At DaVita SOURCE we’re really good at matching the right candidate to the right practice and providing career guidance to physicians in training. We have a high level understanding of the additional steps required by a practice when hiring a visa candidate but we’re not lawyers and we don’t know ALL of the details. This information is still extremely important so we asked a lawyer who is an expert on the subject to write something for all of you.
Steven Williams is an Associate at Ogletree Deakins in Denver, CO. His practice focuses on business immigration matters, representing companies and individuals in the academic, medical and high-tech fields. For more information on Ogletree Deakin’s Immigration practice, please go to www.ogletree.com/practices/immigration.
Healthcare employers seek to attract and hire talented foreign national physicians. This blog post summarizes the physician sponsorship process from the employer’s perspective, noting considerations, steps, and risks involved. We focus on two common situations: (1) physicians who train in the U.S. in J-1 status and (2) physicians who complete training in H-1B status, which will be covered in our next post. Additionally, if you’d like a very high level view of the requirements for hiring a J-1 candidate, check out the blog we recently posted.
A J-1 Waiver Case Study
Let’s say a practice is seeking to fill a nephrologist vacancy at a clinic in rural Louisiana. Because the position is in a small town, it has proven to be difficult to fill. The employer’s recruiters are attending various physician job fairs and sending hundreds of emails to medical schools in search of the right candidate. The best applicant to emerge from the search process is a physician from Ghana in her penultimate year of a fellowship who tells the recruiter that she is in J-1 status and needs a “waiver.” This could be a good match, but there are several key steps to take to onboard this physician.
As background, many international medical graduates come to the United States to train in residency programs and complete fellowships in J-1 “exchange visitor” status. At the end of their training, J-1 physicians must return to their home countries for two years before they can work in the United States in H-1B status or apply for a green card. However, this strict “home residency” requirement can be waived if the physician agrees to provide three years of full-time medical service in a federally designated “health professional shortage area” (HPSA) or medically underserved area (MUA). This arrangement is mutually beneficial: the physician receives the requisite waiver and the employer receives at least three years of committed physician service in an underserved area.
In 1994, then senator Kent Conrad of North Dakota proposed legislation that ultimately became the Physicians for Underserved Areas Act (known unofficially as the “Conrad 30 waiver program” or “Conrad 30 program”) to address physician shortages in the United States. In its current form, the Conrad 30 program allows each state’s department of public health to sponsor up to 30 J-1 physicians per year for foreign residency waivers. The majority of states’ waiver slots are reserved for physicians who practice “primary care” as defined by the state, which normally includes pediatrics, obstetrics and gynecology, general internal medicine, family practice medicine and psychiatry. Typically, states reserve a certain number of slots for specialists and might require additional evidence of the region’s need for a specialty physician, like a nephrologist.
Back to our Ghanaian nephrologist –the practice and the physicians must meet the following basic requirements in order to consider J-1 wavier sponsorship:
The worksite of the practice must be in a HPSA or MUA;
The parties must enter into an employment contract in which the physician agrees to serve three years, full time, in H-1B status at this location;
The physician must have medical licensure in the state of practice (or the physician must be able to demonstrate proof that state licensure is pending);
The employer must demonstrate that it has made unsuccessful recruitment attempts to fill the vacancy;
The employer must show proof that the facility provides services to patients who are unable to pay and that the facility provides services to patients who are on Medicare or Medicaid; and
The employer must provide an explanation of the need for the physician in the shortage area.
Beyond these general eligibility requirements, each state maintains its own list of specific requirements and procedures. Also, the time frame for waiver filing and processing varies greatly. For example, Louisiana Conrad State 30 (J-1 visa waiver) Program opens its waiver applications from October 1 to March 31 of each year, with 80% of the 30 slots reserved for primary care physicians, and 20% for specialists (6 slots). Timing here is essential –the practice must file the specialty waiver on or close to October 1 in order to compete for the waiver. With the limited number of slots, J-1 waivers are never a sure thing!
Also, the waiver application should be filed during our Nephrologist’s last year of the Fellowship. If the waiver is selected and approved, this allows the practice to file the physician’s H-1B by the end of the fellowship to preserve the physician’s in-country change of status from J-1 to H-1B. This complex planning requires advance preparation and intricate coordination by the employer, physician, and even across government agencies, including the state’s public health department and medical licensing entity, the U.S. Department of State, and U.S. Citizenship and Immigration Services.
Stay tuned for our next blog that discusses the considerations practices must take when hiring an H-1B physician.