February 2008 Newsletter
Update on extension of conrad state 30 waiver program

February 29, 2008
By Robert D. Aronson

DEAR CLIENTS AND FRIENDS:

The Conrad State 30 Waiver Program over the past 14 years has proven to be a very useful initiative in facilitating the placement of J-1 Physicians to designated medically underserved areas. In any given recent year, the various state departments of health recommend J-1 waivers to anywhere from 600-1,000 Physicians. As a consequence of this action, International Medical Graduates (IMGs) undertake an obligation to work for three years in medically underserved communities in return for their right to remain in the United States. Particularly given the well-documented, growing, and alarming shortages of Physicians in the domestic workforce, this waiver program has not only tapped into a useful supply of Physicians, but also has ensured that this cohort of foreign Physicians will work in socially desirable practice situations.

For a more extensive discussion of this waiver program and its importance to healthcare coverage in medically underserved regions of the United States, I would recommend my article entitled “The Evolution Of The Conrad Waiver Program: Ten Years Of State Based J-1 Waivers To Physicians.” http://www.aronsonimmigration.com/article_2005_conrad.htm.

The current version of the Conrad Waiver Program will sunset on June 1, 2008. This does not mean that the entire program will terminate as of this date; rather, it simply means that if the program is not renewed, J-1 Physicians entering after this termination date will not be eligible for J 1 Waivers.

I am very pleased to announce that Senator Kent Conrad (D-ND) introduced an extension to his waiver program on Wednesday, February 27, 2008. The measure is entitled the “Conrad State 30 Improvement Act” and carries the Bill number S. 2672. While any immigration-related proposal has a very challenging road to passage given the current conflicted attitudes toward immigration within the U.S. Congress, this is a tried-and-true program that has enabled medically underserved communities not only to recruit, but also to retain, Physicians who are literally compelled to work in traditionally hard-to-fill placements.

Senator Conrad’s proposed extension is a culmination of a great deal of effort and extended discussion with various stakeholders in this entire effort. I was very honored to have been consulted during the formulation stage of this legislation and to have participated in a highly creative, oftentimes impassioned, and very informed discussion on the future of the Conrad State 30 Program and the imperative of forthrightly addressing the healthcare crisis that afflicts many underserved – and particularly rural – communities.

The legislation introduced by Senator Conrad essentially builds on the architecture of the existing waiver program. At core, the Conrad waiver program empowers each state to recommend a finite number of waivers (now set at 30 waivers/year) to J-1 Physicians who will commit for at least a three-year period of time in either designated medically underserved communities or in specific practice opportunities that benefit the indigent and the medically underserved.

But there are some differences in this recently introduced measure that hopefully and presumably will enhance its relevance in meeting the needs of medically underserved communities. The key features in the proposed extension include the following:

o Number of waivers per state will continue to be limited to 30 waivers/year.

o However, within this numerically limited figure, the number of “Flex slots” will be raised from 5 to 10, annually. The “Flex slots” give each state the flexibility to recommend waivers for particularly meritorious placements of Physicians whose work will benefit the indigent and the medically underserved, even if the practice site is not located in a medically underserved area. In our own experience, these “Flex slots” are generally utilized by employers that provide important safety net services to the indigent and the medically underserved.

o In an important development, the states under the proposed extension can also issue an “exemption” to H-1B Physicians who are seeking to work in either medically underserved areas or particularly meritorious practice situations. We anticipate that this H-1B Exemption measure will be utilized by H-1B Trainees (i.e., H-1B exempt) who are seeking to work for private medical employers (i.e., H-1B cap-subject). Any exemptions will count against the state’s 30-waiver limitation. This H-1B Exemption provision will be very important for enabling a Physician to move seamlessly from cap-exempt employment (generally as a Trainee within an academic medical center) to an H-1B cap-subject position (generally, a private or, at least, a non-academic employer). At present, any such migrations from a cap-exempt to a cap-subject position means that the new H-1B employment cannot take effect until October 1, thereby frequently exposing a Physician to a disruption in his/her employment and immigration status. This H-1B Exemption provision would eliminate any such disruptions in employment eligibility.

o If either a J-1 Waiver or an H-1B Exemption is issued, the Physician is obligated to work for three years in H-1B status within the sponsoring medical facility. This certainly serves as a very powerful provision for retaining a Physician’s services within the community for an appropriate period of time.

o Once a Physician has completed the three-year H-1B employment obligation in the community, a Physician would then be exempted from the backlogs in the Immigrant Visa numbers. This is an important and highly desirable provision. Please note: A Physician would still need to affirmatively qualify for permanent residence, most likely through either a Labor Certification Application/PERM or a National Interest Waiver. However, this quota exemption would eliminate the current, absurd situation in which Physicians from certain countries – currently, India and China, but very possibly in the future from other countries as well – need to wait in limbo for years until an Immigrant Visa number becomes available within the country quota allocation. In my own opinion, this possibility to receive an exemption from the Immigrant Visa quota backlogs will serve as a very powerful inducement to Physicians to utilize this waiver program.

o Given the inducements of an exemption both from the H-1B quota and the Immigrant Visa quota, conceivably we will see a sharp increase in the utilization of the Conrad Waiver Program. Should this occur, we expect to see an increasing number of states use entirely their full allotment of 30 waivers per year. In anticipation of a run-up on the waiver numbers, this proposed extension provides a limited safety release. Specifically, if 90% of the nationwide waivers are filled in a given year, each state would receive five additional waiver numbers, thereby bringing their total to 35 waivers per year. The number of waivers will continue to be adjusted upwards if states use 90% of the adjusted total of nationwide waivers. Only states that have received at least five waivers in any of the three previous years would be included when calculating the 90% threshold. Each state cap would be reset to 30 at the beginning of each fiscal year.

Unquestionably, this proposed extension seeks to negotiate a balance between various competing considerations, including: 1) a major, unmet need for additional Physicians to address ever-growing shortages in the domestic Physician workforce; 2) the need to channel Physicians into medically underserved areas; 3) an ability to readjust the number of waivers, within limits, based on the level of utilization of the Program itself; 4) a sensitivity to the precarious, emotionally-charged nature of the immigration debate by focusing on the healthcare aspects of this proposal; and 5) an enlargement in the flexibility of state healthcare planners to place Physicians in practice situations that will best serve the healthcare needs of local residents.

This extension likely faces several hurdles to passage. There are certainly various alternative opinions on how IMGs can best serve our country’s healthcare needs, including the implementation of an entirely new visa classification that will more organically recognize the nature of medical education and employment and the significant role of Physicians to our national welfare. Frankly, I am intrigued and highly respectful of this alternative approach, but given the reality of the current legislative atmosphere, I am concerned that any large-scale revision to Physician immigration will result in failure. As it is, I am already concerned at the possibility that this current proposal will be stigmatized and held up as being an immigration measure, although in truth, it is a critically needed initiative to expand healthcare coverage for rural and medically underserved parts of the United States.

I will certainly attempt to keep our readership informed of the progress in this legislation’s passage.

As always, we invite your questions and concerns, and hope to be not only a source of information on the extension of this waiver program, but also a proponent for additional measures that will utilize foreign Physicians in a manner that will benefit U.S. national interests in enhancing the healthcare coverage to medically at-risk populations.

Cordially,

ROBERT D. ARONSON

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.