The Perfect Storm: A Physician-Shortage Tsunami

By Peter J. Landis

This is intended to be a brief overview of the process that is normally involved in hiring foreign medical graduates who are in the U.S. as J-1 exchange visitors pursuing postgraduate medical training. It is not intended to be comprehensive. This is a very complicated area of the law, and the facts of each case need to be fully assessed by experienced immigration counsel in order to develop an appropriate course of action and determine the likelihood of success.

Across the U.S. healthcare landscape, there is a growing physician-shortage crisis created by a confluence of factors coming together to create a perfect storm scenario. Since 1980, when U.S. medical schools put a cap on medical school enrollment, the number of newly trained physicians entering practice each year has stayed relatively constant (i.e. approximately 15,500). However, the U.S. population has continued to grow from more than 226 million people in 1980 to more than 281 million people in 2000; an increase of 24%. At the same time, the U.S. population is aging and people are living longer. The 2000 U.S. Census indicates that the age 60-plus population will quadruple by 2010 and, as of 2002, the U.S. life expectancy had increased to 77.3 years. As the baby boomer population begins to retire, so do its doctors, and because older Americans use medical services at a considerably higher rate than younger Americans, the demand for medical services continues to increase significantly. Experts predict a nationwide shortage of 50,000 to 85,000 physicians by 2010, which could increase to as high as 200,000 physicians by 2020. The growing shortage of physicians particularly impacts rural America, where 20% of the U.S. population resides but only 11% of U.S. physicians practice. The crisis is even more acute in primary care where only 20% of graduating residents choose to practice. According to the Maine Hospital Association, there are currently more than 200 physician vacancies in the State of Maine with at least 50% of those in primary care.

In an effort to alleviate the worsening physician shortage, many hospitals and medical facilities look to employ qualified foreign medical graduates, who currently comprise approximately 25% of all physicians undertaking postgraduate medical training in the U.S. Most often these physicians are in the U.S. as J-1 exchange visitors and need to obtain H-1B temporary worker status in order to begin working at the facility. However, §212(e) of the Immigration and Nationality Act prohibits any person who engages in postgraduate medical training in J-1 status from obtaining H-1B status (or lawful permanent residence) until s/he has either returned to his/her home country for at least two years or has obtained a waiver of the home residence requirement. Consequently, in order to employ a J-1 physician who has not satisfied the residence requirement, the facility must work with the physician to obtain a waiver. As a practical matter, the “Conrad 30” waiver program, which is administered by each state’s department of public health or equivalent agency, provides the most viable option for obtaining a waiver of the home residence requirement.

Under the Conrad 30 program, each state may sponsor up to thirty waiver applications per fiscal year for physicians who agree to work at medical facilities located within geographical areas designated by the Secretary of Health and Human Services as medically underserved. Most states do not restrict their waiver programs only to primary care physicians but will also support applications on behalf of specialists who agree to work in medically underserved areas. Further, five of the thirty waiver slots may be used to sponsor physicians who agree to work at facilities that are not physically located within a medically underserved area but serve a significant number of patients who either reside in medically underserved areas and/or are low-income. In order to qualify for a Conrad 30 waiver, the physician must agree to provide medical care for at least forty hours per week for a minimum of three years at the medical facility and must agree to start work within ninety days of the time the J-1 waiver is granted.

The physician initiates the waiver process by filing a waiver application with the U.S. Department of State (DOS). The medical facility then files a sponsorship request with the department of health or equivalent agency in the state of intended employment. If the department of health determines the employment to be in the public interest, it will forward a waiver request to DOS, which will then forward the application with a favorable recommendation to U.S. Citizenship and Immigration Services (USCIS) for final adjudication. Upon approving the waiver request, USCIS will issue an approval notice granting the physician and his/her dependents (J-2) a waiver of the two-year home residence requirement.

Before the physician may begin working, however, the medical facility must file an H-1B petition with USCIS and obtain its approval. H-1B status permits the physician to work only for the petitioning employer in the capacity described in the H-1B petition; it may be granted for an initial period of up to three years and may be extended for three additional years for a maximum allowable stay of six years in the H-1B category. The physician’s dependents are eligible for H-4 status for a period corresponding to the physician’s approved period of H-1B status, but H-4 dependents are not authorized to accept employment.
After the physician has completed the three-year J-1 waiver service obligation in H-1B status, s/he is free to move to other H-1B employment. However, failure to complete the service obligation with the medical facility that sponsored the waiver will result in the physician again becoming subject to the two-year home residence requirement of Section 212(e) of the Act. USCIS will excuse a failure to complete the requirement with the sponsoring facility only in very limited instances, which require the physician to establish that there are extenuating circumstances justifying an early termination of employment.

Lawful Permanent Resident Status
There are two primary avenues for obtaining lawful permanent residence for J-1 waiver physicians: labor certification and the National Interest Waiver (NIW). The labor certification route is a three-step process, the first of which involves filing a PERM labor certification application with the U.S. Department of Labor (DOL) and requires the employer to conduct a test of the labor market in accordance with DOL guidelines to establish that there are no minimally qualified U.S. workers who are willing and available to fill the position. After the PERM application is approved, the employer will file an I-140 Immigrant Visa Petition with USCIS. As part of the petition, the employer must submit documentation showing the financial ability to pay the offered salary since the time the labor certification application was filed. The third and final step of the process is for the physician and his/her eligible family members to file I-485 Adjustment of Status Applications to change their status from nonimmigrant to permanent resident. If the physician pursues the labor certification route, s/he may not file the I-485 Applications until s/he completes the entire three-year J-1 waiver service obligation.

The NIW route allows the physician to skip the labor certification step and immediately file the I-140 Petition on the basis that his/her employment in a medically underserved area is in the national interest. One of the primary benefits of the NIW is that it enables the physician and his/her eligible family members to file the I-485 Applications prior to the completion of the three-year service obligation and allows H-4 dependents to obtain employment authorization. On the other hand, the NIW route extends the physician’s service obligation from three to five years, and permanent residence will not be granted until the physician completes the five years of qualifying employment.