ABCs of Immigration: Conrad 30 Waivers for Working in Medically Underserved Areas

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Elissa Taub, The Physician Immigration Handbook.]

ABCs of Immigration: Conrad 30 Waivers for Working in Medically Underserved Areas

In 1994, the U.S Congress enacted legislation which allowed state health agencies the opportunity to sponsor a maximum of 20 physicians each year for J-1 waivers based on their commitment to work in communities that are underserved. In subsequent years, every state and a few U.S. territories have created Conrad J-1 waiver programs. Prior to 1994, federal agencies were the only entities that could act as interested government agencies (IGA) in sponsoring J-1 doctors for waivers.

From time to time, Congress has revisited the Conrad program, expanding the number of waiver slots for each state from 20 to 30. It even allots 10 waivers per year for locations not actually designated as underserved but that do actually serve patients from underserved areas. States are able to determine their own rules for demonstrating whether underserved patients are being served, which is why those 10 waivers are referred to as “flex slots.”

There are a number of requirements which each state must include in its waiver program, but there is also considerable room for subjective determination by the states to include additional requirements, which vary considerably.

What are the common requirements for Conrad 30 state health agency J-1 waivers?

Only a few mandated requirements exist for Conrad 30 programs. Most rules each state includes in their programs are decided by the state. Outlined within Section 214(l) of the Immigration and Nationality Act (INA) are the requirements for the state programs, including the following.

• The physician agrees to work for three years in the qualifying location;
• The physician agrees to begin work within 90 days of the waiver being granted by U.S. Citizenship and Immigration Services (USCIS);
• The physician agrees to serve in an underserved area or to serve patients residing in underserved areas;
• The offer is for full-time employment;
• The position is in a specialty, the employer documents the shortage of that type of specialist.

The U.S. Department of State requires inclusion by state health departments of the following items when requesting J-1 waiver recommendation:

1. A completed Form DS-3035, J-1 Visa Waiver Recommendation Application;
2. A letter from the director of the state department of health identifying the international medical graduate by name, county of nationality or country of last permanent residence, date of birth, and also stating that it is in the public interest that a waiver of the two-year home residency requirement be granted;
3. An employment contract between the doctor and the health care facility named in the waiver application that includes the following:

1. The name and address of the health care facility.
2. A statement that the doctor agrees to begin employment with the employer within 90 days of receiving the waiver.
3. The specific geographic area or areas where the doctor will practice medicine.
4. A statement by the doctor that he or she agrees to meet the requirement set for in INA §214(l).
5. A term of at least three years in a designated Health and Human Services (HHS) shortage area or in an area that serves patients residing in a shortage area (a flex slot).
6. A full-time schedule (at least 40 hours per week) in the underserved area(s).
7. Proof that the location is an HHS-designated shortage area.
8. Copies of all Forms IAP-66 or DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.
9. A copy of the doctor’s curriculum vitae.
10. If the doctor is otherwise contractually obligated to return to the home country, a copy of the statement of no objection from the doctor’s country of nationality or last residence.

What is an HHS-designated shortage area?

The U.S. Department of Health and Human Services’ Health Resources and Services Administration (HRSA) measures medical professional shortages and identified two types of areas which qualify, Health Professional Shortage Areas (HPSAs) and Medically Underserved Areas (MUAs).

HPSAs are specifically for primary care, dental, and mental health providers. In 2015, 6,100 designated primary care HPSAs were in the United States, and there were 4,000 mental health professional shortage areas. Though the supply of specialists is not actually measures, J-1 waiver rules use HPSA designation as a threshold requirement for those applications. Numerous states use the Mental Health Professional Shortage Areas (MHPSA) designation for psychiatrists, though many still consider them even if the area is exclusively designated as an HPSA.

HPSA designation can be granted to a geographic area, population group, or an individual facility. If primary-care designation is given based on geographic area, it is due to the area’s physician to population ratio being 1:3,500 or worse. If a population group has access barriers that make it more difficult to find care could result in an area receiving a population group HPSA designation. In such cases, the shortage ratio is reduced to 1:3,000. For mental health areas, geographic designation is based on a ratio of 1:30,000, and for population group designations, the threshold is lessened to 1:20,000.

Individual facilities are eligible to receive special HPSA designation. For primary-care designations, such facilities include prisons and jails and public and/or nonprofit medical facilities that provide primary-care services, and are deemed to have insufficient capacity to fulfil the needs of an area or population group. In the area of mental health, facilities can be specifically designated if they are prisons and jails, state and county mental health hospitals that meet certain impatient and workload requirements, and community mental health centers and other public and other public and nonprofit facilities that are considered to have inadequate capacity to meet the psychiatric needs of the area or population group. All federally qualified health centers and rural health clinics providing access to care regardless of ability to pay receive automatic facility HPSA designation.

HPSAs and MHSPAs are both scored on a scale of 1 to 25, with the score raising with the severity of the physician shortage, and some J-1 waiver programs will use this score to prioritize the locations that receive higher scores.

MUAs can be whole counties or a group of continuous counties, a group of county or civil divisions, or census tracts in a particular county. Medically Underserved Populations (MUPs) can include people who face economic, cultural, or linguistic barriers to health care. MUAs and MUPs care designated by using the Index of Medical Underservice, a system constructed in 1976 which attributes a score of 1 to 100 to areas or populations based on the ratio of primary care physicians per 1,000 individuals, the infant mortality rate, the percentage of people with incomes below the poverty line, and the percentage of people age 65 or older. Both MUAs and MUPs more accurately identify the needs of a particular area or population group, but they are also updated less frequently, causing some states to place greater importance on HPSA designations than MUA designations.

What are some of the differences between the various state health agency J-1 programs?

1. Timing

Numerous differences exist between states with regard to the timing of the submission and adjudication of waiver applications. The federal fiscal year runs from October 1 to September 30, therefore each state’s 30 waiver slot allotment begins anew each year on October 1.

Some states will permit the submission of applications prior to the October 1 start date. For example, Texas has enough of a demand that the program is completely filled each September 1m opening and closing on the same day. Some states take application son a rolling basis throughout the year, while others have a set period of time at the beginning of the fiscal year in October during which applications are accepted. Others opt to allow certain types of applications to be filed at different times during the year, usually permitting primary-care positions first and specialists later. Furthermore, some states allow certain types of facilities to have the first opportunity to file for a waiver. Safety net sites in South Carolina, for example, are able to apply first for the state’s waivers.

 

There are also differences in when applications are adjudicated. Some states review and decide applications as they receive them, while others hold all applications until a specified period, making decisions during that time. A few states have multiple adjudication periods during the fiscal year. Some processing times can vary from a few weeks to several months.

2. Types of physicians accepted

While all states permit primary-care doctors, there is wide variation in policies regarding the acceptance of specialists. Some states place limitations on the number of specialists accepted, with Alaska accepting only 10 specialists, for example. Some states assess specialists serially, on a case-by-case basis, possibly requiring additional documentation regarding the need. Some states only consider specialists later in the fiscal year, and a few states, Idaho and New Jersey specifically, limit their programs exclusively to primary-care doctors.

Each state’s definition of “primary-care” can also vary. Generally, family practice, internal medicine, pediatrics, and OB/GYN are all considered primary care. Psychiatry is listed by many states, usually as general psychiatry with some states listing child/adolescent psychiatry. Some states include other fields, such as adolescent medicine, geriatrics, emergency medicine, hospitalists, infectious disease, general surgery, and even sometimes neurology and anesthesiology. Some states accepting specialists also limit the types of specialists accepted.

Each state can decide how it meets the federal requirement that there be a shortage of specialists in the location in which the physician will be practicing. Many states require nothing more than the same documentation which is required of primary-care doctors and nothing more. Some states, such as Arizona and Tennessee, either prioritize certain types of specialists or expressly limit the specialist waiver slots to doctors in particular specialties. Some states hold specific additional requirements with the purpose of demonstrating a shortage of the particular specialty, including wait times to see a specialist, whether the specialist will accept Medicare and Medicaid, information about the population which is to be served by the specialist, information on the particular needs of the community, and information on the number of specialists already present in the community.

3. Subspecialty training

A few states have restrictions preventing physicians seeking primary-care slots from having subspecialty training. The logic behind these restrictions being that a physician with subspecialty training will eventually provide specialty medicine services instead of primary-care services.

4. Flex slots

As previously mentioned, states have the authority to reserve up to 10 waiver slots per year designated for employers not located in HHS-designated shortage areas, but who are serving patients who come from those areas. Most states utilize their flex slots, but some states limit their flex slot usage to five per year, which is the originally allotted number when flex slots were first created.

Some states do not have a specific policy governing how they award their flex slots and will review each application on a case by case basis. Some states do have minimum requirements regarding the percentage of patients required to live in underserved areas. Arkansas, for example, requires 30 percent of patients that must live within the shortage areas, while Illinois requires 51 percent.

Some states also have special Medicare and Medicaid percentage requirements for flex slot applications, while others hold the slots until further into the fiscal year and will utilize them if their regular slots fail to be claimed. Some states reserve flex slots for particular facilities, such as academic medical centers or facilities in counties without federally qualified health centers. Some states favoring primary-care doctors may reserve flex spots specifically for specialists. It is worth taking into consideration the amount of time that needs to be devoted to obtaining detailed data documenting that patients are coming from underserved areas, and employers and physicians living in states with such requirements should account for this when planning for the waiver process.

Additionally, some states will hold back adjudicating flex waivers until late in the fiscal year if they happen to have waiver slots available, and they may limit usage to certain specialties.

5. Types of facilities and locations that may apply for waivers

A few states will restrict applications to particular types of facilities, accepting, or at least prioritizing, applications only from rural facilities, safety-net providers, critical access hospitals, or federally qualified health centers to name a few. Some states specifically bar applications from certain types of facilities. Arizona, for example, will not consider physicians practicing in long-term care facilities, chronic-care facilities, or rehabilitation facilities. Additionally, a number of states require site approval prior to J-1 waiver application approval, which can sometimes delay the processing of the waiver application.  States can also vary in terms of what types of shortage areas deemed acceptable. Though some accept any HPSA, MHPSA, MUA, or MUP designation, others are more limiting.

6. Fees

State J-1 waiver fees are more prevalent than previously; at least 10 states now charge fees ranging from a few hundred dollars to several thousand.

7. Letters

Several states require one or more letters from individuals in the community which is recruiting the physician. Depending on the particular state, these can be letters from:

• Other physicians in the community attesting to the shortage;
• Primary-care physicians who intend to refer to the specialist;
• County and municipal health officials;
• Politicians; and
• Hospital officials.

Some states require recommendation letters on behalf of the physician, attesting to the qualifications of the physician.

Every Conrad 30 application will include an employer support letter. Generally, these letters begin by requesting that the state act as an IGA and then state the location or locations which will be served and note the shortage designation or flex location or flex waiver request; outlining the needs of the facility and the community (particularly for specialists); describing the proposed job duties for the J-1 doctor; listing the prior recruiting efforts; discussing the physician’s qualifications; and noting the impact on the community if the waiver application is not granted.

8. Contract provisions

Though the core federal requirements mandate a three-year contract, some states also mandate that contracts include special provisions. Additionally, some states bar certain types of contact provisions. For example, several states prohibit “noncompetition” clauses which limit the ability of a physician to remain in a community practicing medicine in competition with an employer when the three years of service are completed. Unlike the rules applicable to federal programs, which must bar noncompetition clauses, states have a choice in whether or not they bar noncompetition clauses. Likewise, states are capable of banning other restrictive covenants, such as prohibiting contacting the facility’s patients if the physician leaves.

Some states mandate “liquidated damages” clauses which require physicians to pay the employer a substantial payment in the event that the physician leaves the community prior to the completion of the three-year service obligation. Generally this amount decreases as the physician gets closer to the culmination of the contract, and the clause may not apply if a doctor moves to another shortage area within the state. It is possible for the employer to have two liquidated damages clauses within the agreement; one which it would normally include and the other being the mandated clause required by a state. States can also bar contracts which permit termination of the agreement without cause by either the employer or the physician.

9. Indigent and elderly patients

One main difference between the Conrad 30 programs’ rules and those governing the federal programs has to do with Medicare and Medicaid. Federal agencies must require J-1 waiver applicants to provide services to Medicare and Medicaid patients. In contrast, most states require J-1 doctors to serve these populations and many more broadly require employers to serve indigent populations. States generally require employers to post a sliding-fee scale or charitable-area policy and include a copy of this in the J-1 application. Many states place a higher priority on applications received by facilities serving these populations.

10. Wages

J-1 physicians who receive waivers based on serving shortage areas hold H-1B status while serving their three-year obligation. One H-1B visa requirement mandates that the employer pay the physician the prevailing wage for that particular location. A few states require documentation of this agreement to pay the prevailing wage be included with the J-1 waiver application, and Rhode Island has an additional requirement that the salary given not fall below 90 percent of the mean salary for similarly employed physicians.

11. Languages

Specific language skills of physicians can impact the priority states place upon their applications. For example, Arizona notes a preference for Spanish skills, while Massachusetts favors physicians who speak the language spoken by the patients who are served at a particular location.

12. Recruiting

Though the rules can widely vary regarding what specifically is required when submitting, all states require some form of evidence of recruiting. Requirements can include providing documentation of the following:

• A minimum number of months of recruiting (often set at six months);
• Advertising at the local, state, and national level in print and/or online;
• S. physicians interviewed and the rationale behind not hiring the candidate;
• Recruiting from in-state or nearby medical schools;
• Postings at a facility indicating the open position;
• Recruiter agreements;
• Mailings to residents/fellows in the area;
• Attendance at career fairs;
• Physician retention plans and needs assessments; and
• The salary being offered is competitive for the area.

13. States and federal programs

A number of states have counties that are served by the Delta Regional Authority and Appalachian Regional Commission. Neither of these federal programs have limits on the number of waivers which they can issue. With the purpose of maximizing the number of waivers that are capable of being granted in the state, a number of waiver programs, such as those in New York and Virginia, require an applicant to choose the federal waiver program for processing and will only accept an application if the applicant will not qualify under the federal program but will qualify under the state’s rules.

 

14. Limits on the number of applications

Some states treat every application independently, but other states limit the number of applications an employer may file in a given period of time or how many applications may be submitted by employers in a particular county. Some states have formal and informal rules allocating a specific number of waivers annually to particular high-priority employers in a state (often a major academic medical center or critical hospital).

15. Credentials and Résumé

Most states require that physicians include the following items in their applications:

• Curriculum vitae;
• Proof of passage of U.S. Medical Licensing Examination (USMLE) Steps 1, 2, and 3.
• Copy of medical diploma;
• Educational Commission on Foreign Medical Graduates (ECFMG) certificate;
• Graduate medical training certificates (if the program is completed), as well as board certifications (if available);
• Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status;
• Copies of Form I-94, Arrival/Departure Record (either the one stapled in the passport, included on the I-7979 approval notice, or printed from the U.S. Customs and Border Protection website);
• Copies of any I-797 Notice of Action approvals; and
• Copy of the passport.

16. Local ties

A small number of states will favor physicians who received their residency training in that state or who have family in the area. The reason for this is that such ties increase the likelihood that the physician will stay in the state upon completion of the three-year service obligation.

17. Medical exam

Mississippi carries the unique distinction of requiring J-1 waiver candidates to be tested for Human Immunodeficiency Virus (HIV) and tuberculosis within six months before filing the application.

Can a physician self-petition for a Conrad waiver?

Theoretically, yes, but it would be a much more difficult process. First, the state may have to accommodate more with regard to its recruiting requirements, and the physician may need to show that other entities have been unsuccessfully recruiting for the particular specialty. If the physician seeks employment as an independent contractor for another entity, that entity’s recruiting documentation may be sufficient. The physician would also need to create an employing entity in order to sign an employment contract. At the H-1B stage of processing, the physician would need documentation indicating that someone other than the physician has structured the corporate entity that will employ the physician to permit at least some control over the physician’s employment. This could be achieved through the establishment of an outside board of directors for the medical practice. Finally, the H-1B application requires the employer to demonstrate that it has the ability to compensate the physician with the prevailing wage. In such a case, the physician may present an income guarantee agreement from local hospital or a contract with a provider of medical services in order to demonstrate sufficient funding supporting the position exists.

Does it matter if a physician’s home country funded his or her waiver application?

Yes. Doctors who have received funding from the home country to support the physician’s medical training, or who are contractually obligated to return to the home country may need to seek a letter of no objection from the home country government.

Is the H-1B cap an issue in Conrad 30-based waivers?

No. Physicians who are securing J-1 waivers through a Conrad 30 waiver are exempt from the H-1B cap. Furthermore, upon the conclusion of the doctor’s three-year service obligation, they physician is in the desirable position of remaining cap-exempt and is eligible to work for another employer outside of a shortage area and otherwise ineligible for H-1B cap exemption.

Can a telemedicine position qualify for a shortage-area waiver?

Whether telemedicine services are being provided to physicians in an underserved area is inconsequential, a physician can only use a Conrad 30 waiver if he or she is physically working at an underserved location. The U.S. Department of State has made it clear that while it will not currently allow consideration of Flex waivers for telemedicine positions, it is planning on conferring with the U.S. Department of Health and Human Services and may revisit the policy.

Can more than one waiver be submitted at a time?

U.S. Department of State regulations prohibit more than one shortage-area-based waiver application from being filed at a time. Though it was not unheard of for a doctor to file a few applications simultaneously to improve chances for a secured slot in the early days of the Conrad 30 program, that practice has been prohibited for many years.

What is possible, however, is simultaneously pursuing a hardship or persecution waiver concurrently with a shortage-area-based waiver. This strategy should be employed with great caution. There are multiple instances of a doctor securing the hardship waiver before the Conrad waiver and subsequently was obligated to an employer contractually but was unable to obtain an H-1B visa because of the lack of H-1B cap exemption.

Is a state license required to obtain a Conrad 30-based waiver?

No. No license is required at the J-1 waiver stage of processing, but most states would still at least want to see that a physician is eligible for a license. It is in a physician’s best interest, however, to begin the license application process as soon as possible. This is because once at the H-1B stage of processing a physician will have to demonstrate that the license is in hand or at least files, and the physician can get a letter from the licensing authority which indicates the license will be awarded upon visa issuance.

Which states typically run out of waiver numbers?

17 states exhausted their waivers in the fiscal year 2014. The states which are typically the most competitive for waiver slots in a typical year are: Arizona, California, Florida, Illinois, Kentucky, Massachusetts, Michigan, Missouri, Pennsylvania, and Texas.

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