Now that the U.S. Supreme Court has upheld President Donald Trump’s Travel Ban in Trump v. Hawaii, it is important to think about some of the consequences the ban will have on various industries that rely on employing individuals from the affected countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Healthcare is one of those.

The U.S. is already facing shortages of doctors, nurses, and home health aides – especially in more rural areas of the country. The Migration Policy Institute has reported that 30% of all physicians and surgeons are immigrants. Syria and Iran rank 6th and 10th, respectively, of the top 10 countries that “supply” these doctors.

The Association of American Medical Colleges (AAMC), joined by more than 30 other organizations, filed an amicus brief in Trump v. Hawaii supporting their shared view that “[i]nternational health professionals provide essential care in teaching hospitals and their communities, particularly for rural and underserved populations,” and that excluding them “compromises the health security of the nation.” Certain specialties are more heavily populated by foreign-born physicians: geriatric medicine (50%), nephrology (almost 50%), internal medicine (close to 40%), and psychiatry (30%). There is some agreement among those in the industry that these specialties are less attractive to U.S.-born medical students because these fields are less financially lucrative, particularly when the jobs are outside of urban centers. There has been recent particular focus on this trend in psychiatry.

Although the Travel Ban has waiver provisions that theoretically would allow qualified physicians with job offers to apply for and receive visas and enter the U.S., as pointed out by Justice Stephen Breyer in his dissent in Trump v. Hawaii, the waivers are hard to come by and issued unpredictably. Beyond that, Travel Ban 3.0 and its previous iterations have had a chilling effect. Physicians from the affected countries who want to come to the U.S. to pursue their clinical medical training and remain after completion of that training are concerned about whether they can really hope to have a future in the U.S. Questions include:

  • Will they be able to enter and then travel freely?
  • Will their families be able to join them?
  • Will they be separated for long periods of time?

Related, hospitals and clinics are concerned about offering positions to these physicians for similar reasons. The National Resident Matching Program (the “Match”) is the national mechanism through which medical school graduates, whether from U.S. or foreign medical schools, who aspire to do their training in the U.S. rank their chosen graduate medical education programs at which to train. Through that process, medical school graduates ultimately match with training programs, which also rank their chosen or preferred candidates, and prepare to enroll as trainees in those programs. Employers are thus concerned that they could go through the annual Match, plan for the hiring of foreign medical graduates in their training programs, only to later be faced with a situation where those graduates cannot enter the U.S. to start working in their programs.

Of course, at any time, the Administration can remove countries from the Travel Ban list or add countries to that list, thus creating further uncertainty for employers and prospective immigrants.

Please reach out to your Jackson Lewis attorney if you have questions about how the Travel Ban may affect your workforce and the exemptions and waivers that may be available.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.