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Bar News - January 18, 2017

Health Law: The Doctor Will See You Now: Foreign-Born Physicians in the US


Facing a current and increasing shortage of physicians in the United States, health care facilities are turning to foreign-born physicians to meet their hiring needs.

According to the Association of American Medical Colleges (AAMC), there will be a shortage of between 61,700 and 94,700 physicians in the United States by 2025. An aging physician population, combined with population growth and an increased number of insured patients under the Affordable Care Act, are the main factors in expected shortages, already on the rise since 2014. Despite AAMC’s report that American medical school enrollment reached an all-time high of 20,630 students in 2015, the physician shortage will continue unless there are major changes in the US health care system.

Q: Is New Hampshire affected by the physician shortage?

The threat of physician shortages is one that is already facing the Granite State. In April 2016, former Governor Maggie Hassan issued an executive order to create the Governor’s Commission on the Health Care Workforce. The commission was created to address New Hampshire’s health care workforce shortage, both in the short and long term.

Q: How are the shortages being addressed?

To help meet their workforce needs, health care facilities in New Hampshire and other states have started turning to foreign-born physicians. Through the J-1 Exchange Visitor Visa Alien Physician Program, foreign-born physicians can enter the United States to participate in graduate medical education or training for up to seven years. However, once their education or training is completed, the physician must return to his or her home country for at least two years. This is known as the J-1 Home Residency Requirement (HRR).

Q: If the physician must return home upon program completion, then how is he or she helping to fill US health care workforce shortages?

If a foreign-born physician wishes to remain in the US after completing his or her program, a J-1 waiver application must be filed. There are various types of J-1 waivers, but for physicians, an interagency government program known as the “Conrad State 30 Program” (hereinafter “Conrad 30”) is most popular. Through this program, a foreign medical graduate can have their HRR waived and remain in the US to serve an in-country health care facility.

Q: How does Conrad 30 work?

For a foreign-born physician to apply for a J-1 waiver under Conrad 30, he or she must meet and agree to certain criteria mandated by the US Department of State (DOS), including having a full-time employment offer from a US health care facility in a designated Health Care Professional Shortage Area (HPSA) or a facility that serves HPSA patients. An HPSA is a government-designated area that has too few providers for its region. The foreign-born physician must agree to begin employment within 90 days of J-1 waiver approval and have a signed contract binding him or her to the facility for at least three years at 40 hours per week.

Each state’s health department is allocated 30 Conrad J-1 waivers per fiscal year. Twenty of the 30 spots are reserved for physicians located at an HPSA facility, while the remaining 10 spots are for those serving HPSA patients at a facility located outside the HPSA. The process for requesting a J-1 waiver under Conrad 30 varies by state.

Q: What is the process in NH?

The Conrad 30 program in New Hampshire is governed by the Division of Public Health Services (DPHS), Rural Health and Primary Care Section (RHPC) of the New Hampshire Department of Health and Human Services. The health care facility sponsoring the foreign-born physician will file the J-1 waiver application directly with DPHS, RHPC. If approved, the state’s recommendation of the J-1 waiver will be forwarded to the DOS Waiver Review Division. If recommended by the DOS, the US Citizenship and Immigration Services (USCIS) will be electronically notified. It is then up to the USCIS to determine whether to grant or deny the physician’s J-1 waiver.

Q: What happens if the USCIS denies the J-1 waiver?

If the J-1 waiver application is denied by the USCIS, the process ends. The foreign-born physician must return to his or her home country to fulfill the two-year HRR. Absent any underlying concerns regarding the physician, however, the USCIS generally does not deny J-1 waiver applications that have already been recommended by the individual state and the DOS.

Q: What happens if the USCIS grants the J-1 waiver?

If the foreign-born physician’s J-1 waiver is granted by the USCIS, he or she will be notified of the favorable decision. The health care facility sponsoring the physician must file a petition for a nonimmigrant worker with the USCIS, to change the physician’s immigration status from a J-1 visa to an H-1B visa. Once the H-1B visa petition is approved, the physician can begin serving HPSA patients.

Q: Can a foreign-born physician with a waived HRR remain in the US permanently?

Once a foreign-born physician has complied with the three-year HPSA service requirement under his or her Conrad 30 J-1 waiver, he or she becomes eligible to apply for permanent residency. Permanent residence (i.e. green card status) allows an individual to work and reside in the US on a permanent basis. This is a significant change for those once holding a temporary, employer-specific H-1B visa.

For many years, US health care facilities have been operating under the mistaken assumption that there are enough US physicians to supply the country’s demands. However, due to recent research regarding physician shortages in the country, it is clear that this is not the case. To meet rising physician demand, health care facilities in the US must consider alternative options to fulfill their needs. Foreign-born physicians are a real solution to a growing problem. By sponsoring J-1 visa holders and navigating the J-1 waiver process, health care facilities can explore a world of talent to meet their hiring needs.

Autumn Misiolek Tertin

Attorney Autumn Misiolek Tertin joined GoffWilson in September 2014, and her practice focuses solely on immigration law, both in the employment-based and family-based sectors. Prior to joining the firm, she practiced in Massachusetts, where she primarily focused on PERM labor certifications, immigrant petitions, and adjustment of status applications.

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