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Meeting the Mandates of the Affordable Care Act -

The Qualified International Medical Graduate candidate

Presented by Farhad Sethna, Attorney, J.D., M.B.A.

DisclaimerDear Fellow Professional:

This presentation is only general legal advice on a verycomplex topic, and as such, is NOT intended to give youevery nuance, every pro-and-con, or a detailedevaluation of your specific situation or possible outcome.Please do consult me for a detailed assessment of yourspecific fact pattern and legal circumstances. Thank you!

And now - the last word from our shameless marketing department: 330-384-8000

Why Physician Shortages?Estimates of enrollment in the ACA:

a. Confirmed Exchange QHPs: 11,780,577 as of 4/10/15b. Estimated: 12.10M (9.22M via HCgov) as of 4/10/15c. Estimated ACA Policy Enrollment: 32.2M (10.64M Exchange QHPs, 8.35M OFF-Exchange QHPs, 330K SHOP, 12.9M Medicaid/CHIP); source: http://acasignups.net/

Other factors:

Physician retirement:

According to Modern Healthcare (Evans, Landen) – Jan 19, 2015:

Age: Percentage of specialty physicians aged 55 and over:

66 % of oncologists

60 % of psychiatrists

54% of cardiologists

52% of orthopedic surgeons

Finances: Improving stock market and investments make retirement feasible.

Estimated Physician shortages

Per estimates from the Health Resourcesand Services Administration:

In a recent study, by 2020, there will be a shortage of 20,400 FTEprimary care physicians

Source: http://bhpr.hrsa.gov/healthworkforce/index.html

HRSA study in 2011 estimated shortages in specialty practices:

Opthalmology: 6,000Orthopedic Surgery: 6,000General surgery: 21,400Urology, psychiatry and radiology: 4,000 in each discipline

Estimated Nursing ShortagesHiring will be greater in outpatient and ambulatory surgical centers, rather thanIn hospitals.

US will need an additional 1 million nurses by 2022

BLS predicts demand for RN’s will increase by 26% over 10 years by 2020

Source: Nursing Economic$, Feb 2014; Joanne Spet

Increasing use of Advanced Practice Registered Nurses (APRNs):

A study in North Carolina showed use of APRNs will eliminate the shortage of

OB/GYN’s and reduce the shortage of non OB/GYN doctors by 83%

APRN’s could eliminate 85% of the projected shortage of anesthesiologists

Source: http://www.forbes.com/sites/theapothecary (March 16, 2015)

How many more patients??!!HRSA – Health Resources and Services

Administration estimates that 32,000,000

(that’s 32 Million) U.S. Residents are eligible

for coverage under the Affordable Care Act.

If only 12-13 million have signed up so far,

that leaves 20 million more!

What does that mean?

It means the USA will need lots

more doctors and even more

nurses and still more support staff.

Where will they come from?

CompetitionIts no surprise:

Competition for primary care physicians and specialists is increasing!

Incentives:

-Signing bonuses-Educational loan repayments

-Increasing starting salaries by 10-20K (from base 190K)

Why not add another incentive:

SUPPORT, SPONSOR AND PROCESSIMMIGRATION APPLICATIONS FOR

INTERNATIONAL MEDICAL GRADUATES

Short Term Solutions

The Affordable Care Act increases Medicaid's Primary Care Payment Rates for 2013 and 2014. It also provides for training up to 3,000 new primary care doctors over the next ten years with incentives for service in Medically Underserved Areas and strengthening CHC's.

Adding more doctors(1) Add physician capacity at medical schoolsBUT: very costlyTime consuming – lead time to ramp up

(2) Add slots for residencies, especially in shortage specialties and primary careBUT: Congress needs to allocate Medicaid funds for additional residency slots; capped in 1997

(3) Reallocate unused residenciesACA attempts to do so

So – if we can't “Just Add Doctors” - what to do?

Solution: Add FOREIGN doctors!

International Medical Graduates (IMG's) are a highly skilled, vetted alternative

Passed USMLE / FLEX, state licensure

Passed Diplomate Boards in many cases

Motivated to work long-term for employer

Your immigration experience

How many are familiar with J-1 immigration status IMG's?

How many are familiar with H-1 immigraiton status IMG's?

How many have hired IMG's in the past?

How many have considered hiring IMG's?

What are your barriers to hiring IMG's?

Relevant Immigration Jargon

IMG: International Medical Graduate J-1: Exchange visitor immigration status –subject to 2-year home country residence requirement IGA: Interested (U.S.) Government Agency H-1b: Non-immigrant employment status PERM: Labor Certification process I-140: Immigrant Visa Petition NIW: National Interest Waiver “Green Card”: Legal Permanent Residentstatus (actually the card is now white)

How do I hire an IMG?Q: Where can most IMG's be found?A: Residencies and fellowship programs – attend job fairs, for example - CareerMD

Q: How can a hospital / practice group hire these IMG's?A: Immigration processes to get them a “waiver” if needed, and then their “work visas” and “green cards”. Two types of IMG's – those who need a waiver, those who don't.

Q: Why hire IMG's? Experienced, long-term

Is my IMG candidate qualified?

Things to look for - Does the IMG have a:

Foreign Degree (overseas residency too?)

Current US-medical position in J-1 or H-1?

USMLE, or FLEX exam passing certificate?

Medical license from any US jurisdiction?

Prior US medical professional experience?

Immigration Trivia # 1

Consider: Could Superman be considered an alien and be deported

under US Immigration laws?

Immigration Trivia # 1Answer: NO. INA § 301 - The following shall be nationals and citizens of the United States at birth:

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.

Superman can stay. Ma and Pa Kent would certainly not disclose the circumstances of his falling out of the sky. Besides, who'd believe them anyway?

Typical IMG ScenarioIMG successfully completes USMLE / FLEX exams and is certified to be competent in medicine. Enrolls in residency match programs. Is assigned a residency.

IMG enters the USA or changes status to J-1 or H-1b for residency program; completes residency.

IMG needs to secure employment post-residency – this is where you come in......

Typical IMG scenario – pg 2

IMG is J-1: will need a “waiver job” - why?Because J-1's typically have to return to their home country for 2 years to share their US-acquired skills. The 2-year home country residency requirement may be waived by suitable employment – the “waiver job”

IMG is already on H-1b: no need for a “waiver job”; transfer H-1b and go to work!

So, what is a “Waiver job”? What's a H-1b?

“Waiver Jobs”

In order to release the IMG from his 2-year residency requirement, the IMG has to serve for a minimum of three years in a Medically Underserved Area or Health Professional Shortage Area – that is a “waiver job”

A health-care provider company can petition for a waiver on the physician's behalf.

An Interested Government Agency can place the physician in a specific population.

H-1b work visas

Legal work authorization only for a specific employer. This status is issued by USCIS and limited to three years + another 3 years.

This status or conversion to this H-1b status is generally used by physicians who are:(1) already on H-1b status;(2) on J-1 status which is NOT subject to the two-year home residency, OR (3) on J-1 status where the home residency has been waived

H-1b Basics Professional employment - up to 6 years

Minimum of a Bachelor's degree

Payment of Prevailing Wage (LCA)

Premium Processing option – 14 days

Extension of H-1b - priority date backlogs

H-1b cap – what is it?

Cap and Non-cap H-1b's – Waiver positions are non-cap; non-waiver positions are capped; if IMG already has a H-1b through waiver job, the IMG is NOT subject to cap.

Waiver v/s Non-Waiver IMGWaiver needed Job in MUA/HPSA Contract terms Waiver w/DOS Conrad-30 w/State H-1b with USCIS PERM or I-140 Adjustment of

Status (Green card)

No waiver needed Verify IMG's status File for new H-1b PERM or I-140 Adjustment of

Status (Green card)

Limits on waiver placementJust any physician position will not qualify as a “waiver job”. The law specifies that only physician positions of primary care – that is – Family Practice, General Internal Medicine, Obstetrics/Gynecology, General Pediatrics, Combined Internal Medicine / Pediatrics and General Psychiatry qualify for waivers.

The location must be a MUA / MUP / HPSA / IGA other qualified “waiver” employment.

MOOUAA or HIPSAA?

To qualify for a Conrad-30 waiver, the physician must work in a MUA / HPSA. How do I know if my hospital / clinic qualifies?

http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx

And enter your facility's address – its' simple!

For non-Conrad-30 waivers, visit the IGA's - example: http://www.arc.gov/j1visawaiver

What are IGA's?

Interested Government Agencies are those authorized to hire a IMG subject to the 2-year home country residency requirement. At the end of the qualifying employment, the requirement is waived, and the IMG does not have to return to the home country.Current IGA's hiring IMG's are:

Appalachian Review Commission Veterans' Administration Health and Human Services

Modified HRSA screen shotState: Ohio; County: Summit CountyID: All; Date of Last Update: All DatesDiscipline: Primary Medical Care, Mental HealthResults: 13 records found.

153 - Summit CountyLow Income - Southeast Akron 139999391B Population Group C.T. 5031.00 Census Tract C.T. 5032.00 Census Tract C.T. 5033.00 Census Tract C.T. 5034.00 Census Tract C.T. 5035.00 Census Tract C.T. 5038.00 Census Tract C.T. 5089.00 Census Tract Akron Community Health Resources, Inc. 139999391T Comprehensive Health Locust Pediatric Care Group139999392I Other FacilitySumma Internal Medicine Center 13999939A2 Other FacilityAkron General Medical Center - Internal Medical Ctr 13999939A9 Other FacilityAkron Community Health 7399993977 Comprehensive Health Center

Immigration Trivia # 2

Which famous music star did the US government try to deport in

the early 1970's?

Immigration Trivia # 2 - AnswerJohn Lennon. In 1972, he and his wife, Yoko Ono, had

been living in New York for a year, and they wanted to stay. But it was also the year President Nixon was running for reelection. Opposition to the Vietnam War was high, and Lennon and Ono often showed up at antiwar rallies to sing "Give Peace a Chance", and to tell their fans that the best way to give peace a chance was to vote against Nixon.

The Nixon White House responded by ordering Lennon deported. The administration said Lennon had been admitted to the country improperly. He pled guilty to a misdemeanor charge of cannabis possession in London in 1968, and immigration law at the time banned the admission of anyone convicted of any drug offense.

The “Conrad-30” programIMG's look for private employers or not-for profits who can employ J-1 restricted IMG's under the “Conrad-30” program.

-Up to 30 waivers per fiscal year per state-Physician must serve in a MUA/HPSA-Primary care for a minimum of 3 years

Some states allow non-primary care, non-HPSA positions to qualify (Ohio does!)

A Win-Win Situation

The Conrad-30 waiver is a boon for states who may be struggling to find physicians to serve at-risk or economically depressed populations. Institutions and communities benefit from having a physician; the physician benefits from receiving a waiver and not having to spend 2 years in his or her home country. It is a win-win situation for all.

Restrictions of a Conrad waiverIndividual states are allowed to set their own requirements for a Conrad-30 waiver position:

Filing fees

Specific clauses in employment contracts

Reserve some waiver positions for non-primary care (ie, specialists) or non-HPSA/MUA employment (Ohio is wonderful!)

Step by Step

ACTION Selection of IMG File DOS waiver Prepare and file

State application Prepare and file

USCIS H-1b USCIS matches H-

1b with DOS reco.

EFFECT Prepare contract Get waiver number Receive approval of

State application Prod DOS to issue

recommendation H-1b status for max

3 years approved

Immigration Trivia # 3

True or False? Just by being present in the USA on or before January 1, 1972, you could get a

“green card”

Immigration Trivia #3 - Answer

TRUE. The process of “registry” grants permanent residence (ie, a “green card”) to

any non-US citizen who has been in the USA since before January 1, 1972. Subject, of

course, to certain restrictions and safeguards.

Timeline for Conrad waivers

The various processes combined with the shortage of state slots (some states exhaust their quota very quickly) could lead to disappointment if an application is not filed in time. Therefore, it is recommended that an IMG and an employer start the Conrad-30 waiver process at least 10-12 months BEFORE the IMG's residency will conclude. Start in May-June of the second year of the physician's residency.

Conrad-30 Specifics

Conrad 30 Waiver requirements (Ohio only)

DOS waiver application number Filing fee - $ 3,571 Application form Letters of support Attestations from employer Contract provisions – Three years; 40 hrs/wk; start w/in 90 days; No non-compete or Termination w/o cause; Binding arbitration Evidence of recruitment of US physicians

Typical time for processes DOS J-1 waiver application – remains pending till state grants waiver slot

State Conrad 30 filing – generally more prompt (1-3 months) if no changes required

USCIS H-1b – 1-3 months, sometimes can be expedited using “premium processing” (ie, pay additional fee to USCIS)

An IMG receiving a Conrad-30 waiver MUST work for at least three years in H-1b status

How long for the “Green Card”?It depends on how many applications are “in the pipeline” before your physician's. This is due to a limitation on the number of immigrant visas allocated every year, under the Immigration and Nationality Act. The Department of State publishes the dates that individuals are eligible to apply for or will receive “Green Cards” ever month. This is called the “Priority Date” chart. Here is a recent example (Employment Based)

Category All Areas CHINA INDIA MEX PHILIPP

1st C C C C C 2nd C 1APR11 1SEP07 C C

3rd 01OCT14 01JAN11 08JAN04 01OCT14 01OCT14

Source - US Dept of State – Visa Bulletin – April 2015

Recall: H-1b work visasRecruited a new non-citizen physician? This status is issued by USCIS and limited to three years + another 3 years.

This status is generally used by physicians(1) already on H-1b status;(2) on J-1 status which is NOT subject to the two-year home residency, OR (3) on J-1 status where the home residency has been waivedOK – now you have the H-1b – what's next?

Immigrant visa – “green card”

So now your IMG has a H-1b; what's next?

What is an immigrant visa?

What were the visas that we just heard about?

Why do we now need another visa?

Immigrant v/s Non-immigrant categories

Categories of immigrant petitions

Routes to immigrant visas

Immigration Trivia #4

Is the “Green Card” actually green?

Immigration Trivia # 4 - Answer

No. Currently, its white.A brief history:

1940's - form AR-3 Post-WWII – actual green card, form I-151 1964: pale blue 1965: dark blue 1977: new, I-551 “secure” Green Card 1990's – light pink hue Today: white, laser etched security, photo,

hologram, and magnetic data stripe on back

PERM and beyond

(No, this is NOT your mother's hairdo)

File PERM application with DOL

Requires: advertisement; recruitment; good faith job opening to US workers; preparation of recruitment results to US DOL; e-file form ETA 9089; expect audit (currently 80%+)

Once PERM is approved – file I-140 Immigrant Worker Petition with USCIS, and

If priority date is current, file for “Green Card” Adjustment of Status (AOS) as well

Dollars and Sense

Who pays for the processes?

The typical employer pays for the Conrad-30 state waiver or IGA waiver (if needed)Employer MUST pay for H-1b filing feesEmployer MUST pay for the PERM process legal fees and expensesEither party can pay for the I-140 and AOSTwo attorneys – not a problem – each party can pay for their own.

Recap

Many applications:

DOS waiver (only if necessary)

State Conrad 30 application OR

H-1b application if no waiver needed

PERM application or National Interest Waiver (EB-2) or even (EB-1) application for highly qualified specialists

Immigrant Visa Petition

Adjustment of Status (Green Card)

Nurse ImmigrationAdvanced Practice Registered Nurses can help alleviate the demands created bythe ACA.

Must be certified Nurse Practitioners. RN’s typically DO NOT qualify for H-1b.

May or may not be subject to H-1b cap depending on employer.

Since coming to USA for nursing training, usually on F-1, not J-1, so notsubject to the 2-year home country residency requirement

Since not physicians, do not require Conrad-30 waiver

Can apply for and obtain H-1b, then use Schedule A, Group I for immigrant visa “Green Card” application (NOTE: NO PERM required, since nursing is considered a shortage Occupation – along with Physical Therapists!)

Immigration Trivia # 5

Were all the signers of the Declaration of Independence born on US territory?

Immigration Trivia #5 - Answer56 men signed the Declaration of Independence Eight were born outside the Colonies:

John Witherspoon, born in Gifford, ScotlandJames Wilson, born in Carskerdo, ScotlandMatthew Thornton, born in IrelandGeorge Taylor, born in IrelandJames Smith, born in Northern IrelandRobert Morris, born in Liverpool EnglandFrancis Lewis, born in Llandaff, WalesButton Gwinnett, born in Gloucester, England

Let's clear it all up!Your Q, My A

Farhad Sethna, AttorneyLaw Offices of Farhad Sethna

141 Broad Boulevard, Suite 101Cuyahoga Falls, OH 44221

(330)384-8000fsethna@immigration-america.com

www.immigration-america.com

How can I improve this presentation?Please email me your suggestions!

Audience Q & A # 1

Q: My IMG employee asks - At what point will the hospital start the process of the “green card” for me?

Q: My IMG employee asks – will you help me (i.e., pay for) my family's immigration?

Q: My IMG employee asks - I have to travel outside the USA – will you issue me a letter confirming my US employment?

Audience Q & A # 2

A typical case scenario:

Let's say an internal medicine physician with an H-1b visa is finishing residency at a major hospital and is looking for a job with a community hospital upon completing. Canthe community hospital recruit this physician or not? What questions should the recruiter ask the physician?

Suggestion: When in doubt, ask an expert!

Audience Q & A # 3

Advertisement is a subject of mystery for recruiters. When do we start advertising and what is needed?

Example: Let's say we have beentrying to recruit an Internal Medicine doctor for a year and we meet one at a job fair who has an H1b visa. However you never put anadvertisement in the paper for the job. Can you proceed?

Thank you for attending!

Farhad Sethna, AttorneyLaw Offices of Farhad Sethna

141 Broad Boulevard, Suite 101Cuyahoga Falls, OH 44221

(330)384-8000fsethna@immigration-america.com

www.immigration-America.com

How can I improve this presentation?Please email me your suggestions!