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Vertigo: The Dizzying Rules Governing Waivers for J-1 Physicians Update on Interested Government Agency Waivers for J-1 Physicians
June 2004 Introduction Healthcare reform and immigration reform are among the major—and most controversial—issues currently on the U.S. political agenda, and the sub-ject of this article deals in large measure with the intersection of these two areas of public concern. Within the healthcare arena, we are witnessing widespread concern that our medical care system is ill-equipped to address emerging medical needs. National healthcare spending growth is expected to greatly outpace economic growth over the next decade, and is predicted to reach 17.7 percent of the Gross Domestic Product (GDP), or $3.1 trillion, by 2012. 1 Through much of the last decade, health policy planning was premised on two suppositions: first, that the United States possessed an oversup-ply of physicians; and second, that the goal should be to institute a managed care delivery system as the means to better rationalize and economize on the provision of physician services to the public.2 At present, this formerly prevailing theory has lost its currency. The widespread belief among healthcare planners is that the United States faces an emerging shortage of physicians that, if unaddressed, will render the physician workforce inca-pable of meeting the medical needs of the popula-tion.3 Furthermore, whereas managed care doctrine had postulated that a primary care gatekeeper system would best and most efficiently direct patients to specialty care providers, the current belief is that an initial patient encounter with a medical special-ist may be the most cost efficient and effective manner to achieve a satisfactory healthcare out-come.4 The steadily expanding nature of medicine’s ability to treat human disease through enhanced pharmaceuticals, genetic engineering, biotechnol-ogy advances, advanced research, and clinical breakthroughs as well as the increased medical treatment of a wider array of human conditions (i.e., mental health, various alcohol, drug, and other dependencies, geriatrics, reproductive medicine, etc.) have raised not only major ethical and social concerns 5 , but have also increased our society’s demand for physicians and raised our overall expectation in the ability—if not the outright obligation— of the medical system to address a wide range of human maladies.6 Related to these advancements in medical practice, people today live longer, thereby raising the expectation that an aging population will require ever-greater levels of physician services in a system already straining to meet current demand.7 And as one final note of concern, there continues to be substantial geographic and functional (i.e., practice area) maldistribution patterns in the physician workforce, which has left broad tracts of the United States (particularly rural areas and inner-cities) medically under-served.8 Current waiver practice and theory is not only important in the immigration context, but is also relevant to broader national healthcare objectives. The ultimate importance of J-1 waiver policy is, we would suggest, premised on the following four points: (1) there is an alarming, widespread, and growing shortage of physicians in this country which, if left unaddressed, will compromise our nation’s ability to provide adequate healthcare coverage to the population; (2) the pool of International Medical Graduates (IMGs) provides the sin-gle most available source of new physicians; (3) quite importantly, based on empirical data, IMGs display a “gap filling” pattern of practice in that they disproportionately serve the needs of the indigent, medically underserved, ethnic communities, and underserved areas; and (4) 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. 9 Therefore, this article deals with the current state of Interested Government Agency (IGA) waivers to J-1 physicians, and it is an update of an article previously appearing in the AILA Immigration & Nationality Law Handbook.10 Legal Background The principal statute governing the admission of IMGs is the Health Professional Educational Assistance Act of 1976 (HPEA),11 which created substantial new requirements governing the admission and residence of foreign physicians. In particular, the HPEA imposed an across-the-board home residence requirement on all IMGs engaged in clinical training, regardless of their home country, and, in contrast to all other classes of J-1 exchange visitors, eliminated the ability to gain a waiver based on the issuance of a “no objection” statement from the alien’s home country.12 As codified in the Immigration and Nationality Act (INA),13 physicians who have entered the United States under an Educational Commission on Foreign Medical Graduates (ECFMG) sponsored J-1 clinical training program are uniformly subject to the two-year home residence obligation regardless of their country of citizenship or last permanent residence.14 These physicians are obligated either to fulfill their two-year home country requirement or to secure a waiver of that requirement in order to obtain an H1- B or L-1 visa or permanent resident status. There are nearly 9,000 J-1 physicians engaged in programs of clinical training in the United States, which is a prerequisite to medical licensure.15 Unlike other categories of J-1 exchange visitors, an IMG cannot obtain a waiver of the two-year home residence requirement based on the issuance of a “no objection” statement by his or her home country. Rather, IMGs are eligible for waivers solely 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)16 . Regardless of the basis under which a waiver is pursued, the applicant needs to initiate the waiver application process by requesting a waiver number from the DOS. Once issued, this number then needs to be utilized by the J-1 exchange visitor for all future waiver applications. A J-1 waiver applicant can only have one IGA waiver pending at any given time, although it is permissible to concurrently seek a waiver per an IGA and an exceptional hardship and/or persecution theory 17 . If an IGA waiver is denied, the J-1 waiver applicant can subsequently seek a waiver through another IGA. Procedurally, all IGA waiver requests initially go from the recommending government agency to the Department of State (DOS), which then determines whether it will recommend the request to the United States Citizenship and Immigration Services (USCIS) for approval. Previously, waiver requests were reviewed by the U.S. Information Agency (USIA) without a filing fee. In 1998, the USIA instituted a filing fee for all waiver requests, and in October 1999, the USIA was dissolved and the exchange visitor functions were transferred into the DOS, thereby establishing the current track of first going through the DOS and then the USCIS. 18 Exceptional hardship and persecution waiver requests are filed with the USCIS. The USCIS makes the initial finding as to whether the waiver applicant has met his or her burden of establishing either exceptional hardship to a U.S. citizen (USC) or lawful permanent resident (LPR) spouse or child (i.e., the anchor relative) or persecution to the applicant. If the USCIS makes such a finding, it then forwards the waiver request to the DOS, which will balance the intrinsic merits of the waiver application with the public policy of the J-1 Exchange Visitor Program of compelling the return of the alien to his or her home country. This entire issue of the degree to which the DOS should defer to an initial USCIS determination of exceptional hardship or persecution is a matter of ongoing discussion between AILA and the DOS.19 If the DOS issues its own waiver recommendation, the waiver will then be sent back to the USCIS for final adjudication, which almost invariably will endorse the decision of the DOS. The IGA waiver strategy has been most often used by IMGs because the criteria for eligibility are generally based on more objective and manageable factors than for hardship and persecution waivers. This article will therefore focus primarily on IGA waivers for physicians. Interested Government Agency Recommendations The various IGA waiver programs have changed over the years and often have proven to be controversial. For several years, the Department of Housing and Urban Development (HUD) and the Department of Agriculture (USDA) served as IGAs for physicians seeking to relocate to inner city and rural areas, respectively. Each of these agencies has terminated its program.20 Conversely, the Department of Health and Human Services (HHS) recently initiated a waiver program for clinical physicians as a supplement to its preexisting program for academic biomedical researchers,21 and the Delta Regional Commission (DRC) has instituted a waiver program focused on its own specific geographic area.22 In addition, the annual waiver allocation granted to the individual states through the Conrad Waiver Program has been raised from 20 to 30 waivers, and a number of states have initiated, expanded, or otherwise modulated their own Conrad 30 waiver programs.23. In short, there has been significant change in IGA waiver practice and policy during the last several years. Essentially, there are three paradigms for IGA waivers for IMGs: (1) community-based medical service in a medically underserved area; (2) employment directly within a federal facility (i.e., the PARADIGM #1: J-1 waivers based on service in medically underserved communities are standardized for the most part through federal regulations. Before 1996, there were sharp statutorily based differences in waivers recommended by a state as opposed to a federal IGA, as well as among the various federal IGA programs. Changes to the INA 24 in 1996 set a uniform requirement that all IMGs who receive waivers through either a federal or state IGA program, other than researchers receiving a recommendation by the Department of Health and Human Services (HHS), must fulfill a three-year service requirement in H1-B status prior to gaining eligibility for permanent resident status or an immigrant visa.25 The rationale for exempting nonclinical HHS physicians is that they are regarded as researchers rather than physicians “engaged in the practice of medicine.” While there are several important distinctions between the waiver programs open to federal IGAs and the states under the Conrad 30 Program, the issue of overriding importance concerns the flexibility to pursue waivers for specialty care physicians. For physicians working in designated medically underserved areas, federal agencies are limited to issuing waiver recommendations solely to primary care practitioners, defined as: general medicine, family practice, internal medicine, pediatrics, obstetrics-gynecology, and general psychiatry.26 In contrast, there is no such limitation placed on the states, and, indeed, 36 states extend waiver eligibility to varying extents to specialty care physicians. If a physician gains an IGA waiver through either a federal or a state agency, the physician becomes obligated to work strictly on a full-time (40 hours) basis for three years in a designated medically underserved area. Specifically, it is not enough that the physician will serve a patient population located in a designated medically underserved area; rather, the law has essentially created a “physical presence” test which requires the employing facility to be physically located in an area which has received federal designation as a medically underserved area.27 When considering eligibility of a particular geographical area, there are three schemas of medical underservice. First, there is a system based on a strict ratio of physicians to the area’s population. In this instance, if the physician to patient ratio is 1:3500 or less, an area can qualify as a Health Professional Shortage Area (HPSA). (There are some limited exceptions for HPSA designation if there is a physician: patient ratio of 1:3000.)28 HPSA designations, which are made only for primary care, dental, and mental health, are updated annually in the Federal Register, but are currently available in the most updated form from the HHS Web site.29 Second, the system of Medically Underserved Areas or Populations (MUA/MUP) accounts for additional factors to determine medical underservice, specifically infant mortality rates, percentage of elderly population and indigent population. Third, certain communities or areas receive Mental Health Professional Shortage Area (MHPSA) designation so as to designate a shortage of available psychiatrists. Health and Human Services Waiver Program The Department of Health and Human Services (HHS) is the lead federal agency overseeing this nation’s healthcare system. For years, HHS has served as an IGA for research physicians and biomedical researchers performing cutting-edge studies of national importance.30 Conversely, HHS historically has refrained from serving as an IGA for physicians rendering clinical service in designated medically underserved areas. On December 19, 2002, HHS announced its program to serve as an IGA for clinical physicians.31 Owing to the recent implementation of this program, which has not yet begun accepting applications, its actual practice and performance remain unclear. At minimum, this announcement represents a welcome and highly desirable initiative to facilitate the relocation of physicians to medically underserved areas, which has become particularly important in light of the termination of the USDA waiver program that served as a catalyst for J-1 physician relocation to rural communities. There are four main issues of concern with the HHS waiver program: the level of coordination between other IGAs and HHS in adjudicating a waiver application; a stipulation that the physician’s position commence within 12 months of the conclusion of his or her primary care medical training; the requirement that the physician must have a medical license at the time the application is submitted; and the commitment of HHS to clinical care needs given the Department’s traditional concentration on research physicians. First, it is somewhat unclear as to the level of coordination required with other IGAs for HHS to recommend a waiver. The regulations seem to imply that HHS will only recommend a waiver if the state’s Department of Health has either failed to issue a waiver under its own program or has used up its annual allotment of 30 waivers. The problem here is that the two programs may and in many cases should have complementary goals. The states have the latitude to recommend J-1 waivers to medical specialists whose employment is deemed to serve particular medical needs of the state. HHS, as a federal agency, does not have this latitude. Rather, its waiver program is restricted solely to primary care practitioners. However, by conditioning HHS waiver adjudications on whether the state has exhausted its full allotment of waivers, the concern is that the states may feel forced to recommend waivers to primary care physicians rather than marshalling their limited number of waivers to those physician placements of maximum benefit to the state, which could include medical specialists. If the states could have the certainty that primary care physicians were being adequately served by HHS, they could then use their own waiver programs in a manner of maximum utility to their own health coverage interests. Conversely, given the uncertainty on HHS action, many states may need to protect their own baseline needs by recommending waivers to primary care physicians rather than constructing a federal-state partnership intended to place adquate physicians in designated medically underserved areas of maximum benefit. In addition, this deference by HHS to the states will, in certain instances, inject a level of delay and duplication, particularly in those states that announce their waiver decisions late in the fiscal year and minimize the independent interest of HHS in facilitating the relocation of physicians to medically underserved communities. While it may be meritorious to include a consultation requirement with the states in which HHS would only act on a J-1 waiver pursuant to the full knowledge and acquiesence of the state, it seems counterproductive to have an inflexible policy of deferring all HHS waiver decisions until the state has completely used up its waiver allotment or affirmatively declined to issue a waiver. Second, the HHS program creates a requirement that the physician’s position commence within 12 months of the conclusion of his or her primary care medical training. The stated rationale is to ensure that an HHS waiver beneficiary has current experience in primary care medicine, and it seems to also be grounded in a desire to ensure that medical specialists do not use the HHS waiver program as a subterfuge to practice specialty medicine under a program designed for primary care practitioners. However, this 12-month window is of concern for the following reasons: first, it does not account for physicians who have departed the United States and are practicing primary care medicine abroad; second, given the steadily lengthening adjucation times within the federal agencies, it becomes problematic for a physician and/or the employer to meet this 12-month deadline; third, most specialty care physicians need first to complete programs in primary care medicine and it seems counter-productive to eliminate this pool of candidates from HHS waiver consideration; fourth, under the HHS regulations, the definition of primary care is severely limited so as to eliminate certain initial encounter medical disciplines, such as geriatric medicine and hospitalist; and fifth, this mechanistic 12-month window does not provide for any flexibility in determining whether a physician’s experience as a practitioner would well serve the primary care needs of a community. Third, the HHS regulations require the physician to possess a medical license at the time the waiver is filed. Unquestionably, a physician has the burden of establishing licensure eligiblity. However, there are states which condition issuance of a license on obtaining visa status, and physicians seeking practice opportunities in such states would seem to be barred from HHS waiver consideration. Therefore, a more appropriate standard would be for the physician to hold licensure at the time that the employment is to commence, and not at the time that the waiver application is filed. Fourth, for years, HHS has served as the lead IGA for research-oriented physicians, and the Department has presumably through its Waiver Review Board gained considerable expertise in determining the research capabilities of applicants for J-1 waivers. The Interim Rule designates the Waiver Review Board as the ultimate arbiter of waiver applications filed for clinical physicians as well, although there seems to be provisions for incorporating members onto the panel with background knowledge and sensitivities to the clinical practice of medicine. As such, it is simply a matter of common sense that the Waiver Review Board be empaneled with expertise in the importance of clinical practitioners to medically underserved communities. U. S. Department of Agriculture The USDA initiated its waiver program in February 1994, 32 and for years, this Department served as the primary IGA for physicians seeking to relocate to rural communities. Throughout its activity, USDA exhibited certain conflicts in its attitude toward its waiver program, generally citing its inability to adequately monitor the fulfillment by its waiver beneficiaries of their obligations and a perceived pattern of practicing specialty care medicine rather than primary care. In addition to specialty care concerns, in the aftermath of 9/11, the USDA recurrently cited its concerns that there was no mechanism in place to fully ensure that its waiver beneficiaries were not security threats to this country.33 On March l, 2002, the USDA announced its termination of its waiver program. 34 It initially returned pending waiver applications but eventually agreed to adjudicate them. Waivers that had been recommended for approval were unaffected, although USDA did condition its final sign-off on the completion of a background security check. Appalachian Regional Commission The ARC 35 has the longest record of recommending IGA waivers for IMGs. The ARC’s jurisdiction covers counties in the following states: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and all of the State of West Virginia. The ARC limits waivers to primary care practice, defined as general or family practice, general internal medicine, pediatrics, or obstetrics/gynecology. In addition, the physician needs to practice on a full time basis in a facility physically located in a federally designated shortage area for primary care or for psychiatric care. The ARC waiver program involves a close federal- state partnership. The ARC has developed broad waiver guidelines that the individual states thereafter implement, and, to a certain degree, customize in light of their own stated needs. The federal co-chairmen of the ARC will only consider waiver requests upon the written recommendation from the governor of the state in which the facility is located. Individual states often impose their own additional regulations or policies, which can make the waiver process quite involved and lengthy. For example, the ARC does not prohibit waivers for IMGs who have engaged in specialty medical training, but almost half the states in its jurisdiction have disqualified physicians who have received specialty training. To meet the baseline criteria for an ARC waiver, the following key conditions of ARC’s waiver program must be met: In addition to containing all the clauses and attestations required by the DOS regulations, the employment contract must contain ARC’s $250,000 liquidated damages clause, verbatim. Initially, under the provisions of INA §212(e), only federal agencies could serve as IGAs. Conversely, state agencies have traditionally lacked the authority to recommend waivers of the home residence obligation. However, within the physician sphere (as opposed to nonphysician J-1 waiver cases), the states have been granted a numerically limited ability to serve as IGAs, presumably in light of their familiarity with their own physician coverage needs and the historic role played by the states in the regulation of physicians. This expansion of IGA authority to the Departments of Health of the various states was spear-headed by Senator Kent Conrad (D-ND), dating back to provisions passed in 1994 37 that temporarily amended the INA 38 to authorize state or “equivalent”39 Departments of Health to directly act as IGAs in support of waiver requests of petitioning facilities located in the state. The Conrad legislation also amended the INA to provide the fundamentals for all state IGA waiver programs, which then included: The IMG must agree to work full-time for a facility in a HPSA or MUA/MUP for at least three As a result of the Department of Justice authorization bill,44 the state-based waiver program has been extended for an additional two years, through June 30, 2004, and the annual waiver limit of the states has been raised from 20 to 30. In addition, the states were granted retroactively an additional 10 waivers during 2002 for cases originating in that fiscal year.45 While there are a great number of identical features between a federal IGA and a Conrad 30 waiver, there are some important distinctions, which should guide the practitioner in making strategic decisions on behalf of a client, including: Federal waivers are limited to IMGs who are trained in and agree to provide primary care. Conversely, states have the latitude to define primary care and to recommend waivers for medical specialists if they believe there is a need for specific medical specialties. Primary Care States may, but are not required to, adopt the federal definition of primary care. Most state programs follow the federal model of defining primary care as: family or general practice, general internal medicine, obstetrics/gynecology, general pediatrics, and psychiatry. However, other states, while ostensibly limiting their waiver programs to primary care practitioners, either expand or contract their definition of primary care. It has, though, been the experience of the authors that even in states maintaining stipulated definitions of primary care disciplines, it is sometimes possible to obtain waivers for medical specialists who provide primary encounter services, particularly in a medical area of pronounced medical concern (i.e., infectious diseases/AIDS treatment or respiratory diseases in inner city communities), or who split their practices between primary and specialty care medicine. (Note: Most specialty care physicians are American Board-eligible in a primary care discipline.) Specialty Training Federal agencies and states are similar in that both have latitude in developing policies regarding IMGs who have trained in a nonprimary care specialty. The definition of specialty medical disciplines varies as a consequence of the latitude in defining primary care. Also, some specialty practice areas, such as nephrology, cardiology, oncology, hematology, and neurology, require a physician to have first completed a residency program in primary care/internal medicine, whereas other medical disciplines (e.g., anesthesiology and surgery) do not require training in primary care medicine. The states have the latitude to define their eligibility standards for physicians who have completed specialty medical training. Whereas some states will favorably adjudicate waiver applications for specialty- trained physicians who are being employed in primary care positions, other states hold that completion of specialty training disqualifies a physician from waiver consideration. The apparent rationale behind a prohibition on specialty training is that such training indicates either a lack of commitment to the practice of primary care or an unacceptably high temptation to violate the state’s waiver policies by practicing specialty care medicine, which is normally more remunerative than primary care practice. Contract Terms Federal agencies do not allow noncompete clauses that prevent physicians from competing with the petitioning facility upon completion of the three-year commitment. The rationale for the prohibition is to promote the permanent relocation of the physician in the underserved area. Although states are not required to prohibit such clauses, several states have incorporated such non-compete clauses into their waiver programs. Other states have developed certain special contractual requirements and provisions as part of their waiver programs. For example, certain states require contractual terms of employment in excess of three years or impose liquidated damages provisions, normally of $250,000.Specialty Practice In contrast to federal IGAs, the states have the flexibility to recommend waivers to medical specialists. However, many states have chosen to limit their waiver programs solely to primary care physicians, while others place special restrictions or grant less favorable consideration to waiver applications for specialists. For example, some states will consider specialists only if the petitioning facility and patient population can document a special, critical need for the IMG’s specialty and unsuccessful recruitment for a U.S. physician. States may establish the standard Pre-application procedures and required site investigations prior to filing the waiver application. The DRA 48 is a new program aimed at supporting primary care placements in an eight-state area, comprising a total of 240 counties and parishes in Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri and Tennessee. It is noted that participation may expand to even more counties and parishes in the future. The DRA waiver program is structured to actively invite state participation. Procedurally, three copies of the completed DRA application must also be simultaneously submitted to the state, which then has a period of 30 days in which to voice concurrence with, or objection to, the waiver request. If the state does not notify DRA of an opinion, the DRA will advise the state that it is proceeding with waiver review. This will initiate a final 10-day period in which the state may participate in the decision-making process. The DRA aims for a maximum review period of 45 days, demonstrating a commitment to prompt action, with or without state participation. To meet the baseline criteria for a DRA waiver, the following key conditions of the DRA’s waiver program must be met: The physician must agree to provide primary care medical care as defined in the DRA guidelines, for not less than 40 hours per week in a site within a medically underserved area located in a county or parish within the DRA, for a period of not less than three years. PARADIGM #2: The Department of Veterans Affairs (VA) operates an IGA waiver program that is significantly different from the other federal IGA programs in that this agency’s program does not operate on a community- based model but rather on direct employment within a U.S. government facility. Procedurally, a VA waiver request is initiated within an individual VA facility, which files a waiver request through the Veterans Integrated Service Network (VISN) to the waiver review office within the VA Central Office. The VA Central Office makes the final decision whether to recommend a waiver, and its determination generally takes two to four months. The VA waiver program is unique in that it enjoys statutory and regulatory exemptions from many of the general IGA requirements for IMGs.49 By its nature, the VA provides medical care to a special population with unusually high and special medical needs (e.g., geriatric and/or indigent patients). Because its patient population of veterans is dependent upon the VA system for medical care, the VA has historically acted as an IGA for specialists as well as primary care physicians. As a government entity that also conducts medical research, the VA has also acted as an IGA for physicians who conduct research provided it is a supplementary and subordinate activity to clinical care. Although exempted from the recruitment requirement by federal regulations, the VA has a longstanding policy requiring the requesting VA facility to document extensive and unsuccessful recruitment efforts for U.S. physicians and a description of each potential candidate’s lack of qualifications or interest. VA written policy 50 requires that the VA facility must directly employ the IMG on at least a 50 percent basis, thereby prohibiting the VA from serving as an IGA primarily for the benefit of an affiliated university. (Many VA facilities are affiliated teaching hospitals to university medical schools.) However, as IMGs are required to have full time employment at a health care facility determined to be in the public interest, the prevailing view is that at least 40 hours per week must be spent directly working for the VA facility. In 1996, changes to the INA 51 stipulated that all IGA waiver recommendations were to be limited solely to facilities located in HPSAs or MUAs. This resulted in the unintended restriction on the VA’s ability to act as an IGA if the individual facility is not located in a HPSA or MUA. Special legislation was passed in October 1997 to correct this and exempted VA facilities from the requirement that the IMG must practice in a HPSA or MUA 52 . Additionally, VA facilities are exempted from the primary care restriction and may sponsor IMGs to work in medical specialties. While the law grants the VA considerable latitude in pursuing waiver requests for IMGs, the VA system has exhibited some growing ambivalences toward its waiver program. As a general observation, the widespread perception within the physician workforce is that the VA system is characterized by unacceptable wage and working conditions which makes physician staffing particularly problematic. In contrast, IMGs oftentimes find the VA a very desirable employer if for no reason other than the opportunity to gain a waiver while practicing specialty medicine in an academic environment. This would seem to suggest the desirability for the Department of Veterans Affairs to actively support (if not embrace) its J-1 waiver program. Yet, despite the reliance by the individual VA facilities on IMGs, the VA Central Office has been requiring greater recruitment efforts and has instituted longer, more rigorous processing procedures in an apparent attempt to encourage the individual VA facilities to recruit U.S. physicians. The IMG must hold at least a 50 percent appointment directly with the VA facility sponsoring the waiver, although IMGs holding full-time appointments are far more likely to obtain an IGA recommendation. The VA facility must document a sustained recruitment campaign to establish conclusively the unavailability of fully qualified U.S. physicians. The VA Recruitment Placement Service should be used over a period of time and advertisements must be placed in nationally circulated medical journals. Advertisements should not be older than one year, but the VA has proposed changes to the policy that would require advertisements to be no older than six months. Potential candidates must be interviewed no later than three months after they respond, and a detailed explanation must be submitted regarding the lack of qualifications of U.S. physician applicants. Primary care physicians are preferred but specialists are still being considered if the requesting VA facility provides a clear explanation of the unique need for the specialist IMG. Researcher IMGs are no longer are eligible for waivers through the VA system unless the physician’s research endeavors are clearly subordinate to the physician’s clinical care services. The VA now requires a three-year commitment from the IMG and has taken the position that any premature departure, regardless of circumstance, would render the waiver null and void. This policy differs sharply from general provisions in the INA and regulations that enable IMGs to change employers upon a showing of extenuating circumstances and relocation to another medically underserved area for the remainder of the three-year commitment.53 Finally, the VA has been adhering to a very controversial policy of barring IMGs in O-1 nonimmigrant visa status from VA waiver eligibility, unless they have first worked for, at minimum, two years within the VA system.54 As stated above, the home country requirement prohibits IMGs from obtaining H1-B, L-1, or permanent resident status, but does not prohibit an alien from obtaining an O-1 visa. The underlying rationale for the VA’s policy appears to be that the O-1 visa holder already possesses employment authorization and the waiver would be a redundant benefit. This rationale is arguably short-sighted because the O-1 is a temporary visa and does not enable the IMG to work on a permanent basis within the VA system, and under current VA guidelines, a VA waiver job offer must be for a permanent position. As a result of this policy, many world class IMGs are now declining practice opportunities within the VA system to the detriment of veteran health care objectives. PARADIGM #3: The Department of Health and Human Services provides a unique IGA waiver program for IMGs engaged in pioneering research of national significance. The HHS waiver program is exempted from general requirements of IGA waivers for IMGs to provide patient care in designated HPSAs or MUAs.55 The HHS waiver program is unique in that HHS has promulgated its own formal regulations for the waiver program.56 Procedurally, an HHS waiver application initially is submitted to the Executive Secretary of the HHS Exchange Visitor Review Board for an initial determination regarding the completeness of the application. After this initial review, the application is forwarded to the National Institutes of Health (NIH) for a “technical review,” focusing on the intrinsic scientific merits of the research and its relevance to expressed areas of national interest. The HHS Exchange Visitor Waiver Review Board makes the final decision and carries the responsibility of weighing the benefits of the IMG’s contributions to research of national significance to the overall purpose of the J-1 exchange visitor program. For HHS waiver purposes, the following core requirements must be met: The IMG must establish that he or she is an outstanding academic physician with a strong commitment to research, particularly bench research (i.e., laboratory based research), as opposed to clinical investigation and that the focus of such research will be in an area of high national priority; Change of Employement After Obtaining IGA Waivers Prior to 1994, retaining an IGA-recommended waiver was not an issue. Once granted, the waiver was final and irrevocable absent a showing that the waiver was obtained by fraud or bad faith. With the congressional authorization of the Conrad “State 20” program,58 a new condition was imposed on all IMGs who received waivers under this program, which required a waiver beneficiary to work in H1- B status with the petitioning medical facility for a minimum of three years before gaining eligibility for permanent residence.59 Failure to comply with the three-year H1-B requirement would result in reinstatement of the home country requirement.60 The 1996 law provides a limited exception to the harsh consequences of a physician’s departure of the employing facility within the three-year period of required H1-B service. The law allows for the possibility of retaining the waiver upon the fulfillment of two conditions: first, the existence of “extenuating circumstances” (as opposed to the physician’s own personal desire to change employer) which makes the physician’s continued employment palpably unfair; and second, the physician’s relocation to a medically underserved area for the balance of the three-year H1-B service obligation.61 The law contains only two stipulated examples of extenuating circumstances: closure of the facility and hardship to the IMG. This is a not an exhaustive list. In such circumstances, the USCIS has the discretion to authorize the change of employer as long as the IMG can demonstrate a new job offer of full-time employment in the same or another HPSA or MUA/MUP for the remaining balance of the three-year term. Neither the INA nor the USCIS regulations indicate the specific procedure to request an extenuating circumstances exemption for IMGs who received an H-1-B after obtaining an IGA waiver. The law simply indicates that the Attorney General must be notified and has the authority to consider the extenuating circumstances. Also, the regulations concerning material changes in H1-B employment apply so as to require the filing of a new H1-B petition when there has been a change in employer and/or job location. Presumably, approval of an H1-B petition containing the extenuating circumstance exemption request would protect an IMG from being barred 62 to eligibility for permanent residence for not completing the three-year commitment with the original petitioning medical facility. As discussed below, there is no requirement to notify the recommending IGA of a change in employment, although it may be a good practice pointer to make full disclosure to the agency so as to head off any recommendation to rescind the waiver from the IGA. Current USCIS regulations provide that extenuating circumstances requests will be reviewed based upon the specific facts of a case. Because there is little regulatory guidance, it is not clear what constitutes “extenuating.” The IMG must provide an employment contract with a new medical facility for the balance of the three-year commitment along with documentation that the facility is located in a HPSA or MUA/MUP. In the case of an exemption request based on facility closure, evidence of past closure or anticipated closure must be provided. In the case of a claim of hardship, the IMG must establish that the hardship was caused by unforeseen circumstances beyond his or her control. The standard for hardship is not clearly defined under either the statute or the regulations. Interestingly, the IMG is not required to demonstrate “extreme,” “exceptional,” or even “extremely unusual” hardship. All that has to be demonstrated is hardship to the IMG. Neither the INA nor the regulations provide clear guidance on how extenuating circumstances requests should be judged. Reports from immigration practitioners indicate that the USCIS has tended to view favorably a new H1-B petition accompanied by reasonable evidence of the extenuating circumstances which has resulted in the IMG’s proposed departure. A letter from the former employer describing the circumstances leading to the termination or departure is usually a critical piece of evidence. Former employers oftentimes tend to be helpful in providing such letters, particularly if it is a mutually desired departure or if the employer may have breached the contract so as to become liable not only for the H-1B return transportation provisions, but also for back wage payment and other penalties.63 A statement from the IMG also may be necessary to describe the circumstances leading to the failure to fulfill the employment agreement with the original petitioning medical facility, depending on the quality and sufficiency of other evidence. The timing of the filing of the new H1-B petition with an extenuating circumstances request is also critical. Technically, there is no H-1B grace period once an IMG is terminated from employment. Rather, an IMG who is terminated from H1-B employment falls out of nonimmigrant status immediately upon the date of termination. However, USCIS regulations governing the late filing of applications to extend the stay due to extraordinary circumstances “beyond the control of the applicant” may provide discretionary authority for the USCIS to grant approval of a late filing of an H1-B petition accompanied by the extenuating circumstances request and supporting evidence. Where it is clear that termination of employment was unforeseen by and beyond the control of the IMG such as in a layoff, approval of a late filing of the H1-B petition with extension of stay request should not be a problem. Notably, there is no requirement to obtain the prior consent or even concurrence from the DOS or the IGA prior to changing employers. Nevertheless, most practitioners believe it is good practice to notify the IGA that recommended the waiver. This is a prudent practice particularly if the IMG received an ARC waiver or a Conrad State 30 waiver in a state that implements site visits to monitor compliance, or in states that stipulate that premature departure will result in a retraction of the waiver. Additionally, obtaining a letter of no-objection from the IGA will further support the favorable adjudication of the extenuating circumstances request by the USCIS in the context of the H1-B petition for new employment. Please note that IMGs who have left their original employer on bad terms may find themselves in contractual litigation with former employers over liquidated damages clauses such as those required by ARC, even if state or federal agencies have acquiesced to the change of employer. If the state IGA is not notified and discovers that the IMG is no longer practicing at the original petitioning medical facility, it may report the incident to USCIS as a violation justifying revocation of the waiver and the institution of removal proceedings, although the effectiveness of such an action is unclear. IGA Waiver Compiance and Additional Employment One of the recurrent open issues is the extent to which a waiver beneficiary who has fulfilled his/her full-time period of employment in a qualifying facility can work in positions not qualifying for waiver benefits. This issue arises in two contexts: first, a physician’s practice in facilities located in non-qualifying areas – i.e., geographic areas which are not medically underserved; and second, the practice of specialty care medicine in instances in which the waiver is conditioned on primary care practice. Again, this issue arises solely in the context of employment over and above the required full time commitment in the qualifying waiver position. To date, this issue has not been fully clarified, although various government officials have indicated that such employment if otherwise authorized, would not constitute a violation of the waiver. In addition, there are instances in which a physician needs to commit a patient to a hospital which is not located in a designated medically underserved area, and to then provide follow-up medical treatment services. In such instances, the failure of a physician to continue to treat patients undergoing hospitalization would violate appropriate professional norms and would probably constitute malpractice. Yet, the issue remains open as to the degree this follow-up practice is allowed and whether periods spent providing hospital-based care should count toward fulfillment of the full-time employment requirement in the designated medically underserved area. Conclusion The review of the various IGA waiver programs indicates that this area of immigration law remains quite challenging and complex. The demand for physicians in general, and particularly those working in medically underserved areas, will quite likely continue to grow. Therefore, the J-1 waiver program becomes an indispensable physician recruitment tool. By their nature, waiver cases involve coordination among the medical facility, the alien physician, the IGA, and immigration counsel. They oftentimes take place against harsh, compacted time frames.The policies of the various state IGAs vary widely, and even in those states maintaining detailed policies, there oftentimes arise unforeseen circumstances that influence waiver outcomes considerably. In addition, all too often, waiver cases are hampered by the uncertain state of the law itself, and the recurrent propensity of federal and state agencies to govern by policy memoranda, opinion letters, liaison reports, and even unwritten policy changes. In light of the current uncertain state of immigration law, IMGs and their attorneys should carefully measure advice, weighing what is known against what is unknown. Full disclosure of the risks of any course of action is essential for the IMG and the employing medical facility to make informed decisions. Those IMGs who pursue IGA waivers, particularly IGA community-based waivers, must understand the enormous amount of work and commitment involved— including three full years in H1-B status, and the possibility of working in the underserved area for several more years while pursuing permanent resident status. * Robert D. Aronson, a Principal in the Minneapolis-based immigration law firm of Ingber & Aronson, P.A., received his law degree from Indiana University and was a Fulbright Fellow at Harvard Law School and Moscow State University (Russia). Mr. Aronson has held various leadership positions on immigration matters for International Physicians within the medical, legal, academic, and governmental communities. He is a member of the AILA DOS Liaison Committee, and is the former Chair of AILA’s FMG Task Force and its Ad Hoc Physicians Committee. David A. M. Ware has practiced immigration law exclusively since 1982 and is the Principal of David Ware & Associates in New Orleans. He is a graduate of Yale University (B.A.) and the University of Texas (J.D.). He is active in the National Association of Foreign Student Affairs: Association of International Educators and has held positions within AILA dealing with foreign students and the Texas RSC. Mr. Ware is a frequent speaker and author on immigration topics throughout the United States and abroad. He teaches immi gration law at Southern University School of Law. Alison J. Brown has been practicing immigration law with Maggio & Kattar, P.C. since 1987. Ms. Brown is a graduate of American University’s Washington College of Law. Ms. Brown is a regularly invited speaker on immigration matters throughout the United States for lawyers, employer groups, and the general public. Ms. Brown is co-author of “Current Options and Strategies for Obtaining J-1 Waivers,” (with M. Maggio), “Exceptions to the Rule: Winning INA Waiver,” (AILA 1994). The authors wish to thank Susan Sorbet-White, Jasmine Chehrazi, and Heidi Eschenbacher for their assistance on this article. June 2004 1. National Health Expenditures Expected To Reach $3.1 Trillion By 2012, Significantly Outpacing Economic Growth, Health Affairs, Jan./Feb. 2003. |
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