AUTHOR: Otieno Ombok
A bill seeking to make the Conrad State 30 J-1 visa waiver program permanent and improve the pathway for physician immigration to the U.S. with changes to H-1B visas, Green card issuance and national interest waiver requirements has been introduced by a bipartisan group of four Senators: Amy Klobuchar (D-MN), Jerry Moran (R-KS), Susan Collins (R-ME), and Heidi Heitkamp (D-ND).
The Conrad State 30 Program, also known as the J-1 Visa Waiver program, was enacted in 1994 as a national initiative that permits states to recommend visa waivers for physicians recruited to care for patients in rural and underserved areas. Under the Program, foreign medical graduates who undertake medical residency and fellowship training in the U.S. agree to practice medicine in underserved communities for at least three years in exchange for a waiver of certain visa restrictions, including the two-year foreign residency requirement. These physicians cannot obtain work visas, such as H-1B, or apply for U.S. permanent residency unless they obtain a J-1 waiver or reside abroad for at least two years. The Program, due to sunset September 30, 2015, has been extended numerous times.
The Conrad State 30 and Physician Access Act (S. 616), introducedMarch 19, 2013, would provide additional incentives for more doctors to participate in the Program. S. 616substantially builds on S. 1979, the Conrad State 30 Improvement Act, introducedby Senator Kent Conrad (D-ND) in the last Congress. S. 1979would have permanently reauthorized the Program. S. 616 seeks to remove the sunset of the Program, improve its functioning, and allow expansion to better meet U.S. healthcare needs. A physician shortage crisis of as many as 200,000 doctors is projected by 2020. This shortage will be felt hardest in rural, inner city, and other medically underserved communities.
Key provisions of S. 616 include:
- providing a mechanism to increase Conrad 30 waivers each time 90% of waivers are filled nationwide;
- creating three new Conrad 30 slots per state dedicated for academic medical centers;
- instituting Conrad 30 program physician employment protections, such as:
(a) expanding definition of 90-day rule within which to begin J-1 waiver employment to the later of 90 days after receiving waiver, or 90 days after completing graduate medical training, or 90 days after receiving nonimmigrant status or employment authorization;
(b) permitting J-1 waiver physician to change employers during the 3-year period if: i) USCIS determines existence of extenuating circumstances; or ii) interested State agency that requested the waiver attests that extenuating circumstances exist; or iii) where alien elects not to pursue a determination of extenuating circumstances, if terminated J-1 waiver physician is employed for the remainder of the 3-year period, “and 1 additional year for each termination,” at another designated health facility/organization;
(c) granting terminated J-1 waiver physician a grace period of 120 days within which to file a petition with USCIS for employment with another employer in a medically underserved area (physician considered to be maintaining lawful status in an authorized stay during the 120-day period);
(d) granting dual intent to foreign physicians seeking graduate medical training;
- clarifying physician eligibility for national interest waiver green cards by:
(a) extending the “Flex 10” concept to the physician NIW Green card context;
(b) broadly defining the 5-year service requirement to include period spent working during or in conjunction with J-1 training;
(c) clarifying that an alien physician with a foreign medical degree deemed sufficient for acceptance to an accredited U.S. medical residency/fellowship program is a member of the professions holding an advanced degree or its equivalent;
- better aligning visa terms with residency training and physician practice. It cures H-1B cap-gap problem for foreign physicians completing medical training in H-1B status by automatically extending nonimmigrant status and work authorization to October 1, provided an H-1B extension petition is timely filed with USCIS. Such automatic status and employment authorization will terminate 30 days from the date such petition is rejected, denied or revoked. However, a physician’s status and employment authorization will automatically extend to October 1 of the next fiscal year if all H-1B visas are issued.
- clarifying that J-1 spouses and children are not subject to Section 212(e) foreign residency requirement.
The “Gang of 8” senators working on comprehensive immigration reform likely will include S.616 as part of a broader package.
Jackson Lewis attorneys in the Immigration Group are available to assist healthcare employers with all their immigration needs, including visa sponsorships for physicians, nurses, physical therapists, speech therapists, J-1 waivers for physicians, and Form I-9 and E-Verify compliance.