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Starting in 1976, international medical
graduates ("IMGs") have been barred from obtaining
many types of benefits under U.S. immigration laws even after
they have completed medical residencies and fellowships in the
U.S. Many of these restrictive laws remain on the books despite
the tremendous need for various types of physicians across the
U.S. The Department of Health and Human Services' listing of
Health Professional Shortage Areas occupies nearly 100 pages of
small print.
In 1991, this "Berlin Wall" of laws barring most
IMGs from being sponsored by their employers to practice
medicine in the United States began to crumble. With the aid of
an increasing number of federal and state agencies, hundreds of
hospitals, group practices and HMOs started sponsoring IMGs for
both temporary working visas and permanent residence. In
addition, many residency programs began to admit IMGs on
temporary working ("H-1B") visas rather than exchange
visitor ("J-1") visas. An H-1B visa allows an IMG
freedom from the onerous requirement written into the 1976 law
that IMGs on J-1 visas must return home for a minimum of two
years after completing medical residencies and fellowships in
the U.S.
REQUIREMENTS FOR J WAIVERS
States require that IMGs pass certain tests and complete a
medical residency program in the U.S. before they can qualify
for licenses. Since 1976, U.S. immigration laws have forced
thousands of IMGs to obtain "J-1" visas in order to
pursue medical residencies and fellowships in the U.S. By law,
any IMG who uses a J-1 visa for this purpose is subject to the
two-year foreign residency requirement mentioned above.
The law provides that the two-year residency requirement may
be waived under the following circumstances:
- If the IMG can demonstrate a "well-founded fear of
persecution" if forced to return to his country;
- If the IMG can prove that returning to his country would
result in "exceptional hardship" to himself or to
members of his immediate family who are U.S. citizens or
permanent residents; or
- If the IMG is sponsored by an "interested
governmental agency".
Because waivers based on persecution or hardship are extremely
rare, most IMGs who seek waivers do so by searching for an
interested governmental agency to sponsor them.
TRADITIONAL SPONSORING AGENCIES
Until late 1994, the law provided that the interested
governmental agency had to be federal rather than state or
local. Although any federal agency was permitted to sponsor IMGs,
in practice, only a few agencies sponsored substantial numbers
of IMGs. These agencies were as follows:
1. Department of Health and Human Services (HHS)
In a regulations published in 1984 (49 Fed. Reg. 9900, March 16,
1984), HHS published rules establishing an Exchange Visitor
Review Board and promulgating "stringent and restrictive
criteria" to consider requests for waivers of the foreign
residency requirement for physicians.
In determining whether to sponsor an IMG for a waiver, the
Board considers the following key factors: (1) The program or
activity in which the IMG is engaged must be "of high
priority and of national or international significance in an
area of interest" to HHS. Merely providing medical services
in a medically underserved area is not sufficient; (2) The IMG
must be an "integral" part of the program or activity
"so that the loss of his/her services would necessitate
discontinuance of the program, or a major phase of it"; and
(3) The IMG "must possess outstanding qualifications,
training and experience well beyond the usually expected
accomplishments at the graduate, postgraduate, and residency
levels, and must clearly demonstrate the capability to make
original and significant contributions to the program".
In practice, HHS will only recommend waivers for IMGs engaged
in research, not for those who treat patients. HHS waiver
applications should be mailed to: Joyce E. Jones, Executive
Secretary, Exchange Visitor Review Board, Room 627-H, Hubert H.
Humphrey Building, Department of Health and Human Services, 200
Independence Avenue, S.W., Washington, D.C. 20201.
2. Veterans Administration (VA)
With over 170 health care facilities located in various parts of
the U.S., the VA is a major employer of physicians. In addition,
many VA hospitals are affiliated with university medical
centers. Unlike HHS, the VA will sponsor IMGs involved not only
in research but in patient care (regardless of specialty) and
teaching. The waiver applicant may engage in teaching and
research in conjunction with clinical duties.
However, similar to HHS, the VA's latest guidelines (issued
on June 22, 1994) provide that it will act as an interested
government agency only where the loss of the IMG's services
would necessitate the discontinuance of a program, or a major
phase of it, and that recruitment efforts have failed to locate
a U.S. physician to fill the position.
Can an IMG who wishes to be employed by the VA and an
affiliated facility obtain VA-sponsorship for a J waiver? Yes,
but only if he or she is employed at least 50% by the VA
facility.
The procedure for obtaining VA sponsorship for a J waiver is
as follows: (1) The IMG should deal directly with the Human
Resources Department at the local VA facility; (2) The facility
must request the VA's Chief Medical Director to sponsor the IMG
for a waiver.
The waiver request should include the following
documentation: (1) A letter from the Director of the local
facility describing the program, the IMG's immigration status,
the health care needs of the facility, and the facility's
recruitment efforts; (2) Recruitment efforts including copies of
all job advertisements run within the preceding year; and (3)
Copies of the IMG's licenses, test results, board
certifications, IAP-66 forms, etc.
The VA contact person in Washington, D.C., Brian McVeigh,
should be contacted by the local medical facility rather than by
IMGs and their attorneys.
3. The Appalachian Regional Commission (ARC)
The ARC is comprised of over a dozen states on the East Coast
and in the South. These states include Alabama, Georgia,
Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Virginia and West
Virginia. Since 1992, the ARC has sponsored approximately 200
primary care IMGs annually in counties within its jurisdiction
which have been designated as HPSAs by HHS.
ARC, in its February 1994 revision of its J waiver policies,
requires that waiver requests be submitted initially to the ARC
contact person in the state of intended employment. If the state
concurs, a letter from the State's Governor recommending the
waiver must be addressed to Jesse J. White, Jr., the Federal
Co-Chairman of the ARC. Also included in the waiver request
should be: (1) A letter from the facility to Mr. White stating
the proposed dates of employment, the IMG's medical specialty,
the address of the practice location, an assertion that the IMG
will practice primary care for at least 40 hours per week in the
HPSA, and details as to why the facility needs the services of
the IMG; (2) J-1 Visa Data Sheet; (3) ARC Federal Co-Chairman's
J-1 Visa Waiver Policy, and the J-1 Visa Waiver Policy Affidavit
and Agreement with the notarized signature of the IMG; (4) A
contract of at least two years duration; (5) Evidence of the
IMG's qualifications including a resume, medical diplomas and
licenses, and IAP-66 forms; and (6) Evidence of recruitment
efforts within the preceding six months. Copies of
advertisements, copies of resumes received and reasons for
rejection must be included.
The ARC will not sponsor IMGs who have been out-of-status for
six months or longer.
Requests for ARC waivers are processed in Washington, D.C. by
Laura Dean Greathouse, ARC, 1666 Connecticut Avenue, N.W.,
Washington, D.C. 20235. Usually, ARC is able to forward a letter
confirming that a waiver has been recommended to the USIA to the
requesting facility or attorney within 30 days of the request.
NEW SPONSORING AGENCIES
During the past two years, a number of new federal and state
agencies have begun to sponsor IMGs:
1. The Department of Agriculture (USDA)
Due to an extreme shortage of primary care physicians in areas
located outside the ARC, the USDA began to act as a sponsoring
agency for physicians needed by health care facilities in rural
areas across the U.S.
The USDA sponsors physicians who practice in the following
areas: family medicine, general surgery, pediatrics, obstetrics
and gynecology, emergency medicine, internal medicine and
general psychiatry. The USDA will not sponsor a physician to
practice in an area located within the jurisdiction of the ARC.
The USDA waiver program has been in a state of flux since
late 1994. In November 1994, USDA suspended processing of new
waiver requested while it considered the issuance of new
guidelines.
Then, on April 5, 1995, the USDA issued new regulations
regarding FMGs which became effective on May 1. These
regulations substantially restricted the scope of the DOA waiver
program. For example, in order for an area to be deemed
"rural", the county in which the health care facility
is located would have had to have a population of under 20,000
according to the last census. Also, the facility must be located
in a HPSA. The IMG must sign a contract with a health care
facility for a minimum period of three years. No IMG whose
immigration status has lapsed for six months or more will be
considered for sponsorship.
However, only a few weeks after the new guidelines became
effective, USDA revised its policy once again. It scraped the
restrictive definition of "rural", but retained many
of the other requirements.
Since August 1994, USDA has required that each request for a
waiver be supported by a letter of concurrence ("no
objection") from the Department of Health in the state of
intended employment. A few states (e.g., Georgia, Mississippi,
New York and Ohio) require that the USDA waiver request and
accompanying documentation be submitted directly to them. If
they concur with the request, they forward the entire packet
together with a no objection letter to USDA.
USDA waiver requests should be mailed to Linda Seckel,
Program Manager, J-1 Visa Residency Waiver Program, Bldg. 005,
Room 320, BARC-West, 10300 Baltimore Blvd., Beltsville, MD
20705-2350. Due to a moratorium which existed between November
1994 and April 1995, the current processing time is
approximately four months.
2. State Departments of Public Health
Traditionally, only agencies of the federal government have been
permitted to sponsor IMGs for waivers of the two-year foreign
residency requirement. However, late in 1994, a new law was
enacted which permits state departments of public health to
sponsor IMGs for J-1 waivers.
An amendment to the Immigration and Nationality Technical
Corrections Act of 1994 (INTCA) (Public Law No. 103-416) created
a pilot program under which each state (plus Guam, Puerto Rico,
Washington D.C. and the U.S. Virgin Islands) may sponsor up to
20 IMGs for J-1 waivers each year. The program applies only to
IMGs who enter the U.S. in J-1 status prior to June 1, 2002.
To be eligible to participate in this program, an IMG must
agree to be employed for a minimum of three years in a facility
which is located in an area designated by HHS as having a
shortage of health care professionals.
Unlike the federal programs which allow a physician to adjust
status from J-1 to permanent resident, the state program
reimposes the two-year foreign residency requirement on any
physician who reneges on his contractual obligations. Typically,
a physician sponsored by a state department of public health
will change status from J-1 to H-1B for a period of three years
before becoming a permanent resident.
The U.S. Information Agency (USIA) published interim
regulations to implement this program on April 3, 1995. These
regulations impose restrictions not contained in the law. For
example, while the law requires only those physicians who are
contractually obligated to return to their home countries for
two years to obtain "no objection" letters from these
foreign governments, the regulations require every IMG to obtain
a "no objection" letter in order to apply for a
waiver.
The new program has generated considerable interest among
IMGs. Even in the absence of regulations from most states, a
large volume of applications for waivers have been submitted to
state departments of public health. This is understandable given
that the first fiscal year of the law's operation will expire on
September 30, 1995.
There is no application form for a state-sponsored J waiver.
However, the USIA regulations specify that an application must
include the following documents: (1) A letter from the State
Department of Public Health identifying the physician and
specifying that it would be in the public interest to grant him
a J waiver; (2) An employment contract valid for a minimum of
three years. The contract must state the name and address of the
facility for which the physician will be employed and the
geographic areas in which he will practice medicine; (3)
Evidence that the these geographic areas are located within
HPSAs; (4) A statement by the physician agreeing to the
contractual requirements; (5) Copies of all IAP-66 forms; (6)
Completed USIA Data Sheet; and (7) Each application must be
numbered sequentially (since the number of physicians who may be
granted waivers in a particular state is limited to 20 per
year).
States may choose to participate, or not to participate, in
this program. Participating states include Alabama, Alaska,
Arkansas, Arizona, Delaware, Florida, Georgia, Illinois,
Indiana, Iowa, Kentucky, Maine, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
Hampshire, New Mexico, New York, North Carolina, North Dakota,
Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina,
Vermont and Washington. Undecided states include California,
Connecticut, New Jersey, Virginia and Wyoming. Non-participating
states include Hawaii, Idaho, Kansas, Louisiana, Montana,
Oregon, South Dakota, Tennessee, Texas and Utah.
CANADIAN-TRAINED PHYSICIANS
Graduates from Canadian medical schools, whatever their country
of origin, are not considered to be IMGs. This is because the
U.S. Department of Education through the Licensing Committee on
Medicine Education (LCME) has certified all U.S. and Canadian
medical schools.
Over 40 states accept passage of the Licentiate of the
Medical Council of Canada examination (LMCC) for licensure. A
Canadian physician who is licensed in the state of intended
employment and who has passed both parts of the Federation
Licensing Examinations (FLEX), or an equivalent examination as
designated by the Secretary of HHS, is eligible to be petitioned
for H-1B temporary working status. HHS has designated the
following examinations as equivalent to the FLEX: (1) the
National Board of Medical Examiners (NBME) examination, parts I,
II and III; and (2) the United States Medical Licensing
Examination (USMLE), parts I, II, and III. Of these three
examinations, only the USMLE is currently being offered.
Canadian physicians who are licensed in the state of intended
employment may apply to immigrate to the U.S. through employer
sponsorship whether or not they have passed the FLEX, NBME or
USMLE examinations. In a peculiar anomaly, many physicians who
are eligible for both state licensure and permanent residence,
are nonetheless barred from obtaining temporary H-1B status.
H-1B MEDICAL RESIDENTS
Since 1991, the law has allowed medical residency programs to
sponsor foreign-born medical residents for H-1B, rather than
J-1, visas. This year, hundreds of IMGs completed medical
residency programs in the U.S. on H-1B visas thereby avoiding
the two-year foreign residency requirement.
Upon completion of their residency programs, these physicians
are able to obtain H-1B visas and permanent resident status
through employer sponsorship. Other IMGs holding H-1B visas are
able to immigrate to the U.S. through close relatives who are
U.S. citizens or permanent residents.
In order to obtain H-1B status as a medical resident, an IMG
must be in possession of a temporary state license, and have
passed all parts of either the FLEX, the NBME, or the USMLE
examinations. Most states will not allow medical residents to
take USMLE, Part III until they have completed the first year of
their residency programs. However, there are 11 states which
permit persons to take USMLE, Part III prior to entering a
residency program. IMGs interested in being sponsored for H-1B
status must travel to one of these states to take and pass this
examination before they may be sponsored for an H-1B visa.
CONCLUSION
Despite some significant obstacles, there are a number of forms
of relief available to foreign medical graduates who seek to
practice medicine in the U.S. Each of these alternatives
requires careful planning and a significant commitment of time
and resources.
While the best course of action for IMGs is to obtain H-1B
visas to pursue their medical residencies, where IMGs have
already been accorded J-1 status, opportunities to obtain
waivers of the two- year foreign residency requirement may exist
for those who are willing to make a commitment to perform
primary care medicine in medically underserved areas.
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