Overview : J-1 Visa, IGAs for Physicians (Part 4)
Posted Jun 15, 2003
This article builds on our June 6, 2003 Overview : J-1 Visa Waivers, Part 3, explaining waivers of the two-year home return requirement (HRR) imposed upon some persons in J-1 status, and rounds out our series on the J-1 Visa.
The waiver known as an "interested government agency" (IGA), is based upon the request of a government office. The IGA waiver is not limited to use by physicians, however, since all physicians who come to the U.S. for medical training, sponsored by the ECFMG (Educational Commission for Foreign Medical Graduates), are subject to the two-year return requirement, this type of waiver is potentially more important for medical doctors. The following agencies are generally involved with IGAs for physicians. Any federal agency that has authority or jurisdiction may recommend the waiver on behalf of a physician, however.
DHHS Waivers for Primary Care Physicians
The U.S. Department of Agriculture (USDA) previously sponsored waivers for physicians working in areas of the country without adequate medical services. As reported in our March 15, 2002 MurthyBulletin article, USDA Ends Its J-1 Waiver Program, available on MurthyDotCom, the USDA discontinued sponsorship of IGA waivers for physicians due to an inability to perform proper background security checks. To fill the need created, an interim final rule was issued in December 2002 allowing the U.S. Department of Health and Human Services (DHHS or HHS) to act as an interested government agency for physicians working in medically underserved communities. However, the program was not available until June 12, 2003. The application must be submitted by an appropriate institution, organization or agency. The physician cannot apply directly. For initial applications, the time restrictions have been relaxed. The regulations limit eligibility to qualified physicians whose training programs were completed no more than 12 months prior to the proposed dates of their employment. The requirement for applications submitted prior to October 1, 2003 is altered to allow eligibility for physicians who completed training in June 2002. Therefore, physicians applying prior to October 1, 2003 are eligible as long as they completed their training on or after June 1, 2002.
The DHHS program is similar to the state Conrad 30 program, discussed herein. The interim final regulation states that DHHS will request waivers for primary care physicians who intend to practice in Health Professional Shortage Areas (HPSAs) or Medically Underserved Areas (MUAs). HPSAs are designated by DHHS and must be areas in which the doctor to patient ratio exceeds 1:3,500. The MUA designation may be available to areas that do not qualify as HPSAs, based on additional factors, such as infant mortality rates and percentage of elderly and indigent populations. The DHHS will collaborate with state departments of public health, other IGAs, the National Health Services Corps, and other government agencies to determine whether a waiver request for a particular physician is appropriate.
In order to be eligible for a DHHS waiver request, a physician must be either a primary care physician or a general psychiatrist who has completed a primary care or psychiatric residency-training program within the 12 months prior to employment. Primary care is defined as: general internal medicine, pediatrics, family practice, or obstetrics / gynecology. The waivers are limited to employment in a primary care HPSA or MUA and general psychiatrists willing to work in a Mental Health HPSA.
The physician must have a contract for qualifying employment reflecting a term of no less than three years and 40 hours per week. The physician is also expected to provide evidence that the facility where s/he will work is located in a DHHS designated HPSA or MUA. The contract may not contain a non-compete clause that limits the physician’s ability to practice later in an alternative HPSA or MUA. The contract can only be terminable for cause. The contract may be assigned to another employer who meets the DHHS eligibility criteria. The employer and foreign national physician must comply with all applicable Department of State, Department of Labor, BCIS, and DHHS statutes, regulations, and policies.
In addition, the physician must provide a signed, dated personal attestation that s/he has only one IGA waiver request while the DHHS processes the request; also that s/he does not have pending and will not submit any additional waiver requests. Finally, individual physicians who will work in underserved areas will be expected to provide documentation from the facility, confirming that the facility provides medical care to Medicaid- or Medicare-eligible patients and uninsured indigents.
DHHS Waivers for Research
Another possible, long-standing avenue for physicians to obtain a waiver of the two-year HRR is the DHHS waiver for research. However, this is limited to physicians engaged in research and the criteria for these waivers are quite stringent and restrictive, as well as being difficult to obtain.
The research program in which the individual is employed must be of high priority and of national or international significance in an area of interest to the DHHS. The researcher must be such an integral part of the program that loss of her/his services would result in discontinuance of the program or a major phase of it. Specific evidence must be provided demonstrating how loss of the researcher’s services would adversely affect the initiation, continuance, completion, or success of the program. The institution must also demonstrate that a suitable replacement cannot be found. At present, these waivers are processed through the National Institutes of Health (NIH).
Furthermore, the researcher must possess outstanding qualifications, training, and experience well beyond the accomplishments usually expected at the graduate, postgraduate, and residency levels, and must clearly demonstrate the capability to make original and significant contributions to the program. The Exchange Visitor Waiver Review Board will not request a waiver simply because an individual has specialized training or experience or is occupying a senior staff position in a university, hospital, or other institution.
The applicant for a DHHS waiver for research is not the researcher but the institution, e.g. university, hospital, laboratory, or corporation. The organization must send a completed application consisting of HHS Form 426 and supporting documentation to the Exchange Visitor Review Board. The submission must include an in-depth and scientifically-detailed description of the work conducted at the program. Reference letters from leading experts in the field, describing the research in scientific terms, must also be included. These letters and documents are reviewed by scientists and experts with specialized skills and knowledge of the particular field.
Appalachian Regional Commission *
The Appalachian Regional Commission (ARC) will recommend a waiver of the home residency requirement for physicians who are sponsored by a state within the ARC’s jurisdiction. The Appalachian Region includes the entire state of West Virginia as well as parts of Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia.
To qualify for an ARC waiver, a physician must not only intend to work within an ARC county of one of the above-mentioned states, but must also work in an HPSA of that county. Additionally, s/he must agree to work, at minimum, 40 hours per week for three years for a Medicare and Medicaid certified hospital or primary health care clinic. A physician who fails to fulfill the three-year commitment will be required to pay the employer $250,000. S/He must also be licensed to practice medicine in the sponsoring state and must have completed his/her residency in psychiatry, obstetrics, family practice, general surgery, general internal medicine, or general pediatrics.
The exchange visitor's employer must also make a good-faith effort to recruit a U.S. worker for the physician position in the six months preceding the waiver request. The facility and the physician must also comply with all DOS, DOL, BCIS statutes, regulations, and policies.
Department of Veterans' Affairs
Physicians working in Veterans' Affairs hospitals do not have to be in an underserved area to pursue an IGA waiver. Such physicians are merely required to provide a contract between the physician and the hospital, which need not be a three-year term as required for the HPSA physicians.
Conrad State 30 Program
The Conrad State 30 program permits states to act as IGAs in connection with waiver requests by physicians. States may recommend up to 30 waivers a year to the Department of State. Until recently, this program was known as the Conrad State 20 program. As reported in our December 13, 2002 article, More J-1 Conrad Waiver Numbers Available, which can be found on MurthyDotCom, the program was extended and increased by 10 additional numbers per state in November 2002. The director of a designated state department of public health normally makes the waiver recommendations. If the U.S. Department of State approves the request, it is forwarded to the BCIS.
Unlike Federal IGA waivers, the Conrad State 30 waivers vary considerably between states. While some basic prerequisites apply to all Conrad State 30 programs, the states have relatively broad discretion to decide whether to impose additional requirements. The most critical of these requirements for many physicians is eligibility with specialty training. Some states exclude all physicians with specialty training, while others are less restrictive. The definition of primary care physician varies from state to state and may or may not include general internal medicine, pediatrics, obstetrics, general psychiatry, or other practice areas. More information about the individual state programs is available on 3RNet.org.
All Conrad State 30 programs must provide community-based medical service in an HPSA or MUA. Some state programs are limited solely to HPSAs. The physician must agree to work in an HPSA or MUA for three years in H1B status and must agree to begin work within 90 days of receiving BCIS approval. Furthermore, if the individual is contractually obligated to her/his home country, s/he must obtain a “no objection” statement from the home country. This is to be distinguished from the “No Objection Waiver,” which is not available to physicians.
Each state may stipulate certain contractual requirements of Conrad State 30 physicians. For example, some states include non-compete clauses, liquidated damages clauses, or clauses requiring four-year commitments instead of the standard three years. States may also choose to require statements from the medical facilities confirming acceptance of Medicaid- or Medicare-eligible patients and indigent, uninsured patients. Furthermore, evidence of unsuccessful recruitment is required by some states, but not others, as is proof of English language ability in the form of TOEFL/TSE test scores.
The states are clearly given great freedom to tailor the requirements of the Conrad State 30 programs according to their individual needs and policies. This results in a wide variety of programs, all with different requirements, which can be confusing for the potential applicant. However, it may provide an array of choices to a foreign medical graduate who is willing to practice in an HPSA or MUA.
[See our July 25, 2003 article entitled, ARC on Waiver of J-1 Physicians HRR.]© The Law Office of Sheela Murthy, P.C.
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