On September 30, 2015, President Obama signed a Continuing Resolution to extend funding of the US government through December 11, 2015, and temporarily avoid a government shutdown.  See http://www.wsj.com/articles/senate-passes-government-funding-bill-prior-to-midnight-deadline-1443623598.  The Continuing Resolution contained extensions for several important immigration programs including:

  • EB-5 Regional Centers
  • Conrad 30 J-1 Physician Waivers
  • Nonminister Religious Workers, and
  • E-Verify.

These programs were continued unchanged until December 11, 2015.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

Notwithstanding the years’ old gridlock in regard to immigration reform, some significant changes will take place on or before September 30th.  It’s not that Congress has had an epiphany.  Several important immigration laws will sunset on September 30th unless reauthorized by Congress.  If Congress does nothing, four major immigration programs will come to an end: E-Verify, the Conrad State 30, EB-5 and the Special Immigrant Non-minister Religious Worker programs.

E-Verify is the mostly voluntary electronic employment eligibility verification program used by hundreds of thousands of US employers in conjunction with their I-9 employment eligibility verification of new workers.

The Conrad State 30 program allows each state and the District of Columbia to recommend up to 30 waivers per year of the 2-year home-residency requirement imposed upon J-1 physicians who have completed medical training in the US.  In exchange for the waiver, the physician must practice medicine in a medically underserved area pursuant to state and federal guidelines. Conrad 30 waivers have resulted in countless medically underserved Americans having access to medical care that otherwise would not be available.

EB-5 is the employment creation visa that provides a path to permanent residence for aliens who invest $1 million or more in a new commercial enterprise which creates 10 or more full time jobs.  There is an option for investment of $500,000 in a high unemployment area known as a “targeted employment area”.  The EB-5 program has enabled billions of dollars in investment in the US and many thousands of new full-time jobs for US workers.

The Non-minister Religious Worker program is much more limited than the other 3 programs, but no less important for the religious organizations who rely on these workers.

These are major programs whose sunset would have such extraordinary implications.  As such, it is unlikely that they will all sunset; however, there may be material changes.  In anticipation of change, many potential EB-5 investors are filing their applications, many medical providers are seeking Conrad 30 waivers and religious organizations are petitioning for their currently eligible workers.

By September 30th, whether there is Congressional action or inaction each of these 4 immigration programs will be effected, resulting in their substantive change, simple reauthorization or termination.

The US Department of State (State Department or DOS) computer systems are not expected to be online again before next week after experiencing “technological systems issues” (a hardware failure) on June 9th. This information came from the State Department yesterday, June 17th, in an update following their initial announcement regarding the problem last Friday, June 12, 2015.

This has caused DOS’s Bureau of Consular Affairs to experience issues affecting overseas passport and visa systems.  This systems issue is without restriction to particular countries, documents or visa types.  Indeed, the effect seems to reach everyone from the nonimmigrant visa applicant, to the US citizen in need of a passport abroad.

Assistance from the State Department is available to nonimmigrant visa applicants who need to travel for urgent humanitarian reasons and DOS has indicated that it is always able to issue an emergency passport to a US citizen who is overseas and has an urgent need to travel.

Yet, one should be prepared that visa appointments and issuance of some visas will be delayed.  A June 15th update from the State Department said that some visa applicants will “be contacted directly to reschedule their appointments”.

Affected parties will want to seek the guidance of immigration counsel to assess potential impacts on employment start dates and such questions as whether in-country processing is available and should be used for a change or extension of nonimmigrant status instead of processing abroad, among other possible issues.

DOS stated that the “failure is preventing the Department from processing and transmitting biometric data checks at visa-issuing embassies and consulates.”  This affects the Department’s ability to meet its legal  requirements to screen  visa applicants before issuing visas for travel.  The State Department offered its apologies to those affected and indicated that it has more than 100 private and public sector computer experts working “around the clock” to resolve the problems as quickly as possible while of course keeping in mind its responsibility to screen visa applicants as part of its critical border security responsibilities.

DOS stated that it will continue to provide regular updates on their website, travel.state.gov.

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Catherine Wadhwani is a Partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

By Catherine V. Wadhwani and Matthew J. Redding

The Patient Protection and Accountable Care Act (the Affordable Care Act) contains a number of provisions aimed at increasing access to health care insurance to millions of Americans without coverage.  This increased access to health care insurance will lead to an increased demand for physician services.  In order to provide for the increase in physician demand, the Affordable Care Act introduced a number of incentives aimed at increasing the number of physicians in the workforce, including modifying federal Medicare payments for medical residency training, authorizing additional funding for medical residency training, and offering additional loan forgiveness and scholarship programs for medical students.  While these incentives may eventually increase the output of physicians in the workforce, the shortage of physicians available is a current problem.

Medical practices, hospitals and other health care employers should affirmatively seek options to address the increased patient expectancy before it becomes an overwhelming concern.  One viable option these employers should consider is sponsoring foreign physicians through a J-1 Waiver Program.  This article provides a brief overview of the requirements.

 

An Option for Meeting Increased Patient Demands

With the anticipated increased demand for physician services, one way for some physician employers to meet patient demand is to consider sponsoring a J-1 Exchange Visitor physician who is completing graduate medical education and training in the U.S.  In a patient-care context, this may be a good option for healthcare providers who treat underserved patient populations.

There are many means by which an employer may sponsor a foreign physician for employment, and in some cases, very highly qualified physicians may self-petition for U.S. permanent residence.  With regard to certain J-1 Exchange Visitor physicians, there is an option which requires the physicians to commit to full-time practice for at least three years in a shortage area(s) or providing services to medically underserved patients.

Employing a foreign physician through this option can help meet patient demand and provide consistency of care over the three-year commitment period.  Further, during that time the physician may become well established in the area and agree to stay beyond the three-year commitment.  This can greatly benefit the underserved patient population as well as bring much-needed relief to a busy practice where existing doctors often have stressful schedules.

 

Sponsoring a J-1 Physician

A foreign physician who completes graduate medical education and training in J-1 Exchange Visitor status under an ECFMG-sponsored (Education Commission for Foreign Medical Graduates-sponsored) program is subject to a 2-year home-presence requirement.  This means that after completing training, the J-1 physician is obliged to return to his or her home country for a two-year period before being permitted to change status to H-1B or L-1 in the U.S. or obtain U.S. permanent residence (i.e., a “greencard”).

Recognizing long ago that there are many areas of the country in need of highly trained physicians, Congress provided for J-1 Exchange Visitor physicians to be absolved of the two-year home presence requirement in exchange for providing care on a full-time basis to patients in areas that have been designated by the US Health and Human Services agency as medically underserved or to patients who are underserved.  As mentioned, the commitment is for at least three years.  Approval of a J-1 Waiver application means that the two-year home presence requirement of the J-1 Exchange Visitor physician is “waived”, i.e., the foreign physician is the beneficiary of a “J-1 Waiver”.

There are many J-1 Waiver programs available for clinical care, including the Conrad State 30 program, as well as programs such as the Appalachian Regional Commission and Delta Regional Authority programs.  There are of course other types of waiver opportunities such as Health and Human Services clinical and non-clinical waivers, Veterans Administration waivers, and waivers through other government agencies, but those listed are among the most commonly used for physicians who will engage in clinical care for patients.  It should be noted that some programs are limited to specific geographic areas and/or practice types.  There are also a few waiver options which do not require a shortage-area commitment of the foreign physician, including persecution waivers and hardship waivers.

 

What are the J-1 Waiver Requirements?

As mentioned, there are various options for obtaining a J-1 Waiver. One of the most widely used J-1 Waiver programs is the Conrad State 30 program.  Under this program, the basic requirements are as follows:

  • Contract between the waiver sponsor and the physician for full-time patient care for at least three years
  • Full-time work in a Health Professional Shortage Area (HPSA), a Medically Underserved Area (MUA) or serving a Medically Underserved Population (MUP)
  • Agreement to commence work within 90 days of receiving the waiver

These are the basic requirements under the Conrad State 30 J-1 Waiver Program. There may be, and typically are, additional requirements dictated by each state health department, such as documentation of the need for specialty medical care if a specialist is being sponsored, etc.  The requirements vary from state-to-state and are sometimes revised.

Further, although the minimum J-1 waiver commitment is for a three-year period, if extenuating circumstances arise through no fault of the foreign physician, it is possible that the foreign physician may transfer to a different shortage-area employer.

In addition, it should be noted that the rules and requirements are different in the other J-1 Waiver Programs, which are too diverse to be appropriately addressed in this article.

 

What are the J-1 Waiver Processing Steps?

Processing steps vary slightly among the different J-1 Waiver programs.  By way of example, a J-1 Waiver Application under the Conrad State 30 program is first filed by the waiver sponsor (prospective employer) with the state health department in the state where the physician will provide patient care.  To be clear, the employer seeks the J-1 waiver on behalf of the foreign physician, so the responsibility for filing the waiver application is the prospective employer’s.

If the state health department supports the placement of the J-1 physician with the waiver sponsor, the state health department will forward the J-1 Waiver Application to the U.S. Department of State (DOS) Waiver Review Division with a request that it recommend to the U.S. Citizenship and Immigration Service (USCIS) a waiver of the J-1 Exchange Visitor physician’s two-year home-presence requirement.

The DOS Waiver Review Division will review the J-1 Waiver Application anew, typically taking four to eight weeks for processing.  If DOS agrees with the placement, it will forward the J-1 Waiver Application to USCIS with a favorable recommendation.

USCIS will conduct final processing of the J-1 Waiver Application.  Generally, USCIS will take about a month to issue a decision, but processing times may change over time and depending on other factors.

With the issuance of an approval notice, the J-1 Physician’s two-year home-presence requirement is “waived”, but still requires at least three years of work in H-1B status to meet the J-1 Waiver commitment.

 

When can the Doctor Begin Working?

While approval of a J-1 Waiver application absolves the J-1 Physician of his or her home-presence requirement, it does not provide the physician with a right to remain in the U.S. nor with authorization to work toward completion the three-year J-1 Waiver commitment.  A work-authorized status must be secured.

In the example of the Conrad State 30 Waiver, in order for the waivered physician to begin working toward completion of the three-year J-1 Waiver commitment, the sponsoring employer should file a petition for H-1B status on behalf of the physician.  Note that the H-1B petition is the prospective employer’s petition.  Pursuant to Department of Labor Regulations, the employer may not require the foreign physician to pay legal fees or related expenses, nor recoup these from the foreign physician in any manner.  When H-1B status is in place (i.e., an I-94 record has been created confirming the physician’s H-1B status), the physician may report for employment.

 

Conclusion

The Affordable Care Act’s expansion of health care insurance availability will magnify the need for additional physicians in the workforce to meet patient needs.  Practices, hospitals and other employers of physicians should affirmatively consider their options to handle the expected increase in their patient base.  An attractive option that may be unknown to many employers is sponsorship of a foreign physician through a J-1 Waiver program.

Health care employers with underserved patients may find that sponsoring a J-1 Exchange Visitor physician may be just what the doctor ordered to meet burgeoning patient requirements expected to result from the enactment of the Affordable Care Act.  With the help of experienced immigration and contract law counsel, the process should go smoothly and result in benefit to underserved patient populations, the sponsoring employer, and the foreign physician.

 

 

Persons who are not U.S. citizens but are present in the U.S. must report a change of address to the U.S. Citizenship and Immigration Services (USCIS), with few exceptions, within 10 days of a move. 

To make the address reporting process more user-friendly, USCIS considered customer feedback and today introduced a new online Change of Address tool.  Using this online tool, customers will be prompted by questions to complete a single form in order to update address information.  The system should then generate an email to confirm the address change. This enhanced Change of Address tool is available beginning today and was designed to be compatible with more Web browsers.   

Those excepted from this reporting requirement include certain diplomats (A status), official government representatives to an international recognized organization (G status), and certain nonimmigrants who do not possess a visa or are in the U.S. for fewer than 30 days.

Ms. Wadhwani is a partner in Fox Rothschild LLP’s Immigration Practice Group.  She may be reached at cwadhwani@foxrothschild.com.

 

The Pennsylvania Department of Health (PA DOH) announced on September 12, 2013, that with the start of the new fiscal year on October 1, 2013, it will begin accepting J-1 Waiver applications under the Appalachian Regional Commission (ARC) Waiver Program.

The waiver programs were established to waive the 2-year home-presence requirement of foreign medical graduates who complete their graduate medical education and training in the US under the J-1 Exchange Visitor visa.  The home-presence requirement can be waived if the foreign physician contracts to work for 3 years providing care to medically underserved patient populations.

For years, DOH had only accepted J-1 Waiver applications for physicians under the Conrad 30 Program.  And for years, that was enough to meet demand.  Recently, however, there has been an increase in the number of J-1 Waiver applications filed by health care employers, resulting in an insufficient number of J-1 Waiver spots for applicants.

Traditionally, DOH has given priority to primary care (i.e., Family Practice, Internal Medicine, Pediatrics, Psychiatry and Obstetrics/Gynecology) waiver applications.  With demand outstripping the availability of J-1 Waiver number spots, many waiver sponsors and beneficiaries in the medical specialty fields were left with a great deal of uncertainty.  Employers wanted some degree of assurance that they would ultimately be able to employ much-needed specialists whom they sponsored for J-1 waivers to work in designated medical shortage areas.  Foreign specialist physicians wanted confidence that if they waited out DOH’s J-1 Waiver processing phases, they would have a reasonable chance of waiver approval so that they could obtain status to begin working for their waiver sponsors (rather than finding themselves without a job after the lengthy wait).  It is speculated that this questionability may have caused specialists to focus their job searches in other states.  With much of the Commonwealth being rural and in need of specialist physicians, that was not a favorable situation.  Of course, even with the acceptance of ARC J-1 Waiver applications, there is no guarantee that each and every specialist waiver application will be approved.

Physician employers looking to hire primary care physicians should be aware of the ARC recruitment requirements, which are specific.  It would be prudent to try to comply with the ARC requirements just in case no US physician can be found for hire.

A few details about the ARC J-1 Waiver Program:

  • Only applications sponsoring primary care physicians are eligible.
  • The physician must work in an HHS-designated Health Professional Shortage Area (52 of Pennsylvania’s 67 counties are within the Appalachian Region).

Of course there are more details regarding the program, and DOH has indicated that it will soon publish additional information and guidelines.

Ms. Wadhwani is a partner in Fox Rothschild’s Immigration Practice Group.  She may be reached at cwadhwani@foxrothschild.com

 

This morning, the Pennsylvania Department of Health (PA DOH) announced that it has changed the Pennsylvania rules regarding the J-1 Physician Waiver Program.  DOH has established three filing periods, which could result in the Conrad 30 numbers being assigned earlier in the fiscal year. 

With this in mind, if you are a Pennsylvania health care provider in need of an additional physician, and believe there is a chance that you may end up offering employment to a foreign national physician who is in need of a J-1 Waiver, it is best to conduct your recruitment with the DOH’s new J-1 waiver processing dates in mind.  Below is a summary of information from DOH:

Effective immediately, the following schedule will be followed for J-1 waiver application processing:

     Initial Application Period: September 30 – December 15

  • All complete applications submitted during this period will be reviewed.
  • Successful applicants will be notified of waiver support on or before January 10.
  • This will include applications for specialty physicians and Flex 10 slots.

     Second Application Period: January 1 – June 15

  • All complete applications submitted during this period will be reviewed.
  • Successful applicants will be notified of waiver support on or before July 10. 
  • This will include applications for specialty physicians and Flex 10 slots.

     Final Application Period: July 1 – September 15

  • All complete applications submitted during this period will be reviewed.
  • Successful applicants will be notified of waiver support on or before September 30.
  • This will include applications for specialty physicians and Flex 10 slots.

Foreign physicians who complete their graduate medical education (GME, residency or fellowship) in J-1 Exchange Vistior classification are subject to a two-year home-presence requirement unless they obtain a waiver.  Included among the J-1 waiver options are waivers processed initially by state health departments which require that the foreign physician practice in a designated shortage area on a full-time basis for no fewer than 3 years, among other things.

The J-1 Waiver Program has attracted highly qualified physicians to areas in great need of medical services.  The Conrad 30 J-1 Waiver Program was recently renewed (see prior blog post).

Yesterday, Friday, September 28, 2012, President Obama signed into law S. 3245.  As reported in an earlier post, S. 3245 extends four important immigration programs through September 30, 2015.  The programs that have now been extended are:  the EB-5 Regional Center Program for Immigrant Investors (investing at least $1MM or $500K, depending on the circumstances); the E-Verify Employment Eligibility Verification Program; the Special Immigrant Non-Minister Religious Worker Program; and the Conrad State 30 J-1 Visa Waiver Program for Physicians.  For more information about any of these programs, please contact our office.

The Senate passed a bill yesterday that would extend several key immigration programs for a period of 3 years until September 30, 2015.  http://thomas.loc.gov/cgi-bin/query/z?c112:S.3245: The bill proposes 3-year extensions of the following:

  • The EB-5 Regional Center Immigrant Investor program which enables the pooling of capital by immigrant investors whose investments in the US will create at least 10 US worker jobs each. 
  • The government’s E-Verify program, an online system which enables employers to instantly check the work authorization of newly hired employees during the employment verification process.
  • The Special Nonimmigrant Non-Minister Religious Worker Program.
  • The Conrad State 30 J-1 Visa Waiver Program which provides an opportunity for physician shortage areas to attract highly skilled foreign physicians.

The bill had been introduced in May, proposing permanent reauthorization of the programs, but was amended to limit the extensions to 3 years each before being passed by the Senate. The bill must also be passed by the House and signed by the President in order to become law.