United States: Filling Staffing Needs: Can Foreign Physicians Save The Day?

Last Updated: February 11 2014
Article by Catherine V. Wadhwani and Matthew J. Redding

First Quarter 2014

The Patient Protection and Affordable Care Act (the Affordable Care Act) contains a number of provisions aimed at increasing access to health care insurance to millions of Americans without coverage. This increased access to health care insurance will lead to an increased demand for physician services. In order to provide for the increase in physician demand, the Affordable Care Act introduced a number of incentives aimed at increasing the number of physicians in the workforce, including modifying federal Medicare payments for medical residency training, authorizing additional funding for medical residency training, and offering additional loan forgiveness and scholarship programs for medical students. While these incentives may eventually increase the output of physicians in the workforce, the shortage of physicians available is a current problem.

Medical practices, hospitals and other health care employers should affirmatively seek options to address the increased patient expectancy before it becomes an overwhelming concern. One viable option these employers should consider is sponsoring foreign physicians through a J-1 Waiver Program. This article provides a brief overview of the requirements.

An Option for Meeting Increased Patient Demands

With the anticipated increase in demand for physician services, one way for some physician employers to meet patient demand is to consider sponsoring a J-1 Exchange Visitor physician who is completing graduate medical education and training in the U.S. In a patient-care context, this may be a good option for health care providers who treat underserved patient populations.

There are many means by which an employer may sponsor a foreign physician for employment, and in some cases, very highly qualified physicians may self-petition for U.S. permanent residence. With regard to certain J-1 Exchange Visitor physicians, there is an option which requires the physicians to commit to full-time practice for at least three years in a shortage area(s) or providing services to medically underserved patients.

Employing a foreign physician through this option can help meet patient demand and provide consistency of care over the three-year commitment period. Further, during that time the physician may become well established in the area and agree to stay beyond the three-year commitment. This can greatly benefit the underserved patient population as well as bring much-needed relief to a busy practice where existing doctors often have stressful schedules.

Sponsoring a J-1 Physician

A foreign physician who completes graduate medical education and training in J-1 Exchange Visitor status under an ECFMG-sponsored (Education Commission for Foreign Medical Graduates-sponsored) program is subject to a 2-year home-presence requirement. This means that after completing training, the J-1 physician is obliged to return to his or her home country for a two-year period before being permitted to change status to H-1B or L-1 in the U.S. or obtain U.S. permanent residence (i.e., a "greencard").

Recognizing long ago that there are many areas of the country in need of highly trained physicians, Congress provided for J-1 Exchange Visitor physicians to be absolved of the two-year home presence requirement in exchange for providing care on a full-time basis to patients in areas that have been designated by the U.S. Health and Human Services agency as medically underserved or to patients who are underserved. As mentioned, the commitment is for at least three years. Approval of a J-1 Waiver application means that the two-year home presence requirement of the J-1 Exchange Visitor physician is "waived", i.e., the foreign physician is the beneficiary of a "J-1 Waiver".

There are many J-1 Waiver programs available for clinical care, including the Conrad State 30 program, as well as programs such as the Appalachian Regional Commission and Delta Regional Authority programs. There are of course other types of waiver opportunities such as Health and Human Services clinical and non-clinical waivers, Veterans Administration waivers and waivers through other government agencies, but those listed are among the most commonly used for physicians who will engage in clinical care for patients. It should be noted that some programs are limited to specific geographic areas and/or practice types. There are also a few waiver options which do not require a shortage-area commitment of the foreign physician, including persecution waivers and hardship waivers.

What Are the J-1 Waiver Requirements?

There are various options for obtaining a J-1 Waiver. One of the most widely used J-1 Waiver programs is the Conrad State 30 program. Under this program, the basic requirements are as follows:

  • Contract between the waiver sponsor and the physician for full-time patient care for at least three years
  • Full-time work in a Health Professional Shortage Area (HPSA), a Medically Underserved Area (MUA) or serving a Medically Underserved Population (MUP)
  • Agreement to commence work within 90 days of receiving the waiver

These are the basic requirements under the Conrad State 30 J-1 Waiver Program. There may be, and typically are, additional requirements dictated by each state health department, such as documentation of the need for specialty medical care if a specialist is being sponsored, etc. The requirements vary from state-to-state and are sometimes revised.

Further, although the minimum J-1 waiver commitment is for a three-year period, if extenuating circumstances arise through no fault of the foreign physician, it is possible that the foreign physician may transfer to a different shortage-area employer.

In addition, it should be noted that the rules and requirements are different in the other J-1 Waiver Programs, which are too diverse to be appropriately addressed in this article.

What Are the J-1 Waiver Processing Steps?

Processing steps vary slightly among the different J-1 Waiver programs. By way of example, a J-1 Waiver Application under the Conrad State 30 program is first filed by the waiver sponsor (prospective employer) with the state health department in the state where the physician will provide patient care. To be clear, the employer seeks the J-1 waiver on behalf of the foreign physician, so the responsibility for filing the waiver application is the prospective employer's.

If the state health department supports the placement of the J-1 physician with the waiver sponsor, the state health department will forward the J-1 Waiver Application to the U.S. Department of State (DOS) Waiver Review Division with a request that it recommend to the U.S. Citizenship and Immigration Service (USCIS) a waiver of the J-1 Exchange Visitor physician's two-year home-presence requirement.

The DOS Waiver Review Division will review the J-1 Waiver Application anew, typically taking four to eight weeks for processing. If DOS agrees with the placement, it will forward the J-1 Waiver Application to USCIS with a favorable recommendation.

USCIS will conduct final processing of the J-1 Waiver Application. Generally, USCIS will take about a month to issue a decision, but processing times may change over time.

With the issuance of an approval notice, the J-1 Physician's two-year home-presence requirement is "waived", but still requires at least three years of work in H-1B status to meet the J-1 Waiver commitment.

When Can the Doctor Begin Working?

While approval of a J-1 Waiver application absolves the J-1 Physician of his or her home-presence requirement, it does not provide the physician with a right to remain in the U.S. nor with authorization to work toward completion the three-year J-1 Waiver commitment. A work-authorized status must be secured.

In the example of the Conrad State 30 Waiver, in order for the waivered physician to begin working toward completion of the three-year J-1 Waiver commitment, the sponsoring employer should file a petition for H-1B status on behalf of the physician. Note that the H-1B petition is the prospective employer's petition. Pursuant to Department of Labor Regulations, the employer may not require the foreign physician to pay legal fees or related expenses, nor recoup these from the foreign physician in any manner. When H-1B status is in place (i.e., an I-94 record has been created confirming the physician's H-1B status), the physician may report
for employment.

Conclusion

The Affordable Care Act's expansion of health care insurance availability will magnify the need for additional physicians in the workforce to meet patient needs. Practices, hospitals and other employers of physicians should affirmatively consider their options to handle the expected increase in their patient base. An attractive option that may be unknown to many employers is sponsorship of a foreign physician through a J-1 Waiver program.

Health care employers with underserved patients may find that sponsoring a J-1 Exchange Visitor physician may be just what the doctor ordered to meet burgeoning patient requirements expected to result from the enactment of the Affordable Care Act. With the help of experienced immigration and contract law counsel, the process should go smoothly and result in benefit to underserved patient populations, the sponsoring employer and the foreign physician.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Catherine V. Wadhwani
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