1. OHIO FALL CLE CONFERENCE
J-1 WAIVERS: A NEEDED CURE TO PHYSICIAN RECRUITMENT
Robert D. Aronson
Fredrikson & Byron, P.A.
Minneapolis, MN
Michael M. Jolic
Sharon & Kalnoki LLC
Independence, OH

2. Focus of Program CONVERSELY: J-1 WAIVERS:
Program will only tangentially touch on other aspects of IMG immigration challenges
J-1 WAIVERS:
Particularly based on Interested Government Agency (IGA) recommendations

3. Structure of Program
-A Few Words About IMG Immigration Fundamental Concepts
History and Evolution of J-1 Waivers - in Particular, the Conrad State 30 Waiver Program
IMG Waiver Theories
Basic Construct of the Conrad Waiver Program
Ohio Waiver Program
Searching for Alternatives: HHS & ARC Clinical Waivers
Future of Conrad Waiver Program

4. Basic Building Blocks of IMG Waivers: Definition of Terms
International Medical Graduate (IMG)
Graduate Medical Education (GME)
Educational Commission of Foreign Medical Graduates (ECFMG)
Primary Care vs. Specialty Care
Accreditation Council of Graduate Medical Education (ACGME)
© 2016 Fredrikson & Byron, P.A.

5. Basic Building Blocks of IMG Waivers: Definition of Terms
Medically Underserved Designations
Health Professional Shortage Area (HPSA)
Medically Underserved Areas (MUA)
Medically Underserved Populations (MUP)
Miscellaneous designations
© 2016 Fredrikson & Byron, P.A.

6. A Word About the Purpose of Medically Underserved Designation Schemas

7. Focus on Medically Underserved Designations
HPSA
Primary Care Physician: Population Ratios
Geographic Area vs. Population Group vs. Facility designation
MUA
4 values: 1)physician ratios; 2)infant mortality; 3) poverty levels; 4) geriatric population
MUP
Identifying population groups facing barriers to physician access (ex: economic barriers ; cultural and/or linguistic barriers)
© 2016 Fredrikson & Byron, P.A.

8. IMG Pathway to Medical Practice: Indispensable Role of GME
Need for GME as a prerequisite to state medical licensure
Medical examination process
Role of ECFMG:
Ascertaining medical competence
Administering IMG match program to GME
J-1 visa eligibility (per delegation from DOS)
© 2016 Fredrikson & Byron, P.A.

9. VISA Options for GME J-1 Exchange Visitor (predominating) H-1B O-1
EAD (J-2 EAD)
© 2016 Fredrikson & Byron, P.A.

10. Health Professions Educational Assistance Act (P. L
Health Professions Educational Assistance Act (P.L ): Emergence of Blanket Two Year Home Residence Obligation

11. J-1 Physician Options Upon Completing GME
© 2016 Fredrikson & Byron, P.A.

12. 3 IMG Waiver Theories(INA 212(e))
Exceptional hardship to anchor relative
Persecution
Interested Government Agency (IGA)
(Missing: No Objection)
© 2016 Fredrikson & Byron, P.A.

13. 4 Employment Paradigms for IGA Waiver Recommendations
Direct employment relationship with federal agency (VA; DOD)
Outstanding research in the public interest (hybrid IMG activity)
Clinical work of relevance to federal agency (ARC; DRA; HHS; potentially others)
State Dept. of Health (Conrad State 30 Waiver Program)
© 2016 Fredrikson & Byron, P.A.

14. COMMON FEATURES OF FEDERAL IGA WAIVER & CONRAD WAIVER:
EXPAND THE SAFETY-NET IN A MANNER SERVING THE PUBLIC INTEREST
© 2016 Fredrikson & Byron, P.A.

15. Evolution of Conrad Waiver Program
Initial Program:
Creating Greater Balance between Federal and State Waiver Programs:
Expansion of Waiver Numbers:
Further Leveling Out the Playing Field: 2004 – 2008
Maintaining the Status Quo:
© 2016 Fredrikson & Byron, P.A.

16. Conrad Waiver Program Sunsets: September 30, 2016:
THEN WHAT?
Termination of program?
Simple Extension?
Revisions to Program?
Reengineering IMG Immigration?
© 2016 Fredrikson & Byron, P.A.

17. Federal Requirements for a Conrad Waiver
Limit of 30 Waivers/Fiscal Year
Medically Underserved Placements: Up to 30
FLEX Waivers: 10
3-Year H-1B Employment Obligation
Need to Agree to Work in Position within 90 days of Waiver Issuance
Exemption from H-1B cap
© 2016 Fredrikson & Byron, P.A.

18. Issue Areas for State Action
Primary Care vs. Specialty Care
Limitations on Underserved Designation
Limitations to Employers
FLEX Policy
Non-Compete
© 2016 Fredrikson & Byron, P.A.

19. Issue Areas for State Action
Departure Policies
Reporting Requirements
Application Fees
Merit-Based or FIFO Processing Policies
© 2016 Fredrikson & Byron, P.A.

20. Issue Areas for State Action
Departure Policies & Reporting Requirements:
Are They Necessary?
Are They Enforceable?
Liquidated Damages
Non-Competes
© 2016 Fredrikson & Byron, P.A.

21. Issue Areas for State Action
Characteristics of Employer:
Public Assistance Provider
Charity Care Policy
Public Outreach/Statewide Resource
Academic Medical Centers
Primary Care:
Definition
Who Provides Primary Care Services?
© 2016 Fredrikson & Byron, P.A.

22. OHIO Waiver Program
Preference for primary care, but specialty care physicians eligible
FLEX possible
40 hours/week of direct patient care
Nature of healthcare facility: Medicare/Medicaid; charity care; sliding fee schedule
Application filed for Ohio state medical license
$3,571 filing fee
© 2016 Fredrikson & Byron, P.A.

23. Identification of OHIO Program Priorities
Primary care defined
Mental health physicians working in mental health HPSAs
Hierarchy of facility placements
Primary care in HPSA & psychiatry specialties in mental health HPSAs
Primary care in MUA/Ps on list of Eligible Public & Children's Hospitals in MUAs and Eligibility MUA/Ps
All other primary care placements
© 2016 Fredrikson & Byron, P.A.

24. Identification of OHIO Program Priorities
Non-Primary Care
Placements in HPSA and mental health HPSA
Eligible public and children’s hospitals in MUAs
Other MUA/Ps
All other
© 2016 Fredrikson & Byron, P.A.

25. Mandatory Contractual Terms for OHIO Waivers
The complete address(es) of the practice location(s).
A full-time, 40-hour work week in direct clinical care for three years (On-call and travel time is not counted in the required 40-hour work week).
© 2016 Fredrikson & Byron, P.A.

26. Mandatory Contractual Terms for OHIO Waivers
A statement documenting that the J-1 physician candidate agrees to begin work within 90 days of receipt of the J-1 waiver and the H-1B visa
A competitive salary for the area
The statement: “Any change or amendment to the employment contract must adhere to Ohio Dept. of Health (ODH) J-1 Visa Waiver requirements.”
Signature and date by both employer and physician
© 2016 Fredrikson & Byron, P.A.

27. Prohibited Provisions in OHIO Waiver Contracts
A non-compete clause
Termination without cause or by mutual agreement until the statutorily required three (3) years have expired.
Allowance for changing or adding practice site without prior approval from ODH and USCIS
© 2016 Fredrikson & Byron, P.A.

28. Prohibited Provisions in OHIO Waiver Contracts
Only one employment agreement is permitted between the sponsor and the J-1 physician during the physician’s 3-year obligation
Contracts that may be in place for physicians on O-1 visas prior to receipt of J-1 visa waiver approval must be terminated before the physician’s J-1 visa waiver obligation start date
© 2016 Fredrikson & Byron, P.A.

29. Mandatory Components of J-1 Waiver Support Letter: Central Advocacy Piece
List the sponsoring organization
Identification of practice site (if different) and name and specialty of J-1 physician applicant
Define the service area for the sponsoring organization and practice site, if different.
© 2016 Fredrikson & Byron, P.A.

30. Mandatory Components of J-1 Waiver Support Letter: Central Advocacy Piece
Provide site-specific staffing information, including total number of positions by specialty and number of vacancies
Describe how this request will address unmet need in the service area for the medical specialty of the J-1 physician applicant
© 2016 Fredrikson & Byron, P.A.

31. Mandatory Components of J-1 Waiver Support Letter: Central Advocacy Piece
Document that efforts to recruit a U.S. citizen physician for the same specialty and site have been conducted over the past twelve months and have been unsuccessful. A summary description is requested. Do not submit copies of ads, s, recruitment frim contracts, etc.
© 2016 Fredrikson & Byron, P.A.

32. Adjudication Process Within the Ohio Department of Health: Comments of Colleen Schwartz
© 2016 Fredrikson & Byron, P.A.

33. Respective Perceptions of OHIO Waiver Program: Discussion
© 2016 Fredrikson & Byron, P.A.

34. J-1 Waiver Program of Department of Health and Human Services
© 2016 Fredrikson & Byron, P.A.

35. Restrictive Features
Facility designation: Section 330 funded CHC; Rural Health Clinic; Native American/Alaskan Native tribal facility
Practice eligibility: limited to primary care
Commencement date of practice: within 1 year of completing primary care residency
Geographic designation: HPSA score of 07 or higher
© 2016 Fredrikson & Byron, P.A.

36. Comparative Advantages:
No quota limitation
No application fee
Somewhat underutilized: 73 issued in FY2016
© 2016 Fredrikson & Byron, P.A.

37. A Few Words on Appalachian Regional Commission (ARC) J-1 Waiver Program
HPSA site
Within ARC defined area
Restrictive definition of primary care
Liquidated damages ($250,000)
Requires “official” state endorsement
© 2016 Fredrikson & Byron, P.A.

38. Open and Unresolved Issues in Conrad/J-1 Waiver Program
Identifying country of fulfillment (and relationship to Statement of Need)
Qualitative nature of home residence: Physical presence/ Residence
J-2 country of fulfillment
J-2 immigration options
Standards of full-time employment/What is regarded as clinical activity
© 2016 Fredrikson & Byron, P.A.

39. Open and Unresolved Issues in Conrad/J-1 Waiver Program
Organic needs of physicians: Clinical practice/hospital coverage
Service in H-1B status: What is basis?
Breaks in H-1B employment
Split appointments (generally for academic physicians)
Ongoing exemption from H-1B cap
© 2016 Fredrikson & Byron, P.A.

40. Open and Unresolved Issues in Conrad/J-1 Waiver Program
90-day commencement period
Loss of shortage designation
Extenuating circumstance issue
Transfer into FLEX employment position
© 2016 Fredrikson & Byron, P.A.

41. Putting the Pieces Together
Waivers/immigration as IMG recruitment tool
Working with healthcare employers
Working with the state
Role of the attorney
© 2016 Fredrikson & Byron, P.A.

42. Questions?
© 2016 Fredrikson & Byron, P.A.