September 22, 2016

Is Physicians Visa Program Ailing as EB-5 Spat Roils?

Sept. 21 — The Conrad State 30 visa waiver program, which places foreign physicians in underserved U.S. communities, might become an innocent victim of congressional wrangling over the EB-5 immigrant investor program.

Foreign physicians who complete their medical residencies in the U.S. on J-1 visas must return to their home countries for two years before they can work here. The Conrad State 30 program, set to expire Sept. 30, waives that requirement if the physician agrees to practice in a rural area or medically underserved region for three years.

Each state gets up to 30 slots per fiscal year for physicians granted the waiver.

But historically the program’s reauthorization has been tied to the reauthorization of the EB-5 immigrant investor program. And with the EB-5 program under fire in Congress, the future of the physicians program is uncertain.

‘Congress Doesn’t Have an Appetite.’

“Congress doesn’t have an appetite” to negotiate Conrad State 30 changes right now, Memphis, Tenn., immigration attorney Greg Siskind told Bloomberg BNA Sept. 9. And some of that has to do with EB-5 disagreements.

Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.), who lead the Judiciary Committee, have demanded that lawmakers overhaul the EB-5 program or let it expire. House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has also introduced a bill ( H.R. 5992) to that effect.

But they face opposition from both those who disagree with their proposals and those who don’t want the program to lapse, even if it means maintaining the status quo.

Even if lawmakers can hammer out an EB-5 deal, they aren’t likely to spend time on the Conrad State 30 program.

And “it’s a shame,” Jennifer Minear, an attorney with McCandlish Holton in Richmond, Va., told Bloomberg BNA Sept. 15.

A “lot of effort” was put into a Conrad State 30 bill introduced in May 2015, according to Minear, who serves as national treasurer of the American Immigration Lawyers Association. “That was negotiated pretty intensely and had a lot of bipartisan support,” she said.

The bill ( S. 1189), introduced by Sens. Amy Klobuchar (D-Minn.), Jerry Moran (R-Kan.), Susan Collins (R-Maine) and Heidi Heitkamp (D-N.D.), would make the Conrad State 30 program permanent and introduce various program changes. But the legislation so far hasn’t seen the light of day.

“I really feel that this bill is more like a health bill,” because its primary purpose is getting physicians to areas that need them most, Minear said. But it’s “so, so difficult” to get anything through Congress that “smells like immigration,” she said.

Addressing Physician Shortages

Recent reports suggest that the country is in need of physicians.

The Association of American Medical Colleges in April projected a shortage of between 61,700 and 94,700 physicians by 2025. Primary care shortages range from 4,900 to 35,600, with shortages in medical specialty areas ranging from 37,400 to 60,300.

And those shortages are being felt most acutely in the rural areas the Conrad State 30 program targets. A Sept. 20 report from the pro-immigration Partnership for a New American Economy said eight of the 10 states with the highest ratios of available health-care jobs to unemployed health-care workers are states where at least 75 percent of the counties are rural.

In the U.S. as a whole, the ratio of job advertisements to unemployed physicians and surgeons is 26.54, the report said.

The Partnership for a New American Economy is co-chaired by Michael Bloomberg, the founder and majority owner of Bloomberg BNA parent Bloomberg LP.

According to data provided to Bloomberg BNA Sept. 20 by the American Medical Association, there are 239,056 international medical graduates actively practicing across the country.

‘Extenuating Circumstances.’

The changes proposed by S. 1189 could make the Conrad State 30 program more attractive to foreign physicians. One of the changes would be a clearer definition of “extenuating circumstances,” Minear said.

Under current law, physicians who can’t complete their required three years of service in the same location can move to another medically underserved area only under extenuating circumstances. But that term is “very gray and undefined,” she said.

S. 1189 would spell out that those circumstances include employer violations of the employment contract, labor law or immigration law, Minear said. The bill would also allow physicians to change employers in situations where they are just “really, really unhappy in their job” and “just not a good fit,” but “extenuating circumstances” don’t exist, Minear said.

The measure also would allow physicians who can’t work in a state that’s used up all of its 30 slots to apply to another state that still has openings, Minear said. Right now, physicians who apply to an oversubscribed state are “just stuck” and wind up having to leave the U.S., she said.

In addition, the bill would specify what needs to be in physicians’ employment agreements, such as the number of on-call hours they’ll be responsible for and whether they need to buy malpractice insurance, she said.

Administrative Changes

There are also program changes that can be made without Congress. One has to do with how the J-1 and H-1B visa periods align. “It never matches up precisely,” Siskind said.

Physicians who participate in the Conrad State 30 program work on H-1B highly skilled guestworker visas.

The physician’s H-1B often runs out just shy of the three years he or she needs to complete the service period for the waiver, Siskind said. That means that the employer has to petition for an H-1B extension, leaving the physician “stuck” in that job for another year or more just to finish up the few weeks or months left to fulfill the service period, he said.

That isn’t a problem if the physician is planning on staying in that job, he said. But it does give employers a great deal of leverage, and those “who want to play games” can make it “extremely difficult” for a physician to finish his or her three years without giving up something major in return, Siskind said.

Siskind said U.S. Citizenship and Immigration Services, the Homeland Security Department agency that administers the visa programs, should adopt a “substantial compliance” policy that considers physicians to have fulfilled the three years of service if they come up short by only a month or two.

Agency Needs Experience

Siskind also suggested that the USCIS take a page from its EB-5 playbook.

The agency “put a lot of energy” into hiring people with a business background to manage the complex business plans that must be submitted with the applications, he said.

The number of immigration applications involving foreign physicians that the USCIS receives is “probably pretty close” to the EB-5 program numbers, making the two similar in size and scope, Siskind said. But unlike the EB-5 program, the USCIS doesn’t have a subject-matter expert on issues particular to immigrant physicians, he said.

The agency did seek feedback on the Conrad 30 program during a Sept. 8 teleconference. But what, if anything, comes out of it remains to be seen.

“We’ve been asking them for a while to have a liaison meeting” that includes face-to-face dialogue, Siskind said. “This is what we got,” he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com