Immigration Physician Law Update

Welcome to the Clark Hill Immigration Update – Physician Edition designed specifically for Physicians, Health Care professionals and their employers.

In this edition, you will find a convenient chart listing the number of J-1 waiver slots available in each state through the Conrad State 30 programs. We also present our top five list of important considerations for waiver applications. Finally, we will discuss the legal requirements for terminating or changing employer when the three year obligation is still ongoing and has not been completed.

We invite and welcome questions or comments so that we can continue this bulletin to best serve you and your personal needs. Please email us with your questions and comments at RFreedman@ClarkHill.com and KMehta@ClarkHill.com .

FY 2012 Conrad State 30 Program Update

As of this writing, most Conrad State 30 Programs for the current fiscal year are still open and accepting applications. There is still time to file a J-1 waiver application in some states for those Physicians finishing their training in 2012.

Prior to applying for a waiver or signing an employment contract, it is advisable for your attorney to contact the Program Administrator of the J-1 Program in the State where you anticipate working to determine availability, health care priorities and other factors relevant to your personal situation.

Click here for a complete list of which States still have J-1 waiver slots.

Top Five Things To Consider When Applying for a Conrad State 30 Waiver.

We have observed that a number of Conrad State 30 programs are increasingly becoming more competitive in recent years. We are providing these general tips and tactics as a head start for those who prefer commencing preparation early. Employer's and physicians may consider the following when applying for a J-1 waiver:

1) Practice Location : Employers and physicians may want to consider whether the practice worksite is in a federally designated health professional shortage area or medically underserved area. Depending on the rules that a particular state has established, an employer who is not located in an underserved area may still be able to apply for J-1 waiver slots if the patient population being served at the practice location primarily resides in a federally designated health professional shortage area or medically underserved area. For example, the rules of each state differ with respect to limitations to certain specialties and what kind of geographical area they can practice in. It is important to examine these limitations to determine what impact they have on the offered waiver job.

2) Employment Contract : At minimum, an employment contract supporting a J-1 waiver sponsorship must: a) Be valid for three years; b) be for full time employment 40 hours a week; c) list the name and address of the employing facility and the practice location; d) list the specific geographical area to be served and e) contain language as specified in INA 214(l) acknowledging that the physician agrees to start working within 90 days of the approval of the waiver full time for a period of three years to serve the federally designated underserved area or residents of the same.

Besides these minimal legal and regulatory requirements, states are permitted to impose additional requirements, such as liquidated damages clauses, and/or prohibiting restrictive covenants such as non-compete or non-solicitation clauses. It is important, in order to avoid delay, to craft the contract language to comply with the requirements from the start of the process and consequently minimize contract amendments or revisions when the process is underway.

3) Recruitment : Virtually every state participating in the Conrad State 30 program requires sponsoring employers to undertake adequate recruitment targeting U.S. physicians prior to making an application for a J-1 waiver. Different state programs have various rules regarding length, specific steps, recruitment timing and documentation requirements. Recruitment, which is within the last six months and contains a mixture of print, internet, recruitment agency, or other formal and informal recruitment steps, stands the best chance of being accepted by the grandest majority of state programs.

4) Sub Specialist Policy and Enhanced Documentary Requirements to Justify Need : Historically, the Conrad State 30 program was proposed and passed by Congress to address a significant shortage in primary care services to rural communities across the United States. The generally accepted definition of "primary care" covers internal medicine, family medicine, pediatrics, obstetrics/gynecology and psychiatry. The program has evolved subsequently to permit sponsorship of sub specialist physicians. Many states place additional documentary requirements to consider sponsoring a sub specialist for a waiver position. This can include requiring that a needs assessment be conducted by the practice, a payor mix be submitted to show the percentage of Medicaid/Medicare/Charity Care dependent patients seen by the practice, as well as providing additional justification based on community needs.

5) Timing : Although most states accept J-1 waiver applications on a rolling basis throughout the federal fiscal year (Oct. 1 to Sept. 30) on a first come first served basis, many states impose deadlines for applications, or accept certain applications (such as Flex 10 or sub-specialist applications) later in the federal fiscal year. Texas opens its application period one month prior to the start of the federal fiscal year and typically utilizes all 30 of its applications within the first few days applications are accepted. Planning is therefore crucial for not only Texas, but all states that impose timeframes and deadlines. It is important to pay attention to these deadlines and filing periods to prepare and submit the application timely and appropriately.

Change of Employer During The Waiver Obligation Period – Extenuating Circumstances.

A waiver of a physician's two year home residency requirement, based on a Conrad State 30 or other similar interested government agency initiated waiver process to provide clinical care, imposes limitations on a sponsored physician's ability to change employer while completing the waiver obligation period.

Generally, failing to work full time for three years for the employer with whom the physician signed an employment contract to work in the federally designated health professional shortage or underserved area will re-subject the physician to the two year home residency requirement. This would prohibit the physician from remaining in the United States, seeking a green card or being issued a new H-1B visa until the physician could document his or her residence and physical presence in their home country or country of last permanent residence for two years. An exception to this is available when the period of employment with the health care facility named in the waiver application ceases due to extenuating circumstances. Extenuating circumstances may include, but are not limited to, closure of the health care facility or hardship to the alien. This broad definition permits the USCIS to consider many different types of situations, on a case by case basis, to assess severity and hardship justifying the request for change of employer and transfer of the rest of the time of the 3 year commitment to another qualifying employer.

The law requires that a new H-1B petition filed by a new employer for a physician completing his or her waiver obligation in a federally designated health professional shortage or underserved area pursuant to a Conrad State 30 or similar interested government agency waiver contain:

• an employment contract with another health care facility located in a federally designated shortage area for the balance of the required 3 year period;
• evidence of the extenuating circumstance necessitating the request for change of employer;
• evidence of the approval of the H status with the previous employer; and
• evidence that the geographic area or areas of intended employment indicated in the new H-1B petition are in a HHS-designated shortage area.

Despite not being mandatorily required by the law, evidence of the approval/concurrence of the J-1 waiver sponsoring entity for the change of employer request is valuable and helpful.

As stated above, USCIS analyzes each case on its own merits on a case by case basis. As such, filing a petition requesting a change of employer based on extenuating circumstances can many times require an enhanced legal strategy which requires coordination between the physician, new employer, previous employer and oftentimes the original state or interested government agency that sponsored the waiver of the physicians home residency requirement.

Upcoming Events

We will be coming to Chicago and New York in July and August respectively to present our annual J-1/H-1B Physician Conference. Stay tuned!

Contact Us

We endeavor to continue to provide all of the subscribers to this newsletter with valuable information. Please email us at RFreedman@ClarkHill.com or KMehta@ClarkHill.com if there is a topic you would like us to discuss.