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U.S. IMMIGRATION SYSTEM | PHYSICIANS Aronson & Associates over the years has attained a particularly respected position for the quality of its services provided to foreign physicians and their employers. For a variety of reasons, foreign physicians have faced a particularly arduous series of challenges in immigrating to the United States. Starting in 1978, all physicians were required to utilize the J-1 Exchange Visitor program in order to undertake programs of Graduate Medical Education in the United States, which is a prerequisite to obtaining state licensure. Yet, once the physician entered under a J-1 visa, he/she fell subject to the two-year home residence obligation, which made them ineligible for an H-1B visa and/or permanent residence. While the strict and unyielding J-1 requirement was relaxed somewhat starting in 1990, most physicians still face major barriers to immigration owing either to their two-year home residence obligation or artificial medical credentialing requirements. Much of the law relating to foreign physicians arose from an underlying policy determination that there was an overabundance of physicians in the United States. While unquestionably the U.S. healthcare system is plagued by geographic maldistributions that leave substantial swaths of the country bereft of adequate physician coverage, the underlying belief throughout the 1990s was that there were adequate numbers of physicians in practice and that the institution of managed care delivery systems could adequately serve the U.S. population. Over roughly the last decade, though, it has become apparent that there are gross shortages in the domestic physician workforce. While estimates of this shortfall vary, the American Medical Association (AMA) is currently predicting a shortage of roughly 20,000 physicians in practice today, and other studies put the shortage figure even higher. There are relatively few options in order to meet this physician shortage situation. Essentially the options open to U.S. healthcare policy makers are:
Slowly but surely, U.S. immigration policy toward foreign physicians has come to grips with the benefits derived from foreign physicians who take up practice opportunities in this country, particularly in designated medically underserved areas. Starting in the early 1990s, various federal agencies – most notably, the U.S. Department of Agriculture and the U.S. Department of Health and Urban Development – adopted J-1 Waiver programs to facilitate the placement of physicians in rural and urban medically underserved areas, respectively. Starting in 1994, the state departments of health acting under the Conrad State Waiver Program became expanded to recommend J-1 waivers aimed at bringing foreign physicians to the service of medically underserved communities. In 2002, the annual waiver allotment granted each state was raised from 20 to 30 waivers per year. Starting in December 2004, the Congress provided the states with additional flexibility by enabling them to grant waivers to physicians who although not working in designated medically underserved areas, nevertheless serve the needs of the indigent and medically underserved. These expanded J-1 Waiver opportunities represent only one element of the immigration path a foreign physician needs to traverse. The waiver simply removes the physician’s obligation to return to his/her home country. However, it does not create any affirmative basis for remaining in the United States. Therefore, in addition to obtaining a waiver for a foreign physician, the employer also needs to effectively sponsor the physician for affirmative immigration benefits. For many physicians, the first step of obtaining affirmative status would be to change into H-1B Temporary Worker status. This is a temporary, nonimmigrant visa classification that provides a foreign national with three years of employer-specific residence. Physicians who receive J-1 waivers either through the State Conrad 30 Program or the Department of Veterans Affairs have a mandatory obligation of working for the sponsoring employer for three years specifically in H-1B status. Within our immigration system, many foreign physicians have multiple pathways to permanent residence. Perhaps the most traditional pathway is on the basis of a Labor Certification Application through which an employer has to undergo a stipulated recruitment/advertising effort in order to show the unavailability of fully qualified U.S. applicants for the position. Given the substantial shortages within the current physician workforce, there appears to be an overabundance of open physician positions, meaning that most recruitment searches fail to identify a fully qualified U.S. physician for the job. Other physicians qualify for permanent residence under a National Interest Waiver. This is a special filing procedure that was created in recognition of the national importance of encouraging physicians to take up practice opportunities in designated medically underserved areas. The National Interest Waiver procedure enables a physician working in a designated medically underserved area to file a self-sponsored petition requesting permanent residence precisely as a reflection of the national importance of encouraging physicians to work in designated medically underserved areas. A physician pursuing permanent residence under the National Interest Waiver criteria needs to work for a five-year period of time in a designated medically underserved area in order to achieve permanent resident status. It is obviously difficult to predict the future as pertaining to immigration prospects for foreign physicians. However, based upon the developments over roughly the past 10-year period of time, it appears as though congressional policy makers as well as the U.S. general public are recognizing more fully the contribution to the U.S. healthcare system from foreign physicians. It appears quite likely that the physician shortage will continue to exacerbate, and that foreign physicians will continue to be the most readily available source of healthcare providers to plug this shortage situation. |
Aronson & Associates, P.A. |
