December 2003 Newsletter
for Foreign Medical Graduates

By Robert D. Aronson

DEAR CLIENTS AND FRIENDS:

I am writing this Newsletter as a focused summation of a number of immigration-related developments of particular importance to the international physician community. As you know, immigration matters for International Medical Graduates (IMGs) have been the principal concern of my legal practice, and over the years I have felt immeasurably fortunate to have attained a position of national recognition for my work in this area. As a personal statement, I continue to be challenged and intrigued by this specific, focused area of immigration law, and take a great deal of satisfaction from working with a highly qualified clientele of physicians and their employers in a rapidly changing legal and professional environment which is of social relevance, public importance, and personal gratification.

So, in these waning weeks of 2003, let me share some thoughts on the current state of immigration law for physicians and issues which likely will arise in this forthcoming year, as well as bring you up-to-date on some of my own activities which might be of interest to you.

PHYSICIAN WORKFORCE STUDIES

Ironically, the first and perhaps most important issue in the physician immigration arena does not directly concern immigration law, but rather centers on emerging studies indicating a growing shortage of physicians. After all, immigration essentially provides communities and employers with access to an otherwise untapped source of physicians, so the development of appropriate physician immigration policy is and should serve U.S. national interests which, in turn, requires some understanding of physician workforce trends.

For much of the 1990s, the prevailing belief in the United States was that there was a surplus of physicians, which as a matter of public policy counseled for restrictive physician immigration policies. Essentially, the prevailing doctrine during the last decade was the following: 1) on a macro level, there were too many physicians which suggested the need for tight numerical controls on the physician workforce and, particularly, on IMGs entering clinical practice; 2) the major medical delivery system should be premised on managed care/gatekeeper concepts so as to mandate the recalibration of the physician workforce toward primary care providers and away from medical specialists; and 3) the main problem was not with the overall quantity of physicians, but rather with physician misdistribution patterns which formed the basis for relegating IMGs to serve in narrowly defined practice situations working mainly in medically underserved areas.

Perhaps this constrictive attitude toward IMGs reached its zenith with the issuance in 1998 of a set of recommendations by the Council of Graduate Medical Education (COGME), which is the congressionally created advisory board to the U.S. Secretary of Health and Human Services on emerging healthcare issues. I was appointed as the legal consultant/advisor to COGME and my counsel on the need for enhanced access to physicians constituted a distinctly minority position that was ultimately disregarded in the Council’s final report.

Today, there is a much different sense of the healthcare challenges facing the nation. Physician workforce planners are predicting an emerging shortage of physicians owing to such factors as: an aging population; the repudiation of managed care/gatekeeper models by the marketplace; revisions in employment patterns, lifestyle interests, and retirement expectations of physicians; the correlation between specialist physician encounters and medical outcomes; the growing technological capabilities to treat an ever-widening array of human maladies; and an insistence within the U.S. population for accessible resources to address human disease.

Indicative both of the substantial change in physician workforce planning doctrine and the real need to address this serious national issue is that COGME – the very same organization that five years ago advocated for a massive curtailment in IMG immigration as a means to limit the physician workforce – issued a study on November 3, 2003, which predicted a major impending physician shortage in the United States. Specifically, COGME is predicting a shortage of around 200,000 physicians – largely medical specialists – by 2020. Similarly, the AMA House of Delegates announced on December 9, 2003, a reversal of its long-standing belief in an oversupply of physicians and has now endorsed the notion that our nation faces a shortage in physician providers in certain specialty practice areas and in broad swathes of rural America.

Unquestionably, one of the means to remedy this potential disaster – if not disgrace – is to increase the physician workforce numbers through increased funding of Graduate Medical Education (GME) slots. But another readily accessible and highly economical means from a federal fiscal standpoint is to liberalize the immigration environment for IMGs. After all, this is probably the largest and most readily accessible pool of physicians in this country, and appropriate immigration policies could be utilized to encourage IMGs to take up practice opportunities of maximum national benefit. Various studies have already identified that IMGs disproportionately provide “gap-filling” services in that they tend to serve in positions that have traditionally gone unfilled by U.S. Medical Graduates (USMGs). I would submit that this practice pattern of serving the indigent, medically underserved, minorities, and ethnic communities is not the result of inherent altruism, but rather is a realistic accommodation to immigration legal requirements. Furthermore, the preparation of a qualified and licensed foreign physician requires far less federal expenditure since their basic medical education was accomplished abroad and they do not require the same economic inducements to relocate to undesirable practice locations given the role of immigration benefits in inducing socially desirable practice patterns.

Thus far, we have seen only an incremental recognition of the contributions of IMGs to the physician workforce – to wit: we are seeing an expanded number of federal agencies serving as Interested Government Agencies for J-1 waiver matters and more and more states are using their J-1 waiver programs as a proactive measure for physician recruitment and retention. But much, much more needs to be done running from expanded waiver J-1 numbers, increased receptivity to medical specialists, and broadened criteria for IMG immigration.

CONRAD 30 RENEWAL

As readers probably well know, IMGs who entered the United States under a clinical training program sponsored by the Educational Commission of Foreign Medical Graduates (ECFMG) are obligated to return to their home countries for two years. This home residence obligation needs to be either fulfilled or waived in order for a physician to enter medical practice in the United States.

At present, the states have the greatest flexibility to sponsor physicians for waivers of their home residence obligation. Pursuant to legislation initially sponsored by Sen. Kent Conrad (D-ND), each state received the right to sponsor up to 20 physicians annually for waivers; effective May 31, 2002, this annual limit was increased to 30 waivers per fiscal year. In contrast to the strictures placed on the federal waiver programs for underserved communities, the state departments of health can recommend waivers to either primary care physicians or medical specialists in order to best serve local community needs.

At present, nearly every state maintains to some degree a Conrad State 30 Waiver Program. While many states grant preference to primary care physicians, roughly two-thirds of participating states will recommend waivers to medical specialists. In total, the states recommended 344 waivers to medical specialists in the last fiscal year, which represents a five-fold increase in specialist waivers from FY 2000. Roughly 20 states used up all of their allotted waivers in this most recent fiscal year.

The Conrad legislation as it now exists sunsets (i.e., expires) on June 1, 2004. This does NOT mean that all state waiver programs will necessarily terminate on that date; it does, though, mandate that unless this legislation is renewed, IMGs not currently in training programs will no longer be eligible for J-1 waivers through the states.

The Congress is starting its consideration of legislation to reaffirm this waiver initiative, and there appears to be strong leadership in both houses of Congress to continue this program. While it is quite early in the process, we feel that there is broad congressional support as well as a pronounced national need for legislation which to varying extents should address the following issues: an increase in the number of waivers; a recognition that waiver programs should not be limited to primary care practitioners but should be equally available to medical specialists; liberalizations on the types of facilities and communities which can request waivers; and a commitment to making this a permanent program rather than a rolling, unstable program granted in finite increments of time.

To be sure, we will try to serve as an informed and forthcoming provider of information on the new contours of the state-run waiver program.

FEDERAL WAIVER PROGRAMS

While both the state and federal agency waiver programs operate under the same statutory language, the federal program by regulation is limited to primary care physicians. We feel strongly that this limitation is not compelled by the law as passed by the Congress and signed by the President, but rather represents a regrettable truncation of the ability of federal agencies to serve in full partnership with local communities seeking broadened physician coverage.

On December 19, 2002, the Department of Health and Human Services (HHS) announced its plans to expand the scope of its waiver sponsorship to include clinicians. This HHS waiver program was operationally launched on June 12, 2003.

From the start, this Program has been underutilized. The HHS waiver program is not only limited to primary care physicians, but it further disqualifies IMGs who have taken specialty care training. On the “plus” side, though, the existence of a waiver program specifically dedicated to primary care practitioners frees up the states to allocate a greater number of their 30 waiver slots to medical specialists.

For those readers interested in learning more about the HHS waiver program, I would direct you to my articles as appearing on my law firm’s website (www.ingber-aronson.com in the Physician Issues section).

At present, the HHS waiver program has been suspended. The administrator of this program has indicated that the program will be resumed, but that certain internal issues need to be resolved in order to again make the program operational. We assume that this is an accurate and honest statement, but we cannot help but be concerned that this suspension so soon after the commencement of the waiver program reflects upon either an ambivalence or perhaps an outright disinclination within HHS to serve as an active sponsor of IMGs willing to work for, at minimum, three years in designated medically underserved communities.

Parallel to the HHS waiver program, we have seen the initiation of a number of waiver programs within other federal agencies largely serving regional interests. Both the Delta Regional Commission and the U.S.-Mexico Border Commission have announced waiver programs which, while numerically unlimited, are restricted to primary care practitioners solely, and a number of other regional federal commissions with responsibilities for economically depressed areas of the country have indicated a possible intention to create their own programs.

We further have the impression that even the federal agencies have an interest in sponsoring waivers for medical specialists, given the palpable benefits to healthcare coverage and community stability from such a policy. Perhaps the forthcoming redesign of the Conrad State 30 Program, as outlined above, will clarify the sentiment of Congress that both federal and state waiver agencies should have the flexibility to facilitate the recruitment and retention of physicians to needy communities regardless of an artificial distinction between primary and specialty care medicine.

H-1B CAP ISSUES

As most readers of this newsletter know, the H-1B Temporary Worker Provisions provide both a relatively time-efficient method and liberal period of employment/residence authorization to foreign professionals – including physicians – working in the United States. This nonimmigrant visa classification has particular relevance to IMGs given the legal requirement that physicians receiving waivers based on clinical service in designated medically underserved areas or VA facilities need to fulfill a three-year period of employment specifically in H-1B status in order to attain eligibility for permanent residence.

Effective October 1, 2003, the H-1B visa cap was reduced substantially from an annual allotment of 195,000 numbers to 65,000. Even this figure does not represent the full picture of the situation since there were roughly 22,000 pending H-1B Petitions filed in Fiscal Year (FY) 2003, and an additional 6,800 H-1B visa numbers are reserved for use in the recently signed Free Trade Agreements with Chile and Singapore.

Therefore, in reality, there are only around 36,200 H-1B visa numbers available to new Petitions filed in FY 2004.

Looking forward, no one can predict the future utilization of the H-1B numbers since that will depend upon the strength of the U.S. economy and employer decisions to hire foreign professionals. To the extent there is any consensus of opinion, it is anticipated that the H-1B visa numbers could very well become exhausted by this spring without active congressional efforts to raise the H-1B quota.

Initially, there was some confusion as to whether J-1 waiver beneficiaries would be subject to the H-1B cap. If such physicians were indeed subject, they could face not only delays in relocating to their sponsoring medical facilities in the event the numbers were to be exhausted, but could also violate their requirement to obtain H-1B authorization within 90 days of final approval of the waiver.

We have done a great deal of legal research precisely focused on whether or not IMGs holding waivers based on clinical service are indeed subject to the H-1B cap. We strongly feel that this class of physicians is exempt from the cap owing to the fact that the statutory amendments that establish this revised annual cap do not pertain to the specific passages of the law governing H-1B physicians working in underserved areas or VA facilities. Furthermore, the required H-1B data sheet utilized by the government continues to inquire as to whether the alien beneficiary is a physician holding a J-1 waiver which would seemingly indicate a policy to exclude this specific class from the H-1B cap.

Also excluded from the H-1B cap are foreign nationals who are extending their H-1B status (as opposed to obtaining H-1B benefits for the first time) as well as those individuals working in institutions of higher education (i.e., universities) or related or affiliated nonprofit entities, which would include many physician-scientists. As one final issue of note to the readership of this Newsletter, the law unquestionably imposes a three-year H-1B obligation on physicians who have received their waivers based on clinical service in either medically underserved areas or VA facilities. Conversely, this three-year H-1B obligation does not attach to physicians receiving waivers under other circumstances, including physician-scientists whose waivers are based upon their research contributions and achievements.

O-1 ADJUDICATION STANDARDS FOR PHYSICIANS-SCIENTISTS

Whereas a physician in J-1 status is ineligible for an H-1B visa or permanent residence without either a waiver or a two-year period of residence in the home country, there is no such prohibition in qualifying for an O-1 visa as an “alien of extraordinary ability.” While this nonimmigrant visa classification has been established for foreign nationals holding national or international acclaim based on sustained achievements in the alien’s field of endeavor, over the years it has recurrently been used by academic medical centers to recruit foreign physician-scientists of unquestioned capabilities. Whereas O-1 petitions were recurrently approved, starting in the spring of 2002, we noted a sharp change in immigration attitudes with the result that many previously approvable O-1 requests have been denied over this past period of time, including requests for extensions of petitions which were previously approved.

By its definition, the term “extraordinary abilities” involves a subjective determination. The problem, in a word, is that the Citizenship and Immigration Services (USCIS, formerly INS) examiners have adopted an apparently across-the-board doctrinal opposition to O-1 requests which seemingly does not give full and fair consideration to the evidence presented and the true merits of many cases, although we have also received approvals of O-1 petitions that substantiate our belief in the existence of inconsistent standards.

On November 19, 2003, an ad hoc delegation comprised of four representatives of leading university medical centers met with ranking USCIS officials in Washington. I feel quite fortunate to have been invited to attend this session; in fact, I was the only immigration lawyer present at this meeting.

While I cannot in good faith report a definitive resolution, I can state that this was a productive, open-minded meeting held to resolve a growing problem in the O-1 realm. The USCIS has indicated that it would consider an extensive position paper from the academic medical community essentially intended to address the standards relevant to O-1 adjudications, and I am currently heavily involved in the formulation of this document. Above all, we hope to explain the academic medical environment and the valuation to be placed on various indicia of attainment. Hopefully, this type of dialogue will produce not only an amelioration of the restrictiveness in current USCIS adjudications of O-1 requests, but will restore a sense of stability, predictability, and fair play to the process.

In one highly encouraging development, though, the USCIS has promised to presume the approvability of O-1 extensions, absent the presence of fraud, misrepresentation, or gross error. By enacting this policy, the USCIS is seeking to eliminate a growing embarrassment of disqualifying a foreign national from the exact same benefit as had been previously granted.

In my opinion, this is a healthy step toward creating a more predictable framework for O-1 requests, although my concern is that a liberalization of O-1 extensions will result in a constriction in initial O-1 adjudications. It is precisely to avoid this possibility that we are working quite hard on the position paper for consideration by USCIS.

SOME PERSONAL MATTERS

I continue to be gratified at the expansion of our work in the IMG arena. We are serving the immigration interests of a broad and geographically diverse clientele spanning private medical practices, academic medical centers, biomedical research institutions, medical clinics, hospitals, and federal institutions. I am both proud of and grateful to my colleagues within this firm for sustaining a high level of client service and substantive expertise in this field of legal practice.

As noted above, I am at present heavily engaged in a concerted effort to work with the USCIS on developing more transparent and realistic adjudication standards of O-1 petitions. I take immense pride in sharing my own perceptions and insights with the immigration authorities in an effort that will, I hope, result in a more workable adjudication schema for the benefit of the academic community.

I am also engaged with a core group of my colleagues in working with the Congress on an extension and hopefully an expansion of the Conrad State Waiver Program. We believe that this program has been a very laudable initiative to address to some degree the physician maldistribution pattern in this country. We think that improvements can be made and hope to enter into a productive working relationship with the congressional leadership on an invigoration of this state-based J-1 waiver program.

I have also signed an agreement to update my treatise on immigration law for the IMG community that will be published this spring by West Publishing in its publication Immigration Briefings. More years ago than I currently care to remember, I authored the first comprehensive analysis of immigration issues for international physicians, and this piece was last updated in 1996. Given the dynamic nature of medicine and law, I am looking forward to offering my own thoughts and expertise for the consideration of the legal and medical communities.

These are busy, productive, and challenging times. I again would like to thank our clients, colleagues, and partners for making this a productive and growing year, and look forward to a continuation of our relationships in this year to come. I wish you all a happy and a healthy New Year.

As always, I would welcome your thoughts and comments on any of the issues presented here.

Cordially,

ROBERT D. ARONSON
December 2003

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.