D-1 and finished? Review of waiver options available to D-1 physicians | Harris Beach PLLC

As almost anyone in the healthcare industry can attest, the United States has experienced a significant shortage of physicians and other healthcare professionals in many disciplines in recent years. An increasing number of individual facilities and entire geographies find themselves looking for additional staff to meet the needs of their patients. These shortages were further highlighted during the pandemic.

International medical graduates (IMGs) remain a source of manpower available to address this shortage, and although about 30% of medical residents in the United States are IMGs, more can be done to ensure that these shortages are met. residents will have the ability, from a visa and immigration perspective, to actually practice in the United States after completing their medical training. Despite the attention of the press and mainstream media, and pressure from professional associations and other lobby groups, avenues for medical residents to move to visa status that will allow them to work and practice in the United States remain very limited.

Many IMGs use the J-1 visa category in order to come to the United States for post-graduate medical education through an accredited residency or scholarship program. The J-1 is an exchange visa, which, as a condition of its issuance, may require the visa holder to return to their home country after completion of the training program in the United States, in order to perform the “exchange” mission of the J-1 category. By law, all physicians who complete a U.S. residency or stock exchange training program on a J-1 visa are automatically subject to this two-year residency-at-home (HRR) requirement. The HRR, while in effect, renders the physician ineligible for an H-1B visa (the type of work visa most frequently used for physicians and other professionals in the United States) and also for permanent resident status ( a “green card”) in the United States, unless and until the physician returns to his or her home country to meet the 2-year HRR, Where the doctor obtains a waiver of this requirement. (Note, however, that there is an exception for Canadian citizens, who can obtain H-1B status in the United States while remaining subject to HRR, although they would still have to meet HRR or receive a waiver to be eligible for permanent resident status in the United States)

Generally, there are four bases under which a J-1 exchange visitor can request a waiver of the two-year HRR. Each of these bases / channels has its own requirements and procedures. The categories of waivers available include:

  • Waiver of no objection: This is often the simplest category / waiver process, in which the J-1 visa holder obtains a letter from the government of their home country stating that they do not object to the J-1 visa holder remains in the United States. (*By law, J-1 physicians are excluded from eligibility for a no objection waiver. *)
  • Exceptional difficulty: When the J-1 visa holder has a spouse or child who is a U.S. citizen or lawful permanent resident, and can demonstrate that the eligible family member would experience exceptional hardship if the J-1 visa holder were to return home for two years, the US government has the discretion to waive the two-year HRR for the J-1 visa holder.
  • Persecution: Where the J-1 visa holder can demonstrate that they would face persecution in their home country, because of their race, religion or political opinion, the U.S. government has the discretion to waive the HRR of two years for the D-1. visa holder.
  • Interested government agency: Where a federal government agency has a documented interest in retaining the J-1 visa holder in the United States to continue working on a specific project or business, that agency may “sponsor” a waiver on behalf of the visa holder. J-1 and request the United States Department of State / Department of Homeland Security to allow the holder of the J-1 to remain in the United States and avoid having to meet the HRR.

With regard to J-1 physicians in particular, the fourth of these bases above, the exemption from the government agency concerned, is the most commonly sought and itself has several sub-categories of exemptions / programs accessible only. to doctors. While each program has its own unique requirements, the common thread between them is that they each require that the physician have a job offer from a health care facility / institution in the United States, in order for the physician to occupy a full-time position. patient care for a medically underserved population. The workplace should be located in an area designated by the US Department of Health and Human Services as a Health Professional Shortage Area (HPSA) and / or Medically Underserved / Medically Underserved Population (MUA / MUP) area ). The physician and the sponsoring institution must commit to maintaining the employment of the physicians in the shortage area for a period of three years, and this three-year period of service must be completed by the physician with H-1B status. . At the end of the three-year commitment period, the J-1 doctor’s two-year home residency requirement is officially lifted and the doctor then becomes eligible for permanent resident status (a “green card”) for United States.

The main distinguishing factors / requirements of each of the physician-specific exemption programs are summarized below:

Conrad 30 / “State 30” exemption program

  • Allows each of the 50 states to request up to 30 waivers for physicians each year. The workplace must be in the sponsoring state and must be in a federally designated HPSA or MUA / MUP. Due to the limit of 30 per state, competition can be significant in high-volume states that receive more than 30 requests, while some states typically do not use their 30 waivers each year.
  • States have the discretion to grant up to 10 of their 30 waivers per year to D-1 physicians whose place of employment is not within an HPSA or MUA / P, if the physician will provide care to patients who to reside in areas of shortage (called “FLEX 10”)
  • Administered by state Ministries of Health – accordingly, each state has its own specific requirements, application process, and timeline / deadline. Check the website of the relevant state health department for details.
  • Some states eligibility limit primary care physicians (and will not consider requests from physicians working as specialists or having subspecialty training), while other states formally or informally preference primary care physicians.

U.S. Department of Health and Human Services (HHS) Waiver Program

  • No limit on the number of exemptions available each year (compared to the Conrad 30 program above, which is limited to 30 per state, per year).
  • By law, eligibility for an HHS exemption is limited to physicians who will practice in a primary care area (defined as family medicine, general internal medicine, general pediatrics, obstetrics and gynecology) or psychiatry. general, and who have completed their primary care or psychiatric residency programs no more than 12 months prior to the employment start date under their contract with the sponsoring institution / institution. Therefore, specialists and many J-1 doctors who have received training on the stock exchange would not be eligible.
  • The sponsoring employer / institution must be located in a geographic area that has a health worker shortage score of 07 or higher.
  • Originally, the HHS waiver program was only available to sponsoring facilities designated as a federally accredited health center (FQHC) or rural health center (RHC), which significantly limited its applicability. However, in mid-2020, the program was extended to any facility with an HPSA score of 07 or higher.

Appalachian Regional Commission (ARC) exemption program

  • No limit on the number of exemptions available each year.
  • Must be sponsored by a state in the Appalachian region, which includes parts of Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee and Virginia, and all of West Virginia (a list of eligible counties is available here. In addition to being in the Appalachian region, the workplace must also be in an HPSA as designated by the Health Resources and Services Administration.
  • As a general rule, preference is given to physicians who will practice primary medical care, although exemption requests for physicians who will practice specialty medicine may be considered “with an appropriate demonstration of need”. In both cases, the physician must have completed a residency in family medicine, general pediatrics, obstetrics, general internal medicine or psychiatry.

Delta Regional Authority (DRA) Waiver Program

  • No limit on the number of exemptions available each year.
  • Must be state sponsored within the Delta Regional Authority, which includes parts of Alabama, Arkansas, Illinoi, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee (a list of eligible counties is available here. In addition to being within the jurisdiction of the Delta Regional Authority, the workplace must also always be in an HPSA or MUA as designated by the Health Resources and Services Administration.
  • Available for both primary care physicians and specialists.

Despite the options available above, significant limitations remain for international medical graduates, who then become US-trained residents and medical fellows, to pursue their careers in the United States. Each of the above waiver programs has its own restrictions, whether it is a restriction on the number available each year (Conrad 30), a restriction on the medical field in which the doctor can work (HHS ) or a restriction on the state in which the sponsoring institution is located (ARC, DRA). Without a reliable and widely available path for IMGs to move into a practicing physician role, the physician shortage that is hampering our country is likely to last for some time. In the meantime, healthcare facilities and institutions in the United States are wise to consider the above options and the opportunities available to them when recruiting for desperately needed medical positions.

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