The Physician Immigration Handbook

[The following is adapted from Greg Siskind’s new book, The Physician Immigration Handbook]

 

Conrad 30 Waivers for Working in Medically Underserved Areas

In 1994, the U.S. Congress enacted legislation permitting state health agencies to sponsor up to 20 physicians each year for J-1 waivers based on their commitment to work in medically underserved communities. In the years since, every state and several U.S. territories have created Conrad J-1 waiver programs. Before 1994, only federal agencies could act as interested government agencies (IGA) in sponsoring J-1 doctors for waivers.

Congress has revisited the Conrad program from time to time. It expanded the number of waiver slots granted to each state from 20 to 30. And it now allows states to designate up to 10 waivers per year for locations that are not actually designated as underserved but serve patients coming from underserved areas. Each state can determine its own rules for demonstrating whether underserved patients are being served, which is why these 10 waivers are called “flex slots.”

There are common requirements each state must include in its waiver program. However, there is also considerable room for states to add additional requirements, and the programs vary considerably. This chapter reviews the common requirements and also highlights some of the additional rules imposed by the states. The chapter includes a chart providing information on each state’s requirements.

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

There are only a handful of mandated requirements for State 30 programs. Most of the rules each state includes in their programs are decided by the particular state. Section 214(l) of the Immigration and Nationality Act (INA) sets out the requirements for the state programs, and they include only 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; and
• If the position is in a specialty, the employer documents the shortage of that type of specialist.

The U.S. Department of State requires state health departments to include the following items in a J-1 waiver recommendation request:

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, country 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:
4. The name and address of the health care facility.
5. A statement that the doctor agrees to begin employment with the employer within 90 days of receiving the waiver.
6. The specific geographical area or areas where the doctor will practice medicine.
7. A statement by the doctor that he or she agrees to meet the requirements set for in INA §214(l).
8. 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).
9. A full-time schedule (at least 40 hours per week) in the underserved area(s).
10. Proof that the location is an HHS-designated shortage area.
11. Copies of all Forms IAP-66 or DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.
12. A copy of the doctor’s curriculum vitae.
13. 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 shortages of medical professionals and has created two types of areas that qualify—Health Professional Shortage Areas (HPSAs) and Medically Underserved Areas (MUAs).

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

HPSA designation is granted to a geographic area, population group, or an individual facility. If primary-care designation is granted based on a geographic area, it is because the area has a physician to population ratio of 1:3,500 or worse. A population group with access barriers making it more difficult to find care may result in an area receiving a population group HPSA designation. In those cases, the shortage ratio is lessened to 1:3,000. For mental health areas, geographic designation is based on a ratio of 1:30,000. The threshold is lowered for population group designations to 1:20,000.

Individual facilities can 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 meet the needs of an area or population group. For mental health, facilities may be specially designated if they are prisons and jails, state and county mental health hospitals meeting specific inpatient and workload requirements, and community mental health centers and other public and nonprofit facilities deemed to have insufficient capacity to meet the psychiatric needs of the area or population group. All federally qualified health centers and rural health clinics that provide access to care regardless of ability to pay receive automatic facility HPSA designation.

HPSAs and MHPSAs are scored on a scale of 1 to 25 with the number rising based on the severity of the physician shortage. Some J-1 waiver programs will prioritize locations with higher HPSA scores.

MUAs may 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 are designated based on the Index of Medical Underservice, a system developed in 1976 that gives a 1 to 100 score to an area or population based on the ratio of primary-care physicians per 1,000 people, the infant mortality rate, the percentage of people with incomes below the poverty line, and the percentage of people age 65 or over.

MUAs and MUPs may provide a more accurate reflection of the needs of a particular area or population group, but they also are updated less frequently, so some states prioritize HPSA designations over MUA designations.

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

1. Timing

There are a number of differences between states regarding the timing of the submission and adjudication of waiver applications. The federal fiscal year runs from October 1 to September 30, so each state’s allotment of 30 waiver slots starts anew each year on October 1.

A few states will allow applications to be submitted before October 1. Texas, for example, has enough demand that the program is completely filled each September 1, when it opens and closes the same day. Some states will take applications on a rolling basis throughout the year. Others will accept applications only for a set period of time at the beginning of the fiscal year in October. And others allow certain types of applications to be filed at different times in the year (usually allowing primary-care positions first and specialists later). Some states also allow certain types of facilities to have the first opportunity to file for a waiver. Safety net sites in South Carolina, for example, can apply first for that state’s waivers.

There also are differences in when applications are adjudicated. Some states will review and decide applications as they are received. Others hold all applications until a specified period of time and make decisions then. A few states have more than one adjudication period during the fiscal year. Some processing times can vary from just a few weeks to several months.

2. Types of physicians accepted

While every state allows primary-care doctors, policies regarding accepting specialists vary considerably. Some states limit the number of specialists accepted. Alaska, for example, will take up to 10 specialists only. Some states will look at specialists on a case-by-case basis and may require additional documentation regarding the need. Some states will consider specialists only later in the fiscal year. A few states—Idaho and New Jersey, for example—limit their programs to primary-care doctors.

States also vary in how they define “primary care.” In general, family practice, internal medicine, pediatrics, and OB/GYN are considered primary care. Many states will list psychiatry (usually general psychiatry, but sometimes child/adolescent psychiatry). Some states include other fields, such as adolescent medicine, geriatrics, emergency medicine, hospitalists, infectious disease, general surgery, and even neurology and anesthesiology. Some states that accept specialists also limit the types of specialists accepted.

As noted above, each state can determine how it meets the federal requirement that there be a shortage of specialists in the location where the physician will be working. Many states simply require the same documentation of recruiting efforts as they do for primary-care doctors and require nothing further. Some states like Arizona and Tennessee, as well as Washington, D.C., either prioritize certain types of specialists or specifically limit specialist waiver slots to doctors in particular specialties. Some states have specific additional requirements to demonstrate a shortage of the particular specialty, including wait times to see a specialist, whether the specialist will accept Medicare and Medicaid, information on the population that will be served by the specialist, information on the particular needs of the community, and information on the number of specialists already in the community.

3. Subspecialty training

A few states restrict physicians seeking primary-care slots from having subspecialty training. The logic is that a physician with subspecialty training will eventually provide specialty medicine services instead of primary-care services.

4. Flex slots

As noted above, each state has the authority to reserve up to 10 waiver slots per year for employers not located in HHS-designated shortage areas, but who are serving patients coming from those areas. Most, but not all, states use their flex slots. When flex slots were first created, there was a limit of five per state and some states still limit their usage to five per year.

Some states have no specific policy on how they award their flex slots and will review each application’s on a case-by-case basis. Some states have minimum requirements regarding the percentage of patients that must live in underserved areas. For example, Arkansas requires 30 percent of its patients reside in shortage areas while Illinois requires 51 percent.

Some have special Medicare and Medicaid percentage requirements for flex slot applications. Others hold the slots until later in the fiscal year and will use them if their regular slots do not get claimed. Some states will reserve flex slots for particular facilities (such as academic medical centers or facilities in counties without federally qualified health centers). Some states that favor primary-care doctors may reserve flex slots for specialists. Note that obtaining detailed data documenting that patients are coming from underserved areas can be highly time consuming and potentially expensive. Employers and physicians should account for this when planning for the waiver process in states with such requirements.

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

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

A few states will limit applications to particular types of facilities. For example, some states will accept applications (or prioritize) applications only from rural facilities, safety-net providers, critical-access hospitals, federally qualified health centers, etc. 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. Several states also require a site be approved before an application for a J-1 waiver will be approved. This can sometimes delay the processing of the waiver application. And as noted above, states vary in terms of what types of shortage areas are acceptable. Some accept any HPSA, MHPSA, MUA, or MUP designation. Others are more limiting.

6. Fees

State J-1 waiver fees are more common today than in the past. 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 recruiting the physician. Depending on the particular state, these may be letters from:

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

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

All Conrad 30 applications will include an employer support letter. These letters will normally begin with a request that the state act as an IGA and then state the location or locations that will be served and note the shortage designation or flex waiver request; provide a description of the needs of the facility and the community (particularly for specialists); describe the proposed job duties for the J-1 doctor; list the prior recruiting efforts; discuss the physician’s qualifications; and note the impact on the community if the waiver application is not granted.

8. Contract provisions

While the core federal requirements mandate a three-year contract, some states add to this requirement by mandating that contracts include special provisions. Some states also bar certain types of contract provisions.

For example, several states bar “noncompetition” clauses that limit the ability of a physician to remain in a community and practice medicine in competition with an employer when the three years of service are completed. Note that unlike the rules applicable to federal programs, states have a choice in whether they bar noncompetition provisions or not. Federal programs must bar noncompetition clauses. Likewise, states may bar other restrictive covenants, such as prohibiting the contacting of the facility’s patients if the physician leaves.

Some states mandate “liquidated damages” clauses that require physicians to pay the employer a substantial payment if the physician leaves the community before the three-year service obligation is satisfied. Generally, the amount decreases as the doctor gets closer to the end of the contract, and the clause may not apply if a doctor moves to another shortage area within the state. An employer might actually have two liquidated damages provisions in an agreement—one that it normally would include and the other being the mandated liquidated damages clause required by a state.

States also may bar contracts that permit the employer or the doctor to terminate the agreement without cause.

9. Indigent and elderly patients

One difference between the rules for Conrad 30 programs and those governing the federal programs is in regard to Medicare and Medicaid. Federal agencies must require J-1 waiver applicants to provide services to Medicare and Medicaid patients. Most states, however, require J-1 doctors to serve these populations and many require employers to more broadly serve indigent populations. States typically 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 will prioritize applications received by facilities serving these populations.

10. Wages

J-1 physicians receiving waivers based on serving shortage areas serve out their three-year obligation in H-1B status. One of the requirements for the H-1B visa is that the employer pays the physician the prevailing wage for the particular location (more on this in Chapter 10). A few states require that documentation of the employer’s agreement to pay the prevailing wage be included with the J-1 waiver application. And Rhode Island has the additional requirement that the salary not be less than 90 percent of the mean salary for similarly employed physicians.

11. Languages

A few states prioritize applications from physicians with specific language skills. Arizona, for example, notes a preference for Spanish skills, and Massachusetts favors doctors who speak the language of patients being served at a particular location.

12. Recruiting

Every state requires some evidence of recruiting, but the rules vary considerably regarding what needs to be submitted. Requirements sometimes 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 reason the candidate was not hired;
• Recruiting from in-state or nearby medical schools;
• Postings at a facility regarding the position opening;
• 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. Scoring systems

At least one state—Florida—has an elaborate scoring system to prioritize applicants. Criteria that garner points for the application include a high HPSA score, being in a rural county, having strong community input in the application, being a safety-net hospital and having a high percentage of Medicare and Medicaid patients, being fluent in Spanish, and having an annual fixed base salary.

14. States with federal programs

A number of states have counties served by the Delta Regional Authority and Appalachian Regional Commission, both federal programs without limits on the number of waivers they issue. In order to maximize the number of waivers that can be granted in the state, some of these 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.

15. Limits on the number of applications

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

16. Credentials and Résumé

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

• Curriculum vitae;
• Proof of passage of U.S. Medical Licensing Examination (USMLE) Steps 1, 2 and 3;
• Documentation that the physician will qualify for a state license;
• Copy of the 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 the Form I-94, Arrival/Departure Record (either the one stapled in the passport, included on the I-797 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.

17. Local ties

A few states will favor physicians who received their residency training in the state or who have family in the area. The idea is that such ties make it more likely that the physician will remain in the state when the three-year service obligation is completed.

18. Medical exam

One state, Mississippi, has the unusual distinction of requiring J-1 waiver candidates to be tested for Human Immunodeficiency Virus (HIV) and tuberculosis within the six months prior to filing the application.

Can a physician self-petition for a Conrad waiver?

In theory, the answer is, yes. But it would be a much more difficult process. First, the state may have to be accommodating as far as its recruiting requirements, and the doctor may need to show that other entities have been recruiting unsuccessfully for the particular specialty. If the physician is seeking to work as an independent contractor for another entity, the other entity’s recruiting documentation may suffice. Also, the physician would need to create an employing entity in order to be able to sign an employment contract. At the H-1B stage of processing, the physician would be required to document that someone other than the physician has structured the corporate entity that will employ the physician to allow at least some control of the physician’s employment. This might be achieved by establishing an outside board of directors for the medical practice. Finally, the H-1B application will require the employer to demonstrate that it has the ability to pay the physician the prevailing wage. In this case, the physician might present an income guarantee agreement from a local hospital or a contract with a provider of medical services to demonstrate that there will be sufficient funding to support the position.

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

Yes. Physicians who have received funding to support from the home country government 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 securing J-1 waivers on the basis of a Conrad 30 waiver are exempt from the H-1B cap. Furthermore, upon concluding the physician’s three-year service obligation, the physician is in the desirable position of remaining cap-exempt and eligible to work for another employer that is outside a shortage area and otherwise ineligible for H-1B cap exemption.

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. In the early days of the Conrad 30 waiver program, it was not unheard of for a doctor to file a few applications simultaneously in order to improve the chances that a slot could be secured. That practice has been prohibited for many years.

However, it is possible to simultaneously pursue a hardship or persecution waiver at the same time as a shortage-area–based waiver. Physician should be extremely cautious about pursuing this strategy. The author is aware of more than one instance where a doctor secured the hardship waiver before the Conrad waiver and was contractually obligated to an employer but could not 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. A license is not required at the J-1 waiver application stage of processing, though most states will want to see that a physician is at least eligible for a license. A physician will want to begin the license application process as early as possible, however. That is because at the H-1B stage of processing, the physician will have to demonstrate that the license is in hand or at least filed, and the physician can get a letter from the licensing authority indicating that the license will be awarded upon visa issuance.

Which states typically run out of waiver numbers?

In fiscal year 2014, 17 states exhausted their waivers. The states that typically are 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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