By Attorney Farhad Sethna © 2013
Despite the best efforts of immigration hardliners to malign the immigration reform proposals passed in the Senate (Senate Bill 744) and pending in the House (HR15), the reform bill has much positive content to offer. One of those features are significant benefits for international medical graduates.
The Senate bill includes several positives for foreign physicians and the House bill makes no changes to the Senate bill. Sections of the Senate bill discussed below were adopted with no change in the HR15.
What are some of the suggested reforms?
Immigrant visa classification – elimination of priority dates for physicians:
Under Senate Bill 744, Section 2307, the allocations of immigrant visas would change. Currently, physicians who obtain wavers from government agencies, or other physicians who are applying for immigrant visas to the USA must go through the lengthy Labor Certification process if they do not otherwise qualify for approval of an immigrant visa. Thereafter they are subject to the lengthy “priority date” backlogs. Under the reform proposal, physicians would qualify for an immediate visa if they were either physicians who (1) completed the foreign residency requirements or (2) had obtained a waiver of those requirements, or (3) an exception was requested by an interested state or federal agency. Therefore, this would completely eliminate the backlogs under EB-2 for any physician who fell into the above categories.
National Interest Waiver:
As a corollary to the above, the Secretary of Homeland Security has the authority to grant a national interest waiver if the physician would work for at least five years in a shortage area or an area with veteran facilities, and a federal agency, or a local, county, regional, or state department of public health determines that the work would be in the public interest. Such time cannot include time spent in “J” status. Additionally, the 5-year clock begins to run when the work commences, not when the petition is filed or approved. If an alien physician moves to continue his or her practice elsewhere, there is no need for another immigrant visa petition to be filed.
Home-country debt fulfillment attestation:
The US government would also require that a foreign physician or healthcare workers attest that they do not owe any financial obligation to their country of origin or residence prior to entering the United States for work in their area of medical expertise (Senate Bill section 2317).
Conrad-30 Program-for J-1 physicians:
Significant changes come to the Conrad State-30 program under subtitle D of the Senate Reform Bill. At Section 2401, the Senate Bill proposes to make the Conrad State-30 program permanent and eliminating the sunset provision. This of course will come as great relief to all physicians affected by the Conrad-30 program and the uncertainties surrounding its re-authorization.
As discussed above, immigrant physicians who have served in a medically underserved area would be exempt from the priority date limitations of the immigrant visa categories. Section 2402 reiterates that benefit. Furthermore, Section 2403 recognizes the need for the workforce to be mobile, and provides significant additional employment protections for physicians including (1) greater flexibility to permit physicians to change employers, (2) allowing physicians to change employers without showing extenuating circumstances provided the physician works for an additional year of service for each change, and (3) that a physician whose employment is terminated may have a 120 day grace period to seek qualifying new employment.
J-1 status extension and “dual intent” codified:
Section 2403 provides an automatic six months extension of J-1 status for physicians whose Conrad-30 waiver is denied because the state (in which the initial application was filed) has reached its maximum number of waivers for that fiscal year as long as the physician agrees to seek a waiver in a state that has not yet reached its fiscal year’s maximum. This will prevent physicians from falling “out of status”. Finally, Section 2403 amends INA §214 (h) (1) and permits dual intent for J-1 physicians (upto now, dual intent was available only for H-1 and L-1 nonimmigrant employment categories).
Additional “Conrad-30″ waiver slots:
Under Section 2404, the Senate proposes to allocate additional Conrad-30 waivers to states if demand exceeds supply, makes these increases indefinite, and allows for upto three waivers per state for physicians in academic medical centers or on medical residency teaching faculties. This will greatly benefit states which traditionally experience high demand and use all their
“Cap-Gap” reduces stress and pressure:
With specific reference to timing of H-1b classification for physicians switching from J-1 status, Section 2405 of the Senate Bill provides for a “Cap-gap” (similar to the CAP-gap provided for F-1 students) who are graduating from medical residencies in J-1 status and will be transitioning to H-1b Cap-subject employment.
Satisfaction of qualifying service other than as H-1:
J-1 physicians who have received waivers may satisfy their service obligations in any employment-authorized nonimmigrant category. This would therefore also include the O-1 category, and would not be limited to solely H-1b status, as is currently the case.
The provisions of the Senate Immigration Reform Bill as mirrored in the House proposal substantially benefit the alien physician as well as medical institutions, health care practices, community health centers and rural practices looking to fill physician slots with qualified professionals. The Reform proposals, if passed into law will substantially benefit the healthcare providers in the United States and especially so for the medically underserved areas and rural healthcare practices. The addition of waiver slots for “high demand” states is a further boon to all concerned. Therefore, the Senate and House Immigration Reform proposals are a triple-win situation- a win for the public, a win for the medical institutions, and a win for the physician. Nothing could be better! To make this a reality, the House of Representatives needs to bring an immigration reform bill to the floor of the house for a vote and pass it, so it could be reconciled with the Senate version and signed into law.
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.