 |
|
 |
 |
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
J-1 Issues within a Graduate Medical Education (GME) Context
June 2004 Immigration issues for physicians do not take place within a vacuum, but rather are closely related to National Healthcare Policies and Priorities. At present, there are roughly 796,210 practicing physicians / residents within the United States 1 including approximately 96,400 physicians engaged in Graduate Medical Training (GME)2. Of this figure, there are roughly 8,900 J-1 physicians 3- i.e. foreign physicians pursuing programs of Graduate Medical Education (GME), which, as noted below, is a prerequisite for obtaining medical licensure in the United States. Previously, the prevailing perception was that the national healthcare system on a macro level had an overabundance of physicians with only pockets of shortages occurring from the physician maldistribution patterns that were limited largely to rural America and inner-city communities 4. Under this model, the goal of physician workforce planning would be to limit the number of new entrants into the field while better rationalizing the delivery of physician services through a managed care model which would enhance the numbers of primary care physicians so as to serve broader numbers of patients.5 As a consequence of this perception, various measures were taken not only to limit the population of physicians, but to tightly constrict the employment and immigration opportunities for foreign physicians, including downward pressures on the numbers of International Medical Graduates (IMGs) admitted into programs of GME. Our whole notion of national needs for physicians has shifted radically. The growing perception today is that the United States suffers and will continue to suffer from a shortage of physicians. The Council on Graduate Medical Education (COGME) 6 anticipates a shortage of 85,000 physicians by 2020.7 This represents a dramatic reversal of its previous estimations.8 Similarly, the American Medical Association recently noted a shortage of physicians and has called for an expansion in the nation’s physician workforce.9 A survey of medical school deans resulted in an 80% consensus on a stark shortage in physicians.10 The Bureau of Health Professions of the Department of Human Services (HHS) estimates that 3,400 physicians are immediately needed to address current shortfalls in non-metropolitan Health Professional Shortage Areas (HPSAs) and that 7,000 are required to meet reasonable workforce targets in these areas.11 If the current numbers of family practice graduates returns to minimally acceptable levels (they are currently at 1997 levels), the density of family practice physicians in rural America and in the U.S. overall will decline after 2010.12 One study predicts that by 2020, the nation will need 200,000 physicians in order to meet patient demand. 13 The reasons for this radically changed attitude on the desired quantity (or, more specifically, the appalling shortage) of physicians are well beyond the scope of this paper. Suffice it to say that the physician workforce shortages, in general, are tied to factors such as the presence of younger physicians in the workforce who maintain less driven work patterns;14 a move away from managed care delivery models;15 a stagnation in physician compensation levels with the result that the potential applicant pool is increasingly turning to endeavors other than medicine, such as careers in high technology or entrepreneurial ventures; concerns with rising medical malpractice liability insurance costs and perceived need for tort reform, coupled with high levels of medical school debt;16 the aging nature and imminence of retirement of many physicians working in rural areas;17 the declining interest in primary care specialties among medical students (especially in rural areas); the disincentives of practice in rural communities, including social and professional isolation, the availability of better hospitals and technology in cities, the flight to urban affluence, and a general decline in primary care practitioners;18 and a decrease in job satisfaction in the physician workforce, thereby apparently leading to downward pressures on the number of new entrants into the profession and eroding the numbers of medical practitioners remaining in practice. 19 What all these factors seem to counsel is an overall need for an increase in the number of physicians, and there is no more readily available source of physicians than the International Medical Graduate (IMG) community. However, prior to becoming employed as a physician in the U.S., the foreign-trained physician needs to complete periods of prescribed residency and/or clinical fellowship training – generally referred to as Graduate Medical Education – in order to qualify for medical licensure, which is a prerequisite for medical practice. This article focuses on immigration issues pertaining to Graduate Medical Education (hereinafter: GME), which refers to the post-M.D. period intended to prepare a physician for practice in a medical specialty.20 GME focuses on the development of a physician’s clinical skills and professional competency and on the acquisition of detailed factual knowledge in a medical specialty. GME (i.e., periods of residency and clinical fellowship) is uniformly required for medical licensure and American Specialty Board Certification. Traditionally, there has been little dialogue between the immigration bar and GME program directors. We would submit that the timing of this article is particularly necessary and appropriate for the following reasons:
The overall role of IMGs in GME programs has been a subject of controversy for a variety of reasons, running from concerns of a “brain drain” of foreign elites from their home countries and a belief that IMGs would flood an already over-populated physician workforce, to acceptance of the essential role IMGs play in meeting the needs of underserved populations. Reflective of these concerns, COGME, the legislatively created "Blue Ribbon" advisory panel to the Secretary of Health and Human Services, recurrently examined the desired role of IMGs in GME. Although COGME’s charter expired, its report in October 2003 seemed to signal a major shift in policy from its previous position calling for a curtailment in the numbers of foreign trained physicians to recognizing a major growing shortage of practitioners in the workforce which would suggest an increased need for IMGs.21 In this regard, it is worth noting the development of COGME’s position on the role of IMGs in physician workforce planning:
While the earlier COGME proposals fortunately were never adopted and were ultimately largely disavowed by the organization in its final reports, the sentiment expressed above reflected a prevalent attitude of ambivalence toward International Medical Graduates seeking to pursue advanced graduate medical training in the United States. It is therefore a matter of importance to note COGME’s final statements, which endorsed a substantial expansion in the physician workforce, which could include an increase in the number of training slots at U.S. programs, a recalibration of the physician workforce from an emphasis on primary care medicine to a growing endorsement of the need for more specialty care doctors, and an acceptance of the role of IMGs in addressing the emerging shortages in the physician workforce. Role of Graduate Medical Education (GME) Graduate Medical Education (GME) prepares physicians for practice in the United States. GME programs are based in hospitals, clinics, healthcare facilities, or institutions with or without medical school affiliations. Most patient care programs are overseen by the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO). Accreditation of specific GME programs is issued by the Accreditation Council for Graduate Medical Education (ACGME) through its associated Residency Review Committees (RRCs) for medical specialties in conjunction with the relevant American Board of Medical Specialties (ABMS). The RRCs for accredited programs monitor the quality and training commitment of each program through regular site visits. Although voluntary as a functional matter, accreditation is highly desirable so as to establish that the GME program is being conducted under appropriate professional standards as recognized by the medical community. GME programs provide graduates with an organized educational program under the supervision of attending physicians aimed at developing the physician's skill through a course of progressively more independent responsibility for patient care. Programs vary in duration, accreditation, quality, and remuneration. Programs are not to rely on residents to meet service needs, but are to provide structured training and education. However, particularly in inner city and rural communities, medical residents play an important role in service delivery, particularly to the indigent and medically underserved. Programs that use residents for coverage of service needs at the neglect of genuine training will face disciplinary actions that can result in the loss of accreditation. A training program can provide much needed patient care at lower cost to the hospital because most residency positions are subsidized by the government at approximately $150,000 to the institution per trainee. Roughly 36% of patient service revenue in an average GME program comes from reimbursements from the Medicare Trust Fund, thereby providing the federal government with considerable leverage over many elements of GME, including the size, scope, and duration of a physician’s program. 27 A physician enters a program of training to prepare for practice in a medical specialty that typically culminates with recognition by a specialty board or society. Program durations range from three years for programs like Internal Medicine to eight years for advanced training like Thoracic Surgery. Super-sub-specialty training can extend for even longer periods. J 1 limitations of 7 years and H-1B limitations of 6 years provide major constraints to nonimmigrant IMG trainees in their opportunities to specialize. Many academic medical centers are offering training programs that diverge from the minimal requirements of the specialty boards. Many core academic programs are standardizing additional research training in durations of up to 24 months beyond the board requirements. In addition to academic and clinical specialty centers, such as cancer institutes, some offer specialized programs classified as Non-Standard. Clinical training in an academic context has long included numerous non-standard programs that have a narrower subspecialty focus stemming from the clinical faculty’s expertise and research. Typically these are programs in emerging areas of medical specialization that are not yet recognized by an RRC. Such programs include specializations in Alzheimer’s disease and dementia, cardiovascular anesthesia, congenital heart surgery, and others. Non-Standard programs frequently stem from accredited core programs, but are not as yet ACGME accredited and may never seek to be accredited. Such programs often intersect with basic science programs in such areas as genetics, molecular biology, virology, immunology, and neuroscience. Non-Standard programs are translational in structure, integrating basic research and clinical practice such as molecular cardiology, gene therapy, neuropsychiatry, etc. Owing to the complexity of the subject matter, subspecialty programs often require research and scholarly components to foster a "questioning attitude”, to develop protocols of critical analysis for new therapies.28 One result of this integration can be the prolongation of training in order to complete research projects or develop new technologies that exceed the time limits allowed by immigration visa classifications available to IMGs. While GME requirements for licensure differ from the requirements for board certification, most state boards require at least one year of GME before issuing a license to practice. All states require a written exam for licensure that is currently known as the U.S. Medical Licensing Examination (USMLE), although Canadian educated physicians are largely exempted from this requirement for licensure purposes. The current USMLE is a three-part exam with Step 1 testing basic sciences; Step 2 clinical science; and Step 3 practice encounter situations. An overhaul of the USMLE is being phased in starting in 2004, and the reengineered exam will include clinical skills assessments for all U.S. and International Medical Graduates. USMLE’s new design will divide Step 2 into Step 2 CK (clinical knowledge) and Step 2 CS (clinical skills) thus creating a four-part exam in three Steps. At present, only IMGs are required to take and pass the ECFMG Clinical Skills Assessment (CSA) as part of their four examination components of ECFMG Certification. The new USMLE design will require U.S. graduates to take a clinical skills exam. Steps 1 and 2 will test the graduate’s readiness for training, and Step 3 will test a graduate’s readiness to practice. While Step 3 is normally taken after completion of the first year of residency, thirteen states will allow a physician to test for Step 3 without any previous GME in the United States.29 Step 3 is often a required credential in order for a physician to gain a full and unrestricted state medical license. (Note that all states require Step 3, but some states will accept retired exams when a physician licensed in one state seeks a license in another.) Within an immigration context, Step 3 is a required credential for all physicians, including those from Canada, in order to qualify for an H-1B visa for clinical medical purposes. Alien physicians that graduate from U.S. medical schools are eligible for H-1B status without Step 3. Visa Options for GME Purposes As noted above, GME involves a rich mixture of employment, training, and education. There are a number of temporary nonimmigrant visa classifications that will cover a physician engaged in GME activity:
J-1 Exchange Visitor Program The J-1 Exchange Visitor Program was implemented to fulfill the spirit of the Fulbright–Hayes Act,35 and it is important to bear in mind that the program is strictly intended to foster international exchange, not immigration, and therefore is designed for physicians to return to their country of origin. All the J-1 Programs are governed by the U.S. Department of State (DOS) through the Bureau of Educational and Cultural Affairs within the Office of Exchange Coordination and Designation. As a result of the enactment of the USA PATRIOT Act,36 the federal government designed and implemented the Student and Exchange Visitor Information System (SEVIS), which is an internet-based database enabling both programs and the government to track international students and scholars entering in J-1 (or F-1 or M-1) Programs. The SEVIS system is designed to allow the U.S. Consular Officers, inspectors at U.S. ports of entry, and adjudicating officers of the Citizenship and Immigration Service access in real-time to salient points related to the eligibility of a foreign national to participate in a J-1 (or F-1 or M-1) Program. Enrollment in SEVIS became mandatory on August 1, 2003. Within the eleven J-1 categories are actually two program categories of the J-1 Exchange Visitor Program of relevance to the physician community. The first category is the Alien Physician Program as established solely for the purpose of GME and managed by the ECFMG, with whom all physician training programs must interact.37 The second is the Research Scholar/Professor Program as established solely for the purpose of observation, research, or teaching involving incidental clinical patient care. The latter is a program managed directly by institutes of higher education, typically through a university or medical school. 38 J-1 Alien Physicians engaged in clinical training programs – i.e., GME – require the sponsorship of the Educational Commission of Foreign Medical Graduates (ECFMG). The ECFMG is the central institution for assuring the eligibility of training programs of foreign physicians. Established in 1956, the ECFMG was created by the medical community to assess the professional capabilities of foreign medical graduates.39 With the enactment of the Health Professionals Educational Assistance Act (HPEA)40, the ECMFG received the exclusive designation to administer the J-1 Exchange Visitor Program for the Alien Physician category for GME purposes. The ECFMG is answerable to the Exchange Visitor Program Branch within the Educational and Cultural Affairs Section of the Department of State. The ECFMG is sponsored by the following seven national organizations: the American Board of Medical Specialties, the American Hospital Association, the American Medical Association, the Association of American Medical Colleges, the Association for Hospital Medical Education, the Federation of State Medical Boards, and the National Board of Medical Examiners. 41 The ECFMG performs the following immigration-related services: 1) verifying the medical school graduation status of foreign physicians who wish to enter accredited residency training programs; 2) administering the USMLE exams abroad and CSA exams within the United States; 3) certifying prerequisite requirements of non-Canadian educated foreign physicians to train for the practice of medicine in the United States; and 4) administering J-1 Exchange Visitor Program for J-1 physicians engaged in GME. 42 Home Country Concurrence Letter In order for ECFMG to issue a DS-2019 form, the physician needs to present a home country concurrence statement, among other documents. This letter from the home country’s Ministry of Health must specifically confirm the need for physicians trained in the medical discipline and that the physician has filed written assurance that he/she will return to the home country to serve in that field for, at minimum, two years. Some governments will only issue the core specialty letter covering the period of primary care training and will not issue the subspecialty letter until the physician completes training in the core program. Other governments list specific expiration dates. Canada has selectively issued Ministry of Health letters and has recurrently chosen not to issue letters for core training in internal medicine, pediatrics, surgery, and anesthesia. However, in general, Canada has issued such a letter for specialty and sub-specialty programs. Duration of J-1 Alien Physician Program The duration of a clinical J-1 Program is limited to the time typically required to complete the training, or up to seven years. The specific durational limits are consistent with program requirements established by the American Specialty Boards, as endorsed by the Department of Health and Human Services.43 Extensions beyond the normal durational limits are allowed by regulation for GME purposes (as opposed to sitting for specialty board certification) only if the alien’s home country has an “exceptional need” for an additional period of training. Practically, exceptional need extensions are difficult to obtain. Accordingly, to obtain an extension beyond the seven-year limit, the J-1 applicant cannot merely state a personal need for an extension, but rather must indicate how the additional time will satisfy crucial practice needs in the home country. A single specialty program change within the seven years is allowed, for example a change in specialization from family medicine to surgery, provided that it occurs within the first two years of commencing a program.44 However, such changes will impede the applicant’s chances of receiving favorable consideration for extension requests beyond seven years. Section 212(e) Two-Year Home Country Physical Presence Requirement Any physician entering GME under an ECFMG sponsored program becomes subject to the two-year home residence requirement, regardless of the country of nationality or last residence.45 While ECFMG also sponsors certain non-clinical visitors for observation, teaching and research, who may not be subject under 212(e), the J-1 alien physician is subject to 212(e) from the point of admission or change of nonimmigrant status. Furthermore, J-1 clinical physicians are to be barred from a change of status as long as they remain subject to the two-year home residence obligation, and under INA § 248.2 continue to be barred unless their waivers are based on clinical service in designated medically underserved areas or VA facilities. 46 Moonlighting The J-1 Clinical Program as administered by ECFMG identifies that training, rather than productive employment, needs to be the primary objective of the J-1 physician’s program. J-1 activities, whether paid or unpaid, are limited to approved training within the structure of an official training curriculum and are intended to enhance the physician’s skills in the field of specialty. In this context, the ACGME defines limits of employment activities within standard accredited residency and fellowship programs. While exact hours are not always specified on a weekly basis, the ACGME has placed increasingly rigid limits on permissible on-duty hours and thus curtails employment-oriented services. In addition, the types of rotations (e.g. emergency room, dermatology clinic, pediatric otolaryngology clinic) are fairly standard within each medical specialty. Given that there is some flexibility and risk in defining the number of allowable employment hours, the sponsoring program should outline and gain approval from institutional counsel and risk management before expanding employment hours in a program. For the non-standard fellowships stemming from accredited programs, the training director must outline to the ECFMG the total scope of training activity that will be offered to the physician. Previously, the ECFMG required written descriptions of any additional activities (paid or unpaid) for its review and approval. However, this is no longer encouraged, and ECFMG has sent numerous memos to Training Program Liaison Officers reminding them that employment is strictly limited to the approved training program. This raises the issue as to what employment activities are authorized within the scope of the physician's J-1 Program. This issue has major significance since a physician's unauthorized employment would be a violation of status, which may trigger a termination of the program, and given the demise of Section 245(i), may prohibit adjustment to permanent resident status, as well as result in employer sanctions exposure. A J-1 Exchange Visitor may receive compensation from the sponsor or the sponsor's appropriate designee for employment services when such activities are part of the authorized Exchange Visitor Program.47 Conversely, a J-1 physician who engages in unauthorized employment shall be deemed to be in violation of program status so as to become subject to a termination of the program itself. At the outset, it is clear that the scope of employment activities by J-1 physicians needs to be included within the overall description of activities as submitted to ECFMG for approval. A well-rounded program of GME would, of necessity, include stipulated employment activities in order to provide practice encounter experience as part of medical training. However, this does not provide the program with unfettered flexibility to authorize a physician's employment, particularly if the nature of the employment is unrelated to the physician's medical specialization. In determining the allowable parameters of lawful GME employment activity, we submit that a threshold consideration would be whether the employment services are performed within the sponsoring teaching hospital or an affiliated institution or whether they are rendered for an entirely separate medical facility, which would normally be the emergency room at a hospital during odd or weekend hours. While employment within the authorized J-1 institution will not in and of itself establish the legitimacy of the employment activity, it is an important consideration in developing the nexus between employment and the ultimate training function. Among the other factors that could be considered for lawful employment purposes, as opposed to moonlighting activity, would be:
The duration of the J-1 alien physician program is seven years in progressive training or the period of time normally required for the training purposes, per stipulated guidelines set by the relevant American Board of Medical Specialties. The major issues pertaining to J-1 extensions include: The "exceptional need" standard for extensions beyond seven years; Given the growing complexities in the field of medicine, it is not unusual for a physician to seek J-1 extensions beyond the normal durational limit of seven years. Generally, such extensions beyond the seven-year authorized period of time are necessary if the physician has spent time engaged in research or wishes to pursue a medical sub-specialization. Many standard combined programs, nonstandard, or particularly complex medical disciplines require more than a seven-year period of training, particularly given the necessity of incorporating periods of research into an appropriate training curriculum. For example, a full program of interventional cardiology takes eight years to complete; a program in infectious diseases requires a nine-year period of training; a program in pediatric leukemia requires eight years. Most specialty surgery programs (i.e., thoracic surgery, pediatric surgery, etc.) cannot be accomplished within a seven-year period of time. The operative standard for extensions beyond the seven-year limit is whether the physician's home country has an "exceptional need" for a physician with this additional professional training. It is important to note that the “exceptional need” pertains to the home country's needs, rather than the personal needs of the physician. “Exceptional need” is not defined within either the statute or the regulations. It appears that the Department of State has in the recent period sharply raised the threshold standards for showings of exceptional need, so as to functionally eliminate the possibility of training beyond the normally accepted seven-year period. The burden is clearly on the home country to establish the existence of exceptional need and on the J-1 physician to show a continuing intention to depart the United States for the home country at the conclusion of the training. Program Extensions During or Outside of the 30-Day Grace Period The authorized period of J-1 status is the period of time appearing on the alien’s DS-2019 form plus an additional 30-day period of non-employment authorized status. Very often, delays occur when moving from basic to subspecialty training, specifically in acquiring the home country support letter, or due to complexities in the credentialing process or problems in gaining program admittance. In such instances, the extension request may not get filed until the physician is in this final 30-day “grace” period of status. When such delays occur or when a J-1 physician falls out of status due to circumstances beyond their control, or due to neglect on the part of the program sponsor, remedies are available. Effective August 1999,48 ECFMG and other J-1 programs have been granted the discretion to “correct the record” of minor technical infractions without formal reinstatement, provided that no more than 120 days have elapsed since the infraction. Extensions for Non-Boarded Specialty There have now evolved many new areas of medical specialization. In many instances, these new medical disciplines have not created their own recognized Specialty Boards, which raises the issue as to the normal period of time required for training purposes. This is a critical issue since the durational limits are directly linked to the periods normally recognized by the relevant Specialty Boards. The burden is on the Program Director and the physician to justify the J-1 Program for a physician entering a non-Boarded period of training. The current policy within ECFMG for issuance of a DS-2019 form for this type of training is to establish: That the training stems from the ACGME accredited program; That the institutional committee on Graduate Medical Education and Training has reviewed and approved the program; Extension Requests with a Pending J-1 Waiver Application In many instances, the J-1 physician will file an extension application while a J-1 waiver application is pending. Given the fact that the dual intent doctrine does not apply to J-1 purposes, there had been considerable concern that a pending waiver application would reflect upon an intention to remain in the United States, thereby undercutting the nonimmigrant intent as required for J-1 extension purposes. The Department of State, however, has continued the policy as initially articulated by the USIA of authorizing J-1 extensions up until the point at which the waiver application has received a favorable recommendation from the Waiver Review Division (WRD) of the Department of State. Conversely, the mere filing of a waiver or, following an initial recommendation, a pending but unadjudicated waiver with the Department of State will not be considered as a negative factor for J-1 extension purposes.50 Unquestionably, the filing of a waiver application needs to be divulged on the alien’s extension application, but the mere filing of a waiver will not constitute grounds for denying the extension request. Extensions for Board Examination Purposes While the normal durational limits are set at seven years or the period normally required for completion of a Board Certified Program, it is possible for a J-1 physician to gain an extension of status in order to sit for the American Board Examination.51 A Board Examination is an important professional credential that attests to a level of competence by a physician within a given medical specialization. Board Certification is a widely used requirement for employment purposes in that it impacts heavily upon premiums for malpractice insurance and reimbursement. Therefore, in recognition of the role of Board Certification, a J-1 physician may obtain an extension beyond the period of training duration in order to sit for the relevant American Specialty Board. This extension does not include employment authorization, but limits the authorization of a J-1 physician solely to preparation for the Board Examination. In order to gain this extension, the physician has to apply directly to the ECFMG with evidence of the exam registration, identifying that the program purpose is to sit for the relevant Board Examination, that the physician has adequate financial resources, and that he will maintain health insurance. Extensions are normally granted for periods of no more than six months. Non-Clinical J-1 Programs J-1 Research and Teaching Programs are also a means of acquiring post-graduate training in a non-clinical context. In contrast to the ECFMG, the institutional medical programs can also sponsor a physician in J-1 status for non-clinical purposes under the Research Scholar, Professor, or Short-Term Scholar categories. However, there exists some ambiguity within the regulations that govern exchange physicians’ activities. This area of ambiguity may allow some amount of exposure in a clinical context. Participation in this context is governed by the following five criteria:
Clinical exposure in a program under these regulations has been widely interpreted, although as a practical matter, issues of liability cause most non-clinical program sponsors to interpret the guidelines as meaning little or no hands-on clinical care. In short, this non-clinical branch of the J-1 Program deprives a physician of the core objectives of the GME experience, which is clinical and practice management experience and fulfillment of state licensing and/or medical specialty board requirements. The last category of relevance is the short-term J-1 scholar program that allows up to six months of research before or after the GME training. Research experience is typically sought by an IMG to “audition” for, or enhance the eligibility of admission to a training program. The short-term J-1 program is also available for six months beyond the approved length of training for an unfinished research project. The short-term program is also only available through readmission to the U.S. from abroad, and is limited to six months without the possibility for an extension. This program is not subject to the 12-month 22 C.F.R. 62.20 bar to readmission for repeat visits, in contrast to the three-year scholar program, and therefore is a vehicle for “serial visits”. Such repeat visits may offer sufficient research time, but they present the risk of visa delays with each new six-month visit without triggering a 12-month bar of inadmissibility. 53 Change of J-1 Category IMGs seeking an advantage in the selection process may decide to pursue a research project before entering a GME program. Physicians who choose a program of research that exceeds 6 months may attempt to change J-1 categories – from research to clinical training – within the United States. Applications for a change of category are submitted to ECFMG and forwarded to the DOS for review. The criteria for a change of category are similar to the “exceptional need” standard in so far as the physician must show strong support and home country justification to delay a return to the home country. Upon approval, the alien physician is given the ECFMG DS-2019. 12-Month Bar of Admissibility following Previous J-1 Programs A once-popular route to a change in J-1 programs, of periods in excess of six months, was departure at the conclusion of a program of research, observation or study and immediate return in a new J-1 program.. This route was prohibited when USIA instituted a policy published in the Federal Register on June 30, 1999 that erected a bar of inadmissibility for visitors seeking to return after time spent in the J-1 Research/Professor category. The calculation of time spent is a topic for another time, suffice to say that a 12 month bar from ECFMG program sponsorship should be noted. 54 Reinstatement Following Substantive Violations When substantive violations of status occur that surpass minor technical infractions, reinstatement may be sought.55 A failure to maintain program status for more than 120 days beyond the DS-2019 is a substantive violation. Under current policy, in order to seek reinstatement, the Responsible Officer needs to submit a letter to the Exchange Visitor Program Services Office stipulating: 56 The violation of status resulted from circumstances beyond the control of the exchange visitor through administrative oversight, inadvertence, or neglect on the part of the program of the exchange visitor; and Therefore even if a J-1 physician does receive reinstatement, he/she will have a break in the period of lawful J-1 status, which could have significant implications for third-country visa processing, adjustment of status, and possible 3-10 year bar considerations (although that issue had been considerably ameliorated since the periods of unlawful presence for aliens admitted in "D/S" visas does not commence until an affirmative Service determination that a violation has occurred). Other actions such as willful failure to maintain health insurance, engaging in unauthorized employment, termination from a program, failure to maintain program status for more than 270 days, receipt of a favorable waiver recommendation or failure to pay the SEVIS fee would also bar a J-1 visitor from reinstatement. 58 Role of O-1 Option For all practical purposes, the O-1 classification is not a reliable option for most IMGs in the U.S. GME program. In rare circumstances, an IMG may qualify. The O-1 classification gained popularity during the mid-1990s when the then INS accommodated physicians caught by the H-1B cap. After the passage of ACWIA,60 this classification was used to facilitate further training, employment in a faculty capacity following training, or for private sector employment. For the physician seeking training, the complex and oftentimes uncertain situation affecting J-1 extension requests, particularly for programs in sub-specialty areas of medicine that exceed the allowable J-1 durational limits, the O-1 classification for aliens of “extraordinary abilities” was once used to support GME programs. Under law, a J-1 Exchange Visitor with an unfulfilled and unwaived two-year home residence requirement is prohibited from qualifying for either an H-1B visa or for permanent residence; there is no such prohibition from qualifying for an O-1 visa.61 While such a J-1 Trainee cannot change into O-1 status, he/she is eligible to consular process for an O-1 visa. The O-1 classification is an option for few IMGs already in J status and should not be seen as a blanket panacea to the J-1 durational restrictions, since only a relatively small number of aliens have achieved a level of “extraordinary ability...by sustained national or international acclaim.”62 However, in highly advanced medical sub-specializations, particularly if the services are to be performed in an acclaimed, preeminent academic medical center, (which would normally be the case for emerging medical sub-specializations), the physician may well have developed a level of acknowledged professional expertise for O-1 purposes. H-1B Considerations For GME PurposesThe Immigration Act of 1990,63 and its technical corrections, made the H-1B available to graduates of foreign medical schools who meet a “readiness to practice” standard consisting of: passing FLEX or the equivalent exam;64 passing an English language exam; and obtaining appropriate permission to practice in the State. At present, the only FLEX equivalencies are the National Board of Medical Examiners examination (NBME) Parts I, II, and III, and the U.S. Medical Licensing Examination (USMLE), Steps 1, 2, and 3. 65 Traditionally, nearly all nonimmigrant IMGs entered programs of GME as ECFMG-sponsored J-1 Exchange Visitors. Most training programs have a high level of familiarity with the J-1 provisions and, conversely, have perceived the H-1B option as not only burdensome in the need to prepare and file the relevant petitions and applications, but also by having the unwelcome consequence of ongoing exposure under the Labor Condition Application (LCA) provisions. Furthermore, many IMGs did not in their own right qualify for H-1B coverage, given their inability to sit for USMLE Step 3, as required for H-1B eligibility. 66 Moreover, many GME programs have not only become increasingly receptive to the H-1B option, but view it as a more preferable option to the J-1 Exchange Visitor classification. Among the factors leading to a growing receptivity to the H-1B alternative as a preferred nonimmigrant visa option are the following:
Conclusion Our entire notion of the healthcare profession is currently undergoing a great deal of change. There are now growing concerns with a massive shortage of physicians in this country, an increased belief in the benefit of specialty care practitioners as opposed to the previous emphasis on primary care physician, and the emergence of entirely new fields of medicine, which although not officially sanctioned under the American Boards, nevertheless focus on cutting-edge developments related to morbidity and mortality outcomes. For years, IMGs maintained a very unstable position in the national health care system, generally owing to a now discredited notion of physician oversupply. Unquestionably, the pathway for IMGs to enter the physician workforce requires completion of an accredited program of graduate medical education, which, historically, has required an IMG to enroll in a U.S. (or Canadian) residency and/or clinical fellowship program. Most IMGs entered such programs under an ECFMG-sponsored J-1 Program. With a growing receptivity to the benefits of IMGs in the physician workforce, we have yet to see any major revisions to the J-1 Exchange Visitor Program for GME purposes. In particular, J-1 physicians continue to face major constraints in fully engaging in residency and clinical fellowship programs. Both the program institutions and the immigration bar need to have a firm understanding of the allowable parameters and issues facing J-1 physicians. This article has surveyed many of the issues facing J-1 physicians and has implicitly suggested various issues which should be addressed and/or reformed in order to bring J-1 sponsorship matters into harmony with national healthcare needs. *Robert D. Aronson is a principal in the Minneapolis based immigration law firm of Ingber & Aronson, P.A. He is the chair of the National Healthcare Access Coalition, an association involved in public advocacy issues relating to immigration/waiver policies toward foreign physicians and is a frequent lecturer and writer on immigration issues of concern to the healthcare profession. He holds his J.D. cum laude from Indiana University, and was a Fulbright Fellow at Harvard Law School and Moscow State University (USSR). **Michele Stelljes is Manager of International Services for Baylor College of Medicine in Houston, Texas. She has a Masters in Educational Ministries and a Bachelors Degree in Communications from Wheaten College. Ms Stelljes co-chaired the NAFSA Professional Development Workshop on International Medical Graduates, and has served as presenter on physician immigration issues for the Texas Medical Association, The Princeton Review and at various meetings of the National Association for Foreign Student Advisors (NAFSA). June 2004 1.Salsberg, Executive Director, Center for Health Workforce Studies, SUNY Albany. “Physician Workforce Planning: What Have We Learned? Lessons for Planning Medical School Capacity and IMG Policies: The United States Experience.” Aug. 2003. |
Aronson & Associates, P.A. |