As almost anyone in the healthcare industry can attest, the United States has been experiencing a significant shortage of physicians and other healthcare professionals in many disciplines over the last several years. An increasing number of individual facilities, and entire geographic areas, are finding themselves in search of additional staff to meet their patients’ needs. These shortages have been highlighted even further during the pandemic.
International Medical Graduates (IMGs) remain an available source of labor to address this shortage, and while roughly 30% of medical residents in the US are IMGs, more can be done to ensure these residents will have the ability from a visa and immigration perspective to actually practice in the United States following completion of their medical training. Despite attention in the press and major media, and pressure from professional associations and other lobbying groups, the pathways for medical residents to transition to a visa status that will allow them to work and practice in the United States remain very limited.
Many IMGs utilize the J-1 visa category in order to come to the United States for graduate medical education/training in an accredited residency or fellowship program. The J-1 is an exchange visa, which, as a condition of its issuance, can require the visa holder to return to his or her home country following the completion of the training program in the U.S., in order to effectuate the “exchange” mission of the J-1 category. By law, all physicians who complete a residency or fellowship training program in the U.S. on a J-1 visa automatically become subject to this two-year home residence requirement (HRR). The HRR, while in effect, makes the physician ineligible for an H-1B visa (the most frequently used type of work visa for physicians and other professionals in the U.S.) and also for permanent resident status (a “green card”) in the U.S., unless and until the physician either returns to his or her home country to satisfy the 2-year HRR, or the physician obtains a waiver of that requirement. (Note, however, that there is an exception for Canadian citizens, who can obtain H-1B status in the U.S. while still subject to the HRR, although they would still need to either satisfy the HRR or receive a waiver in order to be eligible for permanent resident status in the U.S.)
Generally, there are four bases under which a J-1 exchange visitor can seek a waiver of the two-year HRR. Each of these bases/paths has its own unique requirements and procedures. The categories of available waivers include:
- No Objection Waiver: This is often the most straightforward waiver category/process, in which the J-1 visa holder obtains a letter from his or her home country’s government, attesting that they do not object to the J-1 visa holder remaining in the United States. (By law, J-1 physicians are excluded from eligibility for a No Objection Waiver.)
- Exceptional Hardship: Where the J-1 visa holder has a spouse or child who is a U.S. citizen or Lawful Permanent Resident, and can demonstrate that the qualifying family member would suffer exceptional hardship if the J-1 visa holder were required to return home for two years, the U.S. government has discretion to waive the two-year HRR for the J-1 visa holder.
- Persecution: Where the J-1 visa holder can demonstrate that he or she would suffer persecution in his or her home country, based on race, religion, or political opinions, the U.S. government has discretion to waive the two-year HRR for the J-1 visa holder.
- Interested Government Agency: Where a federal government agency has a documentable interest in retaining the J-1 visa holder in the United States to continue working on a specific project or endeavor, that agency can “sponsor” a waiver on the J-1 visa holder’s behalf and petition the U.S. Department of State/Department of Homeland Security to permit the J-1 holder to remain in the US and avoid having to satisfy the HRR.
With regard to J-1 physicians specifically, the fourth of these bases above, the Interested Government Agency waiver, is the one most commonly sought, and itself has several sub-categories of waiver/programs that are available to physicians only. While each program has its own unique requirements, the common thread among them is that they each require the physician to have an offer of employment from a healthcare facility/institution in the United States, for the physician to work in a position involving full-time patient care to a medically underserved population. The location of employment must be in an area designated by the U.S. Department of Health and Human Services as a Health Professional Shortage Area (HPSA) and/or Medically Underserved Area/Medically Underserved Population (MUA/MUP). Both the physician and the sponsoring facility must commit to maintain the physicians’ employment in the shortage area for a period of three years, and this three-year service period must be completed by the physician in H-1B status. Upon completion of the three-year commitment period, the J-1 physician’s two-year home residence requirement is officially waived, and the physician then becomes eligible for permanent resident status (a “green card”) in the United States.
The major distinguishing factors/requirements of each of the physician-specific waiver programs are summarized below:
Conrad 30/“State 30” Waiver Program
- Allows each of the 50 states to pursue up to 30 waivers for physicians each year. The location of employment must be within the state sponsoring the waiver, and must be within a federally designated HPSA or MUA/MUP. Because of the 30-per-state limit, competition can be significant in high volume states that receive more than 30 applications, whereas some states routinely do not utilize all 30 of their allotted waivers each year.
- States have the discretion to assign up to 10 of their 30 waivers annually to J-1 physicians whose location of employment is not within a HPSA or MUA/P, if the physician will provide care to patients who reside in shortage areas (known as the “FLEX 10”)
- Administered by state Departments of Health – as a result, each state has its own specific requirements, application process, and timeline/deadlines. Consult the website for the particular state Department of Health for details.
- Some states limit eligibility to primary care physicians (and will not consider applications for physicians working as specialists or with subspecialty training), while other states formally or informally give preference to primary care physicians.
U.S. Department of Health and Human Services (HHS) Waiver Program
- No limit on the number of waivers available each year (as compared to the Conrad 30 program above, which is limited to 30 per state, per year).
- By law, eligibility for an HHS waiver is limited to physicians who will practice in a primary care area (defined as family medicine, general internal medicine, general pediatrics, obstetrics & gynecology) or in general psychiatry, and who have completed their primary care or psychiatric residency training programs no more than 12 months before the date of commencement of employment under their contract with the sponsoring facility/institution. Consequently, specialists, and many J-1 physicians who have pursued fellowship training, would not be eligible.
- The employer/sponsoring facility must be located in a geographic area that has a health professional shortage area score of 07 or higher.
- Originally, the HHS waiver program was available only to sponsoring facilities that were designated as a Federally Qualified Health Center (FQHC) or a Rural health Center (RHC), which significantly limited its applicability. However, in mid-2020, the program was expanded to any facility with a HPSA score of 07 or higher.
Appalachian Regional Commission (ARC) Waiver Program
- No limit on the number of waivers available each year.
- Must be sponsored by a state within the Appalachian Region, which includes parts of Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia, and all of West Virginia (a list of qualifying counties is available here. In addition to being in the Appalachian Region, the work location must also still be within a HPSA as designated by the Health Resources and Services Administration.
- Generally, preference is given to physicians who will practice primary medical care, though waiver applications for physicians who will practice specialty medicine may be considered “with an appropriate showing of need.” In either case, the physician must have completed a residency in family practice, general pediatrics, obstetrics, general internal medicine or psychiatry.
Delta Regional Authority (DRA) Waiver Program
- No limit on the number of waivers available each year.
- Must be sponsored by a state within the Delta Regional Authority, which includes parts of Alabama, Arkansas, Illinoi, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee (a list of qualifying counties is available here. In addition to being in the Delta Regional Authority’s jurisdiction, the work location must also still be within a HPSA or MUA as designated by the Health Resources and Services Administration.
- Available to both primary care physicians and specialists.
Despite the available options above, significant limitations remain for international medical graduates, who then become U.S.-trained medical residents and fellows, to continue their careers in the United States. Each of the waiver programs above has its own restrictions, whether they be a restriction on the number available each year (Conrad 30), a restriction on the medical field in which the physician can work (HHS), or a restriction on the state in which the sponsoring facility is located (ARC, DRA). Without a widely available, reliable path for IMGs to transition to a practicing physician role, the physician shortage hampering our country will likely last for some time. In the meantime, healthcare facilities and institutions in the U.S. are wise to consider the options above and the opportunities available to them when recruiting for desperately needed physician positions.
Our immigration team will be presenting a webinar on December 8, 2021 which will cover these waiver options in more detail, along with many other pertinent issues in the healthcare immigration area. Please join us for that event by registering here.
If you have questions about waiver options for yourself or your employees, contact the Harris Beach immigration team to discuss the options that may be available to you. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.