Congress Considers Sweeping Legislation to benefit J-1 and H-1B Physicians

Jan Pederson, Attorney
Monday, July 13, 2015 - 11:30am
Jan Pederson, Shareholder

The United States Senate is considering legislation, Senate Bill 1189, the “Conrad State 30 and Physician Access Act”, which would eliminate some of the burdens of both J-1 and H-1B physicians under current laws and policies and provide greater access to physicians by rural and urban medically underserved Americans. The bill was introduced by Senator Amy Klobuchar (Democrat-Minnesota) and is co-sponsored by Senator Heidi Heitkamp (Democrat-North Dakota), Senator Jerry Moran (Republican-Kansas) and Senator Susan Collins (Republican-Maine). The legislation was introduced on May 15, 2015 and is pending in the Senate Judiciary Committee. There is similar legislation pending in the House of Representatives and this legislation will be analyzed in the next blog.

Jan Pederson, of Maggio + Kattar , along with other members of the International Medical Graduate Task Force, met with Senate staff members on June 17, 2015 to urge support for the legislation. The main provisions of the law, which would help alleviate increasing physician shortages in both rural and urban medically underserved areas are summarized below. The current Conrad State 30 law will expire on September 30, 2015. The bill is currently pending action before the Senate Judiciary Committee. Action is needed by employers and physicians who have an interest in obtaining permanent status of Indian physicians in the eternal EB2 Indian line for permanent residence and employers interested in recruiting and retaining physicians in medically underserved rural and urban areas in America.

Main provisions of the bill:

  • Permanent reauthorization of the Conrad State 30 program. The current Conrad State 30 program expires on September 30, 2015.
  • Eliminates denials of J-1 and B-1 visas under 214(b) to alien physicians coming for graduate medical training to take credentialing examinations. Section 214(b) is a provision of the Immigration and Nationality Act which permits a consular officer to deny a B-1 or J-1 visa because the consular officer believes the applicant is an intending immigrant. This is the most common reason for denial of visitors visas (B-1/B-2) and J-1 and J-2 visas and there is no appeal from such denials.
  • Permits J-1 waivered physicians to complete the waiver service commitment in any work authorized status, such as J-2, H-4, E-2, L-2, I-485 pending, TPS or asylum status. It will eliminate the current law that requires physicians to complete the waiver time commitment only in H-1B status.
  • Eliminates the eternal waiting line for India and China born EB2 physicians, provided the physician completes five years’ work in a medically underserved area. Once the five year physician national interest commitment is completed, the physician can obtain permanent residence, even if the EB2 priority date is not current. Upon completion of the five year commitment, the EB2 physicians converts to EB1 status. Currently, physicians in the Indian or China EB2 green card line wait many more than five years for permanent residence. This provision will provide predictability and security for dedicated physicians who care for America’s forgotten medically underserved patients. The bill would eliminate the waiting line for those who completed their work in medically underserved areas prior to enactment of the legislation and includes the spouses and children of qualifying physicians.
  • Permits J-1 physicians with FLEX J-1 waiver slots to obtain the approval of physician national interest petitions. FLEX slots are State 30 waiver slots granting physicians permission to work in an area not designated as medically underserved, but who treat patients who reside in medically underserved areas.
  • Permits physicians in any nonimmigrant status (including J-1) status to count time in residency training toward the five year Physician National Interest waiver commitment and eliminates the requirement to file new NIW petitions each time job locations changes.
  • Physicians intending to pursue the physician national interest petition pathway to a green card, may file I-485 permanent residence applications, along with I-131 advance parole travel document and I-765 work permit applications while completing the five year waiver commitment. Thus, India and China born EB2 physicians may file a green card application even though the EB2 priority date is not current. In effect, when the five year service commitment is completed, the EB2 I-140 national interest petitions converts to an EB1 petition. The benefits include spouses and children of such alien physicians. This provision will put qualifying India and China born physicians in the same position as physicians born in other countries and will increase employment opportunities for spouses of such physicians.
  • Employment Protections for Physicians

    In response to reports of some abuses by a few employers, this legislation provides protections to physicians who may abruptly find themselves out of work and out of status. Under current regulations, if the J-1 waivered physician’s employment in H-1B status is terminated during the three year waiver commitment, the physician is often immediately out of status and must scramble for a new job, have a new qualifying employer immediately file an H-1B transfer petition demonstrating extenuating circumstances to USCIS. Both the transfer employer and the physician do not know whether the USCIS will find “extenuating circumstances” until the end of the process, impeding the ability of employers to be certain a physician can complete the work transfer. Physicians must often depart from the country and return to regularize their H-1B status. While most employers are very accommodating when an employment situation works out, there are some who abruptly terminate the physician without notice and these provisions are designed to aid physicians who unfortunately find themselves in this position. The bill provides for a grace period of 120 days from the date of employment termination with the waiver employer to locate new employment and file a H-1B transfer petition. This is of great benefit to physicians and employers as the physician will have four months to seek a transfer job; sign contracts and onboard with the transfer employer. The bill would permit a transfer without the uncertainty and anxiety inherent in the current process by permitting a menu of transfer options from one medically underserved area to another, which include:

    • Demonstrating extenuating circumstances under the current regulations; or
    • Providing a letter from the state Department of Health which recommended the waiver approval stating extenuating circumstances exist for the transfer; or
    • Physician agrees to extend J-1 waiver commitment by one year for each transfer. If this option is chosen, no explanation need be provided for the transfer.

    The bill adds new contract requirements for waivers in all states, including:

    • Prohibition of covenants not to compete. A covenant not to compete is an employment contract provision which provides that a physician may not practice medicine within a specified distance of the waiver locations for a specified period of time. This provision is quite controversial and the prohibition of this provision is frequently a reason a J-1 physician is not hired. A prospective employer who has a non-compete provision in all physician contracts for employed American physicians and cannot include the provision for J physicians is in a legally awkward employment law position. For this reason, we hope the provision will be deleted.
    • Specify the number of on-call schedule and the compensation for on-call time. It is not clear whether on-call time must be compensated.
    • Must specify whether employer or employee will pay for malpractice insurance and the amount.
    • Must specify work locations and affirm that locations will not be changed without the permission of the sponsoring agency.

    Increase in Waiver Opportunities for Physicians.

    The legislation would permit each state Department of Health to award three additional waivers to physicians working at academic medical centers. The bill would also permit states to increase the number of waivers by up to five per year provided the formula for triggering an increase are met. The winner in the provisions to increase waivers are academic medical centers and physicians who want to pursue careers in academic medicine. It is thought by experts in the field that the increase in waiver slots for other positions will not likely be triggered. The provision automatically grants a J-1 physician a six month extension of status if a State 30 waiver in one state is not granted because the first state used all its waivers and a second State 30 waiver application is filed in a state which has not yet used its waivers.

    H-1B Cap Gap Protections for H-1B physicians

    For physicians who complete graduate medical training in H-1B status, for whom an H-1B cap subject petition has been timely filed, H-1B status shall automatically be extended to October 1 of the following fiscal year and can be extended until the following October 1 if the physician’s H-1B petition is not selected in the H-1B lottery held during the fiscal year training is completed, provided the petition is not denied, revoked or withdrawn. Physicians shall be authorized to work during each such gap. This cap gap extension of work authorization status is similar to that granted to F-1 students; but is more generous in that it grants an extra year of work permission if a cap subject employer’s H-1B petition is not granted the first time; there is a second chance, during which time period the physician is permitted to work if otherwise eligible. For example, if a physician is completing residency training in H-1B status on June 30, 2016 and an H-1B cap subject employer files an H-1B cap subject petition on April 1, 2016 with an H-1B start date of October 1, 2016, the physician is authorized to work until October 1, 2017, an extra year. The H-1B cap subject employer must file a second petition on April 1, 2017 to obtain the extra cap gap year.

    J-2 Spouses and Children No Longer Would Be Required to Go Home for Two Years

    The bill would exempt J-2 spouses and children from the two year home residence requirement. There are many situations where it is a hardship for the J-2 spouse or children to return home for two years with the J-1. Thus provision makes it clear that J-2 spouses are cap exempt.

    Action Needed

    Letters supporting this legislation from employers and J-1 and H-1B physicians should be sent to your United States Senators and to members of the Senate Judiciary Committee. The letters should be personalized to detail the reasons why this legislation is needed. A personalized letter is given far more weight that a form letter. Employers in states which quickly use up their slots each year, such as Florida, Texas, New York, California and eighteen other states which used all 30 slots this year are encouraged to express the hardship to patients in underserved areas resulting from the shortage of J-1 waiver slots. Locate your United States Senators and Representatives by clicking here. locate members of the Senate Judiciary Committee by clicking here.

    If you have questions about this legislation, please fee free to email Jan Pederson.