Physician Immigration

Boston, MAFebruary 16, 2011

Physician Government Agency Cases

•HHS Researcher Waivers•VA Hospitals•HHS Clinical Cases•State 30 programs•Delta Regional Authority•Appalachian Regional Commission

Basic Requirements•Position is in a shortage area – HPSA or MUA/MUP (except certain State 30 “flexibility” slots)•Three year commitment to work in H-1B status•40 hours per week in shortage area•Can be either primary or specialty medicine depending on program•Most states will now consider specialists

Other Requirements

•Accept Medicare, Medicaid and indigent patients

•Document recruitment

•Timing is important – can take several months to process

Conrad 30•States write their own criteria for their respective waiver programs

•Physicians must agree to practice at least three years in an area federally designated as having a shortage of health care professionals

•States may recommend up to 10 “flex” slots for FMGs who will work outside of a designated shortage area, but who provide services to patients residing in shortage areas

Flex SlotsNote that the several states have different criteria for the granting of “flex” slots

Ex. Minnesota: “…an application for a Flex waiver outside of designated shortage areas must contain documentation that the facility where the physician will practice has sufficient patients who live in designated shortage areas to support at least one Full Time Equivalent (FTE) physician of the specialty provided by the physician named in the waiver application.”

Other states require that certain percentages of the total patients served by the site must be from outlying underserved areasBefore pursuing a flex slot in a particular state, it is necessary to review the individual state’s policies for qualification criteria. TALK TO CONRAD PROGRAM DIRECTOR

Every state has different Conrad Program Provisions

•Different states have different timing cycles for receipt of applications

•Some states receive applications beginning on October 1 of the new fiscal year, or thirty (30) days in advance of the fiscal year

•States with excessive demand for Conrad waivers have criteria for qualitative rating of waiver applications. (Ex: Arizona)

Additional Conrad Program Provisions

• Some states provide for a preference for FQHC (Federally Qualified Health Centers), or a preference for primary care. After all FQHC requests and after all primary care requests are filled, then waiver applications for other types of employers and specialists may be filled.

• Some states require liquidated damage clauses of their J-1 waiver applicants

DRA Waivers•Primary Care and Specialists

•HPSAs and MUAs

•Must be in a DRA County in its eight state region

•Liquidated damages clause

•Fee-supported

•Fast and friendly

VA Waivers•Primary Care and Specialists•5/8 time at VA facility and 51% of time involves patient care•Strict recruiting requirements•Can’t be out of status for more than 30 days•Not available to trainees•Waivers for O-1s only after two years of employment•Central VA must approve first

HHS Clinical Case Waivers

•Primary Care only•HPSAs and only scoring 7 or higher•Community health centers, rural health clinics or Native American/Alaskan Native medical facilities•Rarely used

HHS Researcher Waivers•Elements of a labor certification, NIW and EB-1 petition

•Need to document recruiting efforts•Information on how the applicant is critical to the success of a research program•Documentation that the researcher is uniquely qualified

•Research must be “of interest” to HHS (grants, bench v. clinical research, etc.)

Moving Employees• Must show new position is in a shortage area (even if a FLEX slot)

• Must have a contract for the balance of the three years

• Must show there are extenuating circumstances justifying the transfer

Extenuating Circumstances•Examples

•Closure of facility•Personal hardship•Breach of contract•Forced violation of immigration law

•Mechanism for transfer – basic H-1B change of employer petition with required extra items•Good to get agency buy in from original sponsor

The 90 Day Rule•Physician must “agree” to begin work within 90 days of the J-1 waiver approval•Purpose was to prevent doctors from deferring starting their service and begin as soon as possible in their waiver jobs•May not be possible to start within 90 days because residency or fellowship not done•Not required to start within 90 days if there are legal impossibilities - contractually bound to another contract; no license; petitioner requested start date of July 1st

H-1B Visas•Must pay the prevailing wage

•Six year maximum

•Can be secured quickly

•Cap applies to many cases

•Portable unless previously had J-1 visa

The H-1B Cap•Most MDs exempt for their training programs•First position subject to the H-1B cap after finishing training will be where cap issue arises•Universities and Non-profit research facilities be exempt•Non-profits affiliated with universities or non-profit research institutions be exempt•Exemption based on location of employer, not who is signing the paycheck•Only one location needs to qualify if MD working at multiple places•Green card may be a feasible alternative

New H-1B Headaches •H-1B cap exemptions for teaching hospitals and other non-profits

• Neufeld memo

• Wage issues

• LCA rejections• ACWIA wage issues with Labor Department

Green CardsOption 1 – National Interest Waiver

Option 2 – Labor Certification

Note longer waits for Indian/Chinese nationals.

National Interest Waivers•5 year commitment

•Primary or Specialty care

•Shortage area

•Supporting agency

•Can apply for adjustment at start of processing

•Court case injecting new life into program

Labor Certifications•Test of the US job market

•Not exactly “real world”

•Usually successful

•Plus – need not be in shortage area

•Negative – slow, can’t complete process until J-1 time over

Questions to Ask Employers Addresses of all locations where the doctor will be working

Is the employer a not-for-profit? If not, will the physician work at any locations where the facility is owned by a not-for-profit company?

Are any of the locations where the doctor will be working part of a university or non-profit research hospital or connected in any way with a university or non-profit research institution?

If the doctor is working in a hospital setting, does the hospital have educational programs for nurses, medical residents or others?