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Providing Solutions You Need.



RECRUITMENT AND RETENTION TRAINING WORKSHOP

J-1 Waiver Program by

Robert D. Aronson October 13, 2011

1



Immigration =

tool to attract and

retain talented Physicians

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STRUCTURE OF PRESENTATION



• Current Healthcare & Workforce Realities• A Look at the IMG Workforce• Basic Immigration Overview• General Recruitment Issues• J-1 Physician Recruitment• H-1B Physician Recruitment• Permanent Residence

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BASIC GOAL OF PROGRAM

Making Physician Immigration Work as Another Recruitment Tool

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RECRUITMENT AND RETENTION TRAINING WORKSHOP

5



CURRENT HEALTHCARE & WORKFORCE REALITIES

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CURRENT HEALTHCARE REALITY:



• Pervasive shortage of physicians• Inequalities in delivery system (geographic +

compositional split)• Grossly large healthcare expenditures (16.2% of GNP)• 40 million uninsured (+20 million with unstable

coverage)• Healthcare reform: adds roughly 32 million additional

patients to system• Avoidance of healthcare rationing

7



THEORIES OF PHYSICIAN COVERAGE



1. Market Mechanisms to Govern2. Oversupply of Physicians3. Oversupply but Problems with:• Geographic Distribution• Practice (Primary Care vs. Specialty Care)

Breakdown4. Widespread, Endemic Shortages

8



PHYSICIAN SHORTAGE DIMENSIONS:



• By 2025: 124,000 (estimates vary: up to 312,000)• Immediate need in underserved areas: 16,643

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FACTORS IMPACTING SHORTAGE SITUATION



• Increase in demand (“death as an option”)• Aging physician workforce• Aging population having greater medical needs• Gender & lifestyle considerations in workforce• Corporate practice of medicine

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MORE FACTORS IMPACTING SHORTAGE SITUATION



• Expanding treatment capabilities• Tort/liability/defensive medicine• Cost of medical education• Revisions to reimbursement patterns• Alternative career options

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HEALTHCARE DELIVERY REFORM



• Increase physician workforce: funding of training slots (Resident Physician Shortage Reduction Act)

• Physician extenders (physician assistants, nurse practitioners, etc.)

• Efficiencies of service

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HEALTHCARE DELIVERY REFORM



• Preventive medical services • Telemedicine• Biomedical research• Medical ethics: end-of-life issues• Nontraditional pools of physicians (IMGs)

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NATIONAL J-1 WAIVER STATITSTICS



• 10 year period: 8264• 2010 statistics:• Primary Care: 396• Special Care: 373• Rural: 360• Non-Rural 368• Non Medically-Underserved: 119

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NATIONAL TRENDS:



• Pretty steady utilization• With increase in H-1B physicians, more possibilities

for J-1 waiver placements

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A LOOK AT THE INTERNATIONALMEDICAL GRADUATE (IMG)

WORKFORCE

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IMG: DEFINITION OF TERM



• Physician who has received medical degree outside the United States from non-accredited programs (that is, outside U.S. & Canada)

• Subset of IMG population is foreign national physicians

• Subset of foreign national physicians are those with visa needs

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DIMENSIONS OF IMG POPULATION:



• Roughly about 25% of physician workforce• About 27.5% of GME population

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POOLS OF IMGs



• U.S. Citizens (30%)• Permanent residents (26%)• Refugees (0.3%)• Temporary nonimmigrants (mainly, J-1 & H-1B) (30%)• Other (14%)

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IMPORTANT POINT: U.S. IMMIGRATION POLICY CAN

INDUCE DESIRABLE PRACTICE PATTERNS IN HARD-TO-FILL

PLACEMENTS

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TOP PROVIDER COUNTRIES



• India (20%)• Philippines• Mexico• Pakistan• Dominican Republic

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IMG PRACTICE CHARACTERISTICS


Providing Solutions You Need.22



GAP-FILLING/SAFETY-NET PRACTICE PATTERNS



• IMGs tend to practice disproportionately in non-traditional practice settings• Medically underserved areas• Serve minority, immigrant, & underserved patient

populations• Clinical settings• Primary care• Improved quality standards• Better community receptivity

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MOTIVATIONAL ELEMENTS



• Professional realities• Competitive advantage• Relocation flexibilities• Immigration policy

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SPECIFIC PRACTICE PATTERNS



A. Primary Care:• 58% in primary care (vs. 26% USMGs)• Practice Breakdown:– Internal Medicine (37%)– Psychiatry (32%)– Pediatrics (28%)– Anesthesiology (28%)– Family Medicine (27%)–OB/GYN (17%)

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SPECIFIC PRACTICE PATTERNS (CONT.)



B. Direct Patient Care: Physician-Patient hours• Greater % of owners or solo/two-physician practice

groups• Result: more hours/week, more patient contacts/week• Less involvement in administration, medical research,

teaching

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C. Coverage of Medicare/Medicaid/SCHIP Patients• Higher percentage of Medicare (67%) and Medicaid (49%)

providers• SCHIP providers (18% for IMGs vs. 10% USMGs)

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D. Critical Access Hospitals• Roughly 44% have at least 1 staff IMG

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E. Racial/Ethnic Coverage• Service to minority populations• Increase in diversity in physician workforce

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F. Coverage in Medically Underserved Areas• Comprise roughly 40% of all inner-city physicians• 68% of IMGs with temporary visa status in shortage areas

– J-1 physicians: 95% / H-1B physicians: 50%

• GAO study on retention patterns of J-1 physicians:– 90%: complete 3-year term– 33%: remain for 4 years– 28%: remain for 5+ years

• Suspected reasons:– J-1 Waiver– National Interest Waiver

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SOME FUNDAMENTALS IN IMMIGRATION



BASIC CONCEPTS OF U.S. IMMIGRATION

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THREE (3) BASKETS OF LEGAL IMMIGRATION



• Temporary, Nonimmigrant Status• Permanent Residence• U.S. Citizenship

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BASKET #1: TEMPORARY/NONIMMIGRANT STATUS



• Basic Definition:• Temporary Period of Status• Limited Scope of Activity• Requires Sponsorship

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BASKET #1: TEMPORARY/NONIMMIGRANT STATUS



• How to tell someone is in temporary status:• Letter-Number Combination:

• J-1 Exchange Visitor• H-1B Temporary Worker• F-1 Student• TN Canadian or Mexican Professional• B-1 / B-2 Visitor

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BASKET #2: PERMANENT RESIDENCE



• Right to Live and Work Indefinitely• Reentry Permission following Trips Abroad• Can be Lost

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BASKET #3: U.S. CITIZENSHIP



• Constitutionally protected status subject to wide range of due process protections

• Cannot be lost (except under rare circumstances)

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GENERAL RECRUITMENT ISSUES

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EMPLOYER HANDBOOK, M274



• Reviews anti-discrimination considerations

• Reviews common I-9 questions• Important resource for employer

responsiblities• http://www.uscis.gov/files/form/

m-274.pdf

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ANTIDISCRIMINATION



• Prevent discrimination based on citizenship, nationality, national origin, etc.

• Puts limits on questions that can be asked during interview/recruitment process

• Does NOT compel an employer to hire nonimmigrant

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I-9 EMPLOYMENT VERIFICATION



• Must be completed for all new hires, regardless of immigration status

• Needs to be completed within three days of employment start date

• Need to have a consistent policy and practice for I-9 completion

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J-1 PHYSICIAN RECRUITMENT

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J-1 PHYSICIAN RECRUITMENT



• J-1 Exchange Visitor Program• Two-year Home Residence Obligation• Basic Waiver Strategies:

i. North Dakota Department of Health ii. Department of Health and Human Services

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BASIC CHARACTERISTICS



• Temporary, nonimmigrant classification• Cold War creation• Purpose: to train and orient foreign elites for

leadership role in home country• Administered by U.S. Department of State• Covers various activities in United States (14 broad

categories)

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WHAT IS THE J-1 EXCHANGE VISITOR PROGRAM FOR PHYSICIANS?



• Authorizes Graduate Medical Education for up to seven years (longer for exceptional circumstances)

• Does not authorize:• Moonlighting• Employment (other than Training)

• Includes employment eligibility for spouse• Admitted by ECFMG

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FUNCTIONS OF ECFMG



• Verifying credentials of IMGs• Administering credentialing

examinations• Certifying IMGs for GME• Administering the J-1

Program

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TWO YEAR HOME RESIDENCE OBLIGATION



• Every J-1 clinical physician trainee is obligated to return for two years to the home country or country of last residence

• Home residence obligation means:• Ineligible for H-1B Visa• Ineligible for Permanent Residence

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IF A PHYSICIAN IS SUBJECT TO THE TWO-YEAR HOME RESIDENCE OLIBGATION:



• Return home for two years• J-1 Waiver• Visa status other than H-1B and/or permanent

residence (O-1, etc)• But does not relieve two year obligation

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WAYS A PHYSICIAN CAN OBTAIN A J-1 WAIVER



• Exceptional hardship to U.S. or LPR anchor relative (i.e., spouse and/or child)

• Persecution in home country• Sponsorship of Government Agency:• Direct employment (U.S. Military or VA hospital)• Outstanding research (HHS/NIH)• Federal agency (DRC, ARC, HHS)• State Department of Health (Conrad Waiver)

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INTERESTED GOVERNMENT AGENCIES (IGA) WAIVERS



• North Dakota Conrad Waiver• Department of Health and Human Services

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WHAT IS A CONRAD WAIVER?



• Congressionally-created waiver program administered by state departments of health

• Creates 30 waivers:• 10 waiver limit to non-designated worksites• Balance to designated underserved areas (HPSA & MUA)

• 3 year H-1B Employment Obligation with Sponsoring Employer (Retention)

• Needs to be Employer Sponsored

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NORTH DAKOTA CONRAD WAIVER PROGRAM



• Applications Open: October1• Very Community Oriented• Competitive for FLEX Waivers• More open for designated medically underserved

areas

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• Unique Feature: Is Administered as Administrative (not statutory) Function

• Central Value: Predictability and Stability

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• Program Administrator:• Gary Garland

Office for Elimination of Health Disparities 600 East Boulevard Avenue, Dept. 301 Bismarck, N.D. 58505-0200 Telephone: 701.328.2439 Fax: 701.328.1645

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NORTH DAKOTA WAIVERS: TRENDS & PATTERNS



• Average: 12-15/year• However, FLEX slots have filled up each year

• For 2011-2012: all FLEX slots have been used• For 2012-2013: 3 FLEX slots committed

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NORTH DAKOTA WAIVER PROGRAM



• Unique Feature: Can Reserve a Waiver Slot in Advance if There is a Specific, Bona Fide Candidate

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NORTH DAKOTA WAIVER PROGRAM



• Big State – Small State Views of the Program

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NORTH DAKOTA WAIVER PROGRAM: FILING FOR A WAIVER



1. Data Sheet DS 3035 2. Employment Contract3. Physician Attestation 4. IAP 66/DS-2019 5. Letter From Facility (indicates desire to hire the

physician) 6. Evidence of Shortage Designation Status 7. Personal Statement from Physician (related to

their reasons for not wishing to fulfill the two-year home country residence requirement to which the FMG agreed to at the time of acceptance of exchange visitor status)

8. Curriculum Vitae9. Certificate of North Dakota Licensure or letter

of eligibility from the North Dakota Board of Medical Examiners

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10. An Explanation for Out of Status (when applicable if they spent any period of time in other visa status, out of status, or outside of the U.S. )

11. Form G-28 (when applicable) 12. I-94 Entry and Departure Cards 13. No Objection Statement (when applicable)

Additional North Dakota requirements to be included as Appendices.

• Documentation of Recruitment Efforts • Retention Plan



ELEMENTS TO CONTRACT



• Three Year Period of Employment• Full-Time Employment• Adherence to to all J-1 Waiver Requirements • Coverage to Medicare, Medicaid, & Uninsured• 90 Day Rule• Statement of All Practice Sites

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OPEN ELEMENTS TO WAIVER CONTRACT IN NORTH DAKOTA



• Non-compete Clauses• Liquidated Damages

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HINTS FOR SUCCESS• File Immediately on October 1• Do Good Recruitment• Stress Contributions of Employer• Coverage Services to Public Aid, Uninsured, & Low

Income• Keep End in Mind: Program Intended to Expand

Safety-Net• Retention Program

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J-1 WAIVERS THROUGH U.S. DEPARTMENT OF HEALTH AND

HUMAN SERVICES

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HHS WAIVER PROGRAM

• Only Primary Care:• HPSA Score of 7 or Above

i. Section 330 Health Centerii. Rural Health Cliniciii. Native American Facility• Facility Needs to:

• Treat All Patients Regardeless of Ability to Pay• Accept Medicare, Medicaid, & S-Chip• Use Sliding Fee Scale

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WHO PAYS FOR J-1 WAIVER PROCESS?

Can be either Employer or J-1 Physician

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J-1 WAIVER STEPS

1. Case # from U.S. Department of State (DOS)2. File waiver with North Dakota Department of

Health3. North Dakota recommends to DOS4. DOS recommends to USCIS5. U.S. Citizenship & Immigration Service

(USCIS) issues final waiver approval

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H-1B PHYSICIAN RECRUITMENT

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H-1B STATUS



• Temporary, nonimmigrant visa classification for foreign professionals (Physicians and other professional positions)

• Up to six years (possibility exception to extend) • Requires employment (W-2) not Independent

Contractor or Partner

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H-1B NUMERICAL CAP• 65,000 numbers annually• Open October 1 (but can apply April 1)• Exemptions:

• Universities• Non-profit, affiliated with University• J-1 waiver Physicians• Concurrent Employment

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IMPORTANT NOTE:• J-1 Physicians with a Waiver are Exempt from H-

1B Quota• Can Get in H-1B Status Any Time of the Year

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H-1B REQUIREMENTS FOR IMGs



• M.D. and/or foreign medical degree• English language fluency

• ECFMG Certification• Graduate from accredited medical school (U.S. or Canadian)

• USMLE – Steps 1, 2, & 3• North Dakota State medical license

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STEPS IN THE H-1B PROCESS1. Prevailing Wage Determination2. Labor Condition Application – 7 business days3. File Petition with USCIS – 2-3 months

• Unless Premium Process - 15 days

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WAS H-1B PHYSICIAN PREVIOUSLY IN J-1 STATUS?



• Physician can only leave sponsoring employer if:• Extenuating circumstances,• Relocation to another medically underserved area, and,• New employer files H-1B petition

• If fulfilled three-year obligation can take new employment

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WHO PAYS FOR H-1B PROCESS?



• Employer required to pay attorneys fees + filing costs

• Cannot recoup from IMG either directly or indirectly

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PERMANENT RESIDENCE FOR PHYSICIANS

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WHAT IS PERMANENT RESIDENCE?• Legal status • Foreign national can live permanently in the

United States • Unrestricted employment authorization • Right to re-enter the United States following trips

abroad without obtaining U.S. visa

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OPTIONS FOR PERMANENT RESIDENCE

• Employment-based• Family-based• Miscellaneous: Asylum/Refugee, lottery, special

programs

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QUOTA SYSTEM IN ACTION:

• Worldwide quota: employment-based: 140,000 visas per year

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QUOTA ALLOCATION

• 5-tier allocation system: called “Preference System”

• 1st Preference: 40,000 visas• Aliens of Extraordinary Ability• Outstanding Professors & Researchers• Multinational Executives & Managers

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QUOTA ALLOCATION

• 2nd Preference: 40,000 visas• Advanced degree aliens

• Labor Certification Application• National Interest Waiver

• Basic category for physicians

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QUOTA ALLOCATION

• 3rd Preference: 40,000 visas• 3 sub-categories:

• Professionals• Skilled worker• Unskilled workers• Relevant to many allied healthcare

professionals (nurses)

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ROLE OF COUNTRY OF BIRTH

• Country of birth (not country of citizenship)• Per-country limit of 7% of preference category• Result: backlogs for India and China in 2nd

Preference• Basically, too many smart, educated people

chasing limited number of visas• No backlogs in 1st Preference (given restrictive

eligibility standards)

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EMPLOYMENT-BASED PATHWAYS TO PERMANENT RESIDENCE

• Employer-sponsored: Labor Certification Application (PERM)

• National Interest Waiver (NIW)• EB1, Priority Petition

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LABOR CERTIFICATION APPLICATION

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WHAT IS LABOR CERTIFICATION?

• Document that IMG is not taking a job away from a minimally qualified U.S. applicant • Includes Permanent Residents (i.e., Green Card)

• Mandatory recruitment conducted by employer

• Confirm that wages are at an acceptable (prevailing) level

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PROSPECTIVE JOB & MINIMUM REQUIREMENTS:

• Recruit for the job the IMG will hold when LPR is granted

• Can only use experience and qualifications the IMG held at beginning of employment

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STEPS IN THE PERM PROCESS:

1. Prevailing Wage Determination2. Employer Recruitment3. Reviewing applicants4. File the PERM with the U.S. Department of Labor

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PREVAILING WAGE DETERMINATION

• File with the U.S. Department of Labor• Must list every worksite, including sites where

IMG will round• Taking 60 days to obtain determination

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RECRUITMENT

• State of North Dakota Job Bank for 30 days• 2 Sunday newspaper ads, or 1 Sunday newspaper

ad and one journal print ad• Internal Posting Notice at each worksite & internal

media• 3 additional sources from list of 10 • Mandatory 30-day “cool down”

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10 ALLOWABLE RECRUITMENT OPTIONS• Job Fairs• Employer Web Site• Job Search Web Site• On-Campus Recruitment• Trade or Professional Organizations• Private Employment Firm• Employee Referral Program• Campus Placement Office• Local and Ethnic Newspaper• Radio and TV Advertisement

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REVIEWING APPLICANTS

• Timing: contact applicants in a “reasonable period”

• Manner of contact: phone & written • Do not discourage U.S. workers from applying:

can not say the job is filled or the recruitment is only for PERM purposes

• Consistent process with every applicant

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FILE THE PERM WITH U.S. DEPARTMENT OF LABOR

• Electronic Filing (ETA-9089)• Must maintain Audit File for five years from date

of filing• Taking 2-3 months for approval• If audited, taking around 1 year for approval

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NATIONAL INTEREST WAIVER

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NIW FOR PHYSICIANS

WHAT IS A NATIONAL INTEREST WAIVER?• Requires work in a federally designated

medically underserved area (HPSA & MUA)• Five year service obligation• Includes both primary and specialty Physicians• Physician can self-sponsor• Can count prior time working in HPSA/MUA

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STEPS IN THE NIW PROCESS:

1. Obtain “Public Interest” Attestation from North Dakota Department of Health

2. File NIW Petition to USCIS3. File Application for Permanent Residence

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IMMIGRATION IS A TOOL TO ATTRACT AND RETAIN PHYSICIANS:

• Develop a policy to promote sponsorship of Foreign Physicians

• Facilitate buy-in at all levels within your organization

• Foster integration into the community

94





QUESTIONS?

Robert D. AronsonAronson & Associates, P.A.1221 Nicollet Mall Suite 506Minneapolis, MN 55403Tel: 612-339-0517Fax: 612-349-6059 Web: aronsonimmigration.comEmail: [email protected]

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