home country and has to have passed either the CGFNS exam or the NCLEX

§ a minimum two-year diploma in the field of nursing

§ RN must obtain from CGFNS a “visa screen certificate” which ensures that the RN is proficient in English and the RN’s education, training, and licensure abroad are equivalent to that required for an RN in the U.S.

INS Policy Statement on H-1B Classification for RNs

§ Field Guidance Memorandum on Nov. 27, 2002 that reaffirms the INS’s position that most RNs aren’t likely to be eligible for H-1B status because nursing positions in the U.S. generally do not require bachelor’s degrees

§ Notes that certain “specialized” nursing occupations require a bachelor’s degree and thus qualify for H-1B status

Immigrant Visas for RNs Temporarily Unable to Obtain Social Security Cards

§ In the past, foreign RNs were required to become fully state licensed, which requires passage of the NCLEX, which is only offered in the U.S. and require a valid SSN

§ DOL no longer requires a “full and unrestricted license” for Schedule A certification and that certification will be given once an RN passes the NCLEX

Examinations

§ The National Council of State Boards of Nursing is negotiating to have the NCLEX administered internationally; will not be available outside the U.S. and its territories before Aug. 1, 2004

§ There are 2 new organizations offering English proficiency tests: the Test of English in International Communication and a test offered by the International English Language Testing System, which will be available in addition to TOEFL, the Test of Written English, and the Test of Spoken English

Concurrent Filing

§ On July 31, 2002 the INS issued regulations that provide for the concurrent filing of an employment-based visa petition and an application for AOS when approval of the petition would make an immigrant visa immediately available

§ This will allow the nurse to begin employment immediately upon being granted employment authorization, for which the nurse will be eligible pending the adjudication of the adjustment application

Proposed Regulation to Apply Visa Screen Certificate Requirement to NIV Applicants

§ October 11, 2002 – INS proposed regulations that would expand the current visa screen certificate (VSC) requirement to include most non-immigrants coming to the U.S. to work in healthcare

§ Current immigration laws require most foreign-born healthcare professionals to obtain VSCs from the CGFNS prior to obtaining immigrant visas

§ An RN will accordingly be required to present a VSC when applying for a NIV abroad, when applying to change nonimmigrant status while in the U.S., when applying to extend authorized stay in the U.S. and upon attempted re-entry into the U.S.

§ Impact will be extensive because it will profoundly affect the length of the application process for both IVs and NIVs