1. TACHC ANNUAL CONFERENCE
Immigration Concepts for
Community Health Centers:
The Flip Side:
Make the Cost Benefit Work for You
Robert D. Aronson
Minneapolis MN

2. LEARNING OBJECTIVES Learn the fundamentals of
immigration law as it pertains to
International Medical Graduates (IMGs)
Discuss how to make immigration a positive recruitment advantage
Provide practice pointers on getting a J-1 waiver (particularly through the Texas Dept. of State Health Services or the Dept. of Health and Human Services
© 2016 Fredrikson & Byron, P.A.

3. STRUCTURE OF THIS PROGRAM
Fundamentals of U.S. Immigration law
J-1 Waiver Process for IMGs
H-1B Sponsorship
The Permanent Resident Process

4. METHOD OF INSTRUCTION 1. Keys to Daniel Diaz’s Jaguar
2. All-Expense Paid Vacation
to Minnesota in January

5. IN OTHER WORDS MAKE YOUR CHC INTO A J-1 WAIVER SUPERHERO
© 2016 Fredrikson & Byron, P.A.

6. FUNDAMENTALS of U.S. IMMIGRATION LAW for the PHYSICIAN RECRUITER
© 2016 Fredrikson & Byron, P.A.

7. IF LEGAL IN U.S., FOREIGN NATIONAL WILL BE EITHER
Temporary Nonimmigrant
U.S. Permanent Resident
U.S. Citizen
© 2016 Fredrikson & Byron, P.A.

8. DEFINITION OF TERMS: TEMPORARY, NONIMMIGRANT VISA STATUS Limited Time
Limited Scope of Activity
Employer Specific
Letter-Number Combination
© 2016 Fredrikson & Byron, P.A.

9. PERMANENT RESIDENCE (GREEN CARD)
DEFINITION OF TERMS:
PERMANENT RESIDENCE (GREEN CARD)
Visa status that provides full, open-ended authorization for a foreign national to live and work in the United States, but which can be lost in certain circumstances.
© 2016 Fredrikson & Byron, P.A.

10. DEFINITION OF TERMS: U.S. CITIZENSHIP
Status carrying Constitutionally-guaranteed rights including the open-ended right to live and work in the United States and which cannot be lost or removed except in highly unusual and extreme circumstances.
© 2016 Fredrikson & Byron, P.A.

11. J-1 RECRUITMENT
© 2016 Fredrikson & Byron, P.A.

12. BRIEF PRIMER ON J-1 VISA / TWO-YEAR HOME RESIDENCE OBLIGATION
J-1 Visa: Coverage Solely for Graduate Medical Education (Residency & Clinical Fellowship)
Every J-1 Physician Has Two-Year Home Residence Obligation
Implications of Two-Year Home Residence Obligation:
Disqualification from H-1B Visa
Disqualification from Permanent Residence
© 2016 Fredrikson & Byron, P.A.

13. J-1 PHYSICIAN’S OPTIONS ON COMPLETING GME
Go Home for Two Years
Get a Waiver of Two-Year Home Residence Obligation
Select Few: Get O-1 Visa as “Alien of Extraordinary Ability”
© 2016 Fredrikson & Byron, P.A.

14. WHY BOTHER WITH J-1 PHYSICIANS:
THE PRO’S
State Interests:
Channeling Physicians into Communities/Positions of Greatest Need
Working with Communities on Physician Coverage
Meeting a Basic State Objective of Addressing Disparities in Healthcare Coverage
© 2016 Fredrikson & Byron, P.A.

15. WHY BOTHER WITH J-1 PHYSICIANS:
THE PRO’S (con’t)
Community/Private Sector Interests
Access to Qualified Physicians for Hard-To-Fill Placements
Too Many IMGs to Ignore
Opportunity to Increase Skill Level in
Candidates (Waiver as Carrot)
© 2016 Fredrikson & Byron, P.A.

16. WHY BOTHER WITH J-1 PHYSICIANS:
THE PRO’S (con’t)
J-1 Physician’s Interests
Waiver of Obligation to Return Home
Getting a Good Job
© 2016 Fredrikson & Byron, P.A.

17. WHY BOTHER WITH J-1 PHYSICIANS:
THE CON’S
State Perspective:
Retention Concerns
Developing Internal Resources/Expertise
Funding
© 2016 Fredrikson & Byron, P.A.

18. WHY BOTHER WITH J-1 PHYSICIANS:
THE CON’S (con’t)
Community/Private Sector Perspective:
Retention
Unfamiliarity with Process
Expense
Community Push-Back
Cultural/Linguistic Barriers: The “Fit” Issue
© 2016 Fredrikson & Byron, P.A.

19. WHY BOTHER WITH J-1 PHYSICIANS:
THE CON’S (con’t)
J-1 Physician Perspective
Forced into Undesirable Placement
Isolation – Professional & Otherwise
Family Tension Issues
© 2016 Fredrikson & Byron, P.A.

20. SO, WHERE DOES REALITY LIE?
SEE: PLATO AND THE ALLEGORY OF THE CAVE
© 2016 Fredrikson & Byron, P.A.

21. BASIC CHALLENGE
All J-1 physicians have a two year home residence obligation
The initial objective needs to be to qualify the IMG for a waiver
As long as an IMG remains subject to the two-year home residence obligation, IMG is generally ineligible for long-term residence/ employment
© 2016 Fredrikson & Byron, P.A.

22. BASES FOR J-1 WAIVERS Exceptional Hardship to Anchor Relative
Persecution
Government Agency Sponsorship
Federal Employer (VA; US Army)
Interested Federal Agency (DRA, ARC, HHS)
State Department of Health (Conrad State 30 Waiver Program)
© 2016 Fredrikson & Byron, P.A.

23. CONRAD STATE 30 WAIVER PROGRAM: WHAT IS IT?
Allows State DOH to Recommend up to 30 Physicians/Year Who will Serve the Public Interest
Public Policy Focus: Expanding the Safety Net
Federal-State Partnership
Federal: Create Basic Structure
State:
Fill in the Blanks
Administer the Program to Meet Needs of the State
© 2016 Fredrikson & Byron, P.A.

24. WAIVERS THROUGH THE DEPT. of HEALTH AND HUMAN SERVICES
Federal waiver sponsor
Same policy interest: to override two-year home residence obligation for IMG placements that will serve the public interest (i.e., expand safety-net)
No quota limit
But highly restrictive (type of employer; area of practice; underservice designation)
© 2016 Fredrikson & Byron, P.A.

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

26. 4 Steps to J-1 Waiver: Registering for J-1 Waiver Number
Filing and processing waiver by State Department of Health or HHS
Review and approval by U.S. Department of State
Review and approval by U.S. Citizenship and Immigration Services (UCSIC)

27. 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
© 2016 Fredrikson & Byron, P.A.

28. THE PEGGY LEE SYNDROME IS THAT ALL THERE IS?
© 2016 Fredrikson & Byron, P.A.

29. STATE OPPORTUNITIES TO MOLD ITS OWN SYSTEM
© 2016 Fredrikson & Byron, P.A.

30. J-1 WAIVER PROGRAM of TEXAS DEPT. of STATE HEALTH SERVICES
Available to both primary care & specialty care physicians
Shortage designation requirements
Primary care: geographic HPSA; FQHCs; RHCs
Specialty care: HPSA; FQHC; RHC; geographic MUA
Psychiatry: geographic Mental HPSA; FQHC; RHC
Not Eligible: population-based HPSA, MUP, facility HPSAs
Certain mandatory contractual provisions,
$3000 application fee
© 2016 Fredrikson & Byron, P.A.

31. ADMINISTRATION OF THE PROGRAM
Opens on September 1
Processed in order received
Minimal discretion to state J-1 waiver officer
35 waivers received this year
© 2016 Fredrikson & Byron, P.A.

32. J-1 WAIVER PROGRAM of DEPT. of HEALTH AND HUMAN SERVICES
© 2016 Fredrikson & Byron, P.A.

33. COMPARATIVE ADVANTAGES:
No quota limitation
No application fee
Somewhat underutilized: 73 issued in FY2016
© 2016 Fredrikson & Byron, P.A.

34. 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.

35. PUTTING THE WAIVER IN PERSPECTIVE
Indispensable prerequisite to J-1 recruitment
But it simply removes a barrier of having to depart the United States
Remaining need is to change IMG from J-1 to H-1B status
Under law, J-1 physician needs to work for waiver sponsor for 3 years
© 2016 Fredrikson & Byron, P.A.

36. H-1B TEMPORARY WORKER STATUS

37. H-1B WHAT IS IT? Temporary, nonimmigrant classification
3 years initially, plus 3-year extension
Employer specific
If J-1 waiver, must fulfill 3-year employment in H-1B status to gain eligibility for permanent residence
J-1 Physicians are exempt from H-1B cap

38. H-1B HOW DO YOU GET IT? Labor Condition Application
H-1B Petition to USCIS
Application for status

39. WHAT IS THE H-1B CAP?
65,000 H-1B numbers (+20,000 for Master’s Degree from U.S. universities)
Numbers become available October 1 each year
Application period opens on April 1
Numbers generally insufficient to satisfy demand

40. H-1B FILINGS FOR PHYSICIANS: CAP-SUBJECT VS CAP-EXEMPT
H-1B cap-exempt:
J-1 Physicians
Universities
Non-profit, university-affiliated employers (ex: teaching hospitals)
Employed “AT”
Others: H-1B cap-subject

41. GOOD NEWS!!
All J-1 Physicians with waivers are exempt from the H1-B quota… Now and forevermore!

42. SPECIAL PHYSICIAN DOCUMENTATION
MD or foreign medical license
ECFMG Certificate for English language fluency (not required for Canadian physicians)
FLEX-Steps 1 and 2, or USMLE-Steps 1, 2, and 3 (cannot be combined)
State medical license

43. HOW TO RETAIN YOUR PHYSICIAN:
THE PERMANENT RESIDENT PROCESS

44. TIME REQUIRED FOR WHOLE PROCESS (ROUGH ESTIMATE)
Worldwide Quota: 2 Years
India: 7 Years (readjusted monthly)

45. LABOR CERTIFICATION UNDER PERM
OPTION ONE:
The standard route to permanent residence involves a three-step process
Most complex stage is the Labor Certification Application process
LABOR CERTIFICATION UNDER PERM

46. OPTION TWO:
A second pathway to employment-based permanent residence is based upon National Interest Wavier (NIW) criteria
Physician has an obligation to work in a medically underserved area for an aggregate period of five years
NATIONAL
INTEREST
WAIVER

47. HOW IMMIGRATION CAN GIVE YOU A COMPETITIVE RECRUITMENT EDGE
Assess your System’s Needs
Dialogue with Texas waiver officer and/or HHS option
Timing the decision to hire
Determining alternative waiver sources
Role of immigration attorney
Dealing with quotas
IMGs from India
Spousal needs
Creating long-term immigration/professional development plan
Establishing transparent immigration policies
© 2016 Fredrikson & Byron, P.A.

48. ISSUES IN DEVELOPING AN IMMIGRATION POLICY
When to start the permanent resident process
Criteria on sponsoring IMG for permanent residence
Who pays for the process
Who pays for dependent family members
Who selects the immigration strategy
Who selects the attorney
Payback provisions for early departure
© 2016 Fredrikson & Byron, P.A.

49. WHAT DO YOU WANT TO COMMUNICATE TO IMG CANDIDATE?
BASIC ISSUE:
WHAT DO YOU WANT TO COMMUNICATE TO IMG CANDIDATE?
© 2016 Fredrikson & Byron, P.A.

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

51. CONTACT INFORMATION
Robert D. Aronson
Fredrikson & Byron, P.A.
200 South Sixth Street
Suite 4000
Minneapolis, MN
Phone:
Website:
© 2016 Fredrikson & Byron, P.A.