Immigration Law Update

Help! We Need a Doctor: How an Antiquated and Dysfunctional Immigration System Jeopardizes U.S. Healthcare

By Tina R. Goel

Tina R. Goel represents clients across multiple industries, including healthcare, finance, real estate, technology, and higher education. She counsels healthcare entities and physicians regarding clinical and research waivers and advises employers and employees on nonimmigrant and immigrant petitions. Goel serves on the boards of the FBA’s Immigration Law Section and Younger Lawyers Division. In 2016, she received the ILS Younger Lawyer of the Year Award. ©2022 Tina R. Goel. All rights reserved. The U.S. healthcare workforce is short at least 20,000 physicians.1 Unfortunately, the situation is not likely to improve anytime soon. The Association of American Medical Colleges (AAMC) forecasts a total physician shortage of between 37,800 and 124,000 by 2034. The shortage developed over the past two decades and is caused by a mix of factors, including birth rates falling below mortality rates, resulting in an aging population with more complex healthcare needs. The physician workforce is aging alongside the greater population. Medical school enrollment rates doubled over previous years in the 1960s and 1970s2 but then remained flat up until 2021.3 Doctors who enrolled in medical school in the 1960s and 1970s have largely since retired, and the subsequent classes of doctors have not grown in proportion to the demand for care.4 According to American Medical Association (AMA) leaders, these trends mean the shortage is here to stay for a while.5

If the demand for physicians is increasing, what is the status of the supply, both domestic and foreign? Americans are not practicing medicine at the needed rate for a myriad of reasons, including the length of training and costs of medical school, along with the limited number of residency spots.6 Can the United States import physicians to alleviate the shortage? Perhaps. The AMA writes, “If immigration barriers for physicians are reduced, it will help to increase the number of physicians in the U.S. which will lead to healthier communities and ultimately a healthier country as access to much-needed medical care increases.”7 Physician immigration has undergone different phases in the last century, and today, foreign physicians have a limited ability to fill the shortage.

International medical graduates (IMGs),8 also known as foreign medical graduates, are 24.5 percent of active physicians,9 but their numbers are insufficient to bring quality care to all underserved areas of the United States, and there is an immigration chokehold on the physician pipeline. IMGs are not able to freely remain in the United States after completing their residency program and any applicable fellowships. Medical schools generally provide residency and fellowship training10 to IMGs through the exchange visitor J-1 program.11 In 1976, Congress was concerned that the physician shortage at the time had ended and that the immigration of IMGs needed to be more closely regulated,12 so it passed the Health Professions Educational Assistance Act of 1976.13 While the act attempted to encourage physicians to practice in rural areas, it also required J-1 trained IMGs to return to their country of citizenship or of last permanent residence before seeking a change of immigration status or permanent residence.14 What this means for IMGs who complete graduate medical education in the United States is that they must either return to their home country for an aggregate of two years, disrupting their careers and removing them from the U.S. physician workforce, or seek a waiver of the home residence requirement.15

IMGs have provided critical medical care to Americans for decades.16 These physicians—more than a quarter of all doctors practicing in the United States today—practice in medically underserved communities at far higher rates than their U.S.-trained peers.17 In areas with the highest poverty rates, in which annual per capita income is below $15,000, nearly half of all physicians are IMGs.18 The U.S. immigration system is set up so that these qualified and now-U.S. trained medical graduates need to find not only a community they want to serve after completing training but also a way to receive a waiver of this two-year home residence requirement.

The Immigration and Nationality Act provides a physician multiple paths to waive the two-year foreign residence requirement noted above, including under the following circumstances:

(1) The J-1 physician would be subject to persecution upon returning home. (2) The J-1 physician’s compliance with the requirement would cause exceptional hardship to their U.S. citizen or lawful permanent resident spouse or child. (3) A U.S. federal government agency has determined that the J-1 physician’s departure from the United States for two years would be detrimental to its interest. (4) A designated state public health department or its equivalent has determined that the J-1 physician’s clinical service in its jurisdiction is in the public interest.19

Clinical service waiver programs include those administered by the U.S. Department of Health and Human Services (HHS),20 state public health agencies (e.g., Conrad 30 program),21 and federal-state partnerships (e.g., through the Appalachian Regional Commission).22 While these programs provide a much-needed pathway for IMGs to secure a waiver and continue to provide medical services in shortage areas, they are not a magic bullet because of their adjudication times, limited geographical scope, cost, and prolonged uncertainty. This means that, despite these programs, the physician shortage is still growing.

In recent years, incremental efforts have been made to open new waiver programs, waive burdensome requirements, and expand the clinical scope of existing programs. For example, the Southeastern Crescent Regional Commission announced a new J-1 waiver program in summer 2022 that allows for the placement of eligible physicians in all of Florida and parts of six states (i.e., Virginia, North Carolina, South Carolina, Georgia, Alabama, and Mississippi).23 As of Oct. 1, 2022, the Delta Regional Authority, to further encourage physicians to practice in its jurisdiction, no longer requires a $3,000 application fee.24 Finally, in May 2020, HHS expanded its program so that not only Federally Qualified Health Centers and Rural Health Centers, but also hospitals and private practices, may seek to employ candidates through this program. While these incremental efforts are valuable to each patient a new waiver physician serves, they are insufficient to alleviate the severe shortage at hand.

First, the process of obtaining a clinical service waiver is daunting to employers and can be a significant financial commitment. While the complexity of the process varies among the health agencies and commissions, two players are static: the U.S. Department of State (DOS) and the U.S. Citizenship & Immigration Services (USCIS). If seeking a waiver in Maryland, for example, the prospective employer and candidate must first file a waiver support request with the Maryland Department of Health (MDH)25 while the candidate also files a waiver application with DOS. If the MDH determines that both the medical practice site and the candidate are eligible, and that using one of its scarce 30 waiver slots to support the employment of this candidate is in the interest of its population, the MDH will issue a favorable recommendation to DOS. If DOS concurs that granting the waiver application is, on balance, in the nation’s interest, it will forward the application to USCIS with a recommendation for approval.26 Once the waiver is settled, the employer must also petition the USCIS for this candidate as an H-1B worker. Both the waiver application and the H-1B petition must be approved in order for the physician to be authorized to work for the petitioning employer pursuant to the relevant program. As you might guess, the various parties must work together seamlessly to prevent missing statutory deadlines.

Each of the waiver programs has limitations outlined by statute and/or agency policy. Key limitations include the number of waivers that can be supported, geography, and substantive requirements regarding the type of physician candidate and/or the population they will serve. These limitations serve to prevent IMGs from adequately remedying the physician shortage.

The Conrad 30 program, for example, has strict numerical limitations. In 1994, the Conrad state clinical waiver program began with 20 waivers for each state to bring U.S.-trained physicians to rural locations.27 In 2002, Congress increased the program to permit 30 waivers per state; hence, the name “Conrad 30.”28 States are permitted to allocate up to 10 of their 30 slots to physicians who provide care to underserved patients, despite being located at facilities that are not located in Health Professional Shortage Areas or Medically Underserved Areas/Populations (“FLEX” slot). In fiscal years 2021 and 2020, about half of all Conrad waiver programs were filled to capacity—23 and 26 programs, respectively—and more than five programs granted at least 25 slots each year.29 This means that employers and U.S.-trained physicians were turned away by a number of Conrad programs due to statutory numerical limits. Some states assess applications and select the 30 most helpful to alleviate the shortages, but others turn to first-come, first-served or a lottery so that the program is administratively neutral, especially when the shortages are simultaneously severe in multiple locations within the state. In states where the Conrad waiver slots are exhausted each year, employers and candidates find this process unpredictable, a disincentive to submitting an application, and IMGs ultimately depart the United States because they are unable to stay without a waiver or a job. Patients lose the opportunity to access preventative care and then arrive in hospitals to receive care for conditions that could have been prevented at a lower cost to themselves and the healthcare system.

By contrast, the HHS program does not have a cap on the number of physicians it can support for a waiver, which makes it a boon for qualified employers and candidates. To obtain an HHS clinical service waiver, however, the IMG must provide full-time primary care clinical services in an underserved area. Primary care services include family medicine, general internal medicine, general pediatrics, obstetrics and gynecology, and general psychiatry. The Health Professional Shortage Area score of the relevant locality must be 07 or higher. The score is determined by the Health Resources and Services Administration. Another notable requirement is that the physician must commence employment pursuant to the waiver no more than 12 months after the completion of an eligible residency. Given the lack of statutory limits on the number of HHS waiver recommendations that may be issued, as long as the medical practice site and the candidate are eligible for the waiver, this is a more reliable pathway than the Conrad 30 waiver. However, candidates must begin preparing these applications well in advance of completing their residency programs to comply with the HHS upper time limit for the candidate to start employment pursuant to the J-1 waiver.30 In addition, this waiver does not alleviate specialist shortages in underserved rural areas.

Ultimately, the categorical two-year home residence requirement hampers the ability of U.S.-trained physicians to provide quality care where it is needed most. Still, these programs are widely popular, and expanding them represents a rare opportunity for bipartisanship. Thirteen Republicans and 11 Democrats in the current Congress—from Sen. John Cornyn, R-Texas, to Sen. Elizabeth Warren,

D-Mass.—have joined to co-sponsor the proposed Conrad State 30 and Physician Access Reauthorization Act.31 If we are to seriously address the existing physician shortage, which continues to grow, we must remove the roadblocks (e.g., categorical two-year home residence requirement, numerical limits on Conrad state programs, and limited eligibility for specialists) to retaining the talented physicians who wish to care for the underserved in the United States. 

Endnotes

1Health Resources & Services Administration, Health Workforce Shortage Areas, https://data.hrsa.gov/topics/health-workforce/ shortage-areas (last updated Oct. 10, 2022). 2Edward Salsberg & Atul Grover, Physician Workforce Shortages: Implications and Issues for Academic Health Centers and Policymakers, 81 Acad. Med., no. 9, Sept. 2006, at 782, 787, https://journals.lww. com/academicmedicine/fulltext/2006/09000/physician_workforce_ shortages__implications_and.3.aspx. 3Patrick Boyle, Medical School Applicants and Enrollments Hit Record Highs; Underrepresented Minorities Lead the Surge, Ass’n Am. Med. Coll. (Dec. 8, 2021), https://www.aamc.org/news-insights/medical-school-applicants-and-enrollments-hit-record-highs-underrepresented-minorities-lead-surge. 4IHS Markit Ltd, The Complexities of Physician Supply and Demand: Projections From 2019 to 2034, Ass’n Am. Med. Coll. (2021), https://www.aamc.org/media/54681/download. 5Andis Robeznieks, Doctor Shortages Are Here—and They’ll Get Worse if We Don’t Act Fast, Am. Med. Ass’n (April 13, 2022), https://www. ama-assn.org/practice-management/sustainability/doctor-shortages-are-here-and-they-ll-get-worse-if-we-don-t-act/. 6See, e.g., Derek Thompon, Why America Has So Few Doctors, Atlantic (Feb. 14, 2022), https://www.theatlantic.com/ideas/ archive/2022/02/why-does-the-us-make-it-so-hard-to-be-a-doctor/622065/. 7Statement of the American Medical Association to the U.S. Senate Subcommittee on Immigration, Citizenship, and Border Safety, Am. Med. Ass’n (Sept. 14, 2022), at 2, https://searchlf.ama-assn.org/ letter/documentDownload?uri=%2Funstructured%2Fbinary%2Fletter%2FLETTERS%2Flfdr.zip%2F2022-9-13-AMA-Statementfor-the-Record-on-Senate-IMG-v2.pdf. 8National Resident Matching Program, The Match Terms and Topics, https://www.nrmp.org/intro-to-the-match/the-match-terms-andtopics/ (last visited Oct. 11, 2022). 9Active Physicians Who Are International Medical Graduates (IMGs) by Specialty, 2017, Ass’n of Am. Med. Coll., https://www.aamc. org/data-reports/workforce/interactive-data/active-physicianswho-are-international-medical-graduates-imgs-specialty-2017 (last visited Oct. 11, 2022). 10Exchange Visitor Sponsorship Program (EVSP): About EVSP, Educ. Comm’n Foreign Med. Graduates (last updated Mar. 17, 2021), https://www.ecfmg.org/evsp/about.html. 11Immigration and Nationality Act (INA) § 101(a)(15)(J), 8 U.S.C. § 1101(a)(15)(J). See also 8 C.F.R. § 214.2(j), 22 C.F.R. § 62; cf. https://j1visa.state.gov/. 12John J. Greene, The Health Professions Educational Assistance Act of 1976: A New Prescription? 5 Fordham Urb. L.J. 279 (1977), https:// ir.lawnet.fordham.edu/ulj/vol5/iss2/4. 13Health Professions Educational Assistance Act of 1976, 90 STAT. 2300, Pub. L. No. 94-484 (1976), https://www.congress.gov/94/ statute/STATUTE-90/STATUTE-90-Pg2243.pdf. 14Id. 15INA § 212(e). 16 John J. Greene, The Health Professions Educational Assistance Act of 1976: A New Prescription? 5 Fordham Urb. L.J. 279 (1977), https:// ir.lawnet.fordham.edu/ulj/vol5/iss2/4. 17Statement of the American Medical Association to the U.S. Senate Subcommittee on Immigration, Citizenship, and Border Safety, Am. Med. Ass’n (Sept. 14, 2022), at 5, https://searchlf.ama-assn.org/ letter/documentDownload?uri=%2Funstructured%2Fbinary%2Fletter%2FLETTERS%2Flfdr.zip%2F2022-9-13-AMA-Statementfor-the-Record-on-Senate-IMG-v2.pdf. 18Foreign-Trained Doctors are Critical to Serving Many U.S. Communities, Am. Immigr. Council (Jan. 2018), https://www. americanimmigrationcouncil.org/sites/default/files/research/ foreign-trained_doctors_are_critical_to_serving_many_us_ communities.pdf at 9-10. 19INA § 212(e). See also FAQs: Waiver of the Exchange Visitor TwoYear Home-Country Physical Presence Requirement, U.S. Dep’t of State, Bureau of Consular Affs, https://travel.state.gov/content/ travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor/ exchange-waiver-faqs.html (last visited Oct. 10, 2022). 20HHS Exchange Visitor Program, U.S. Dep’t Health Human Serv. https://www.hhs.gov/about/agencies/oga/about-oga/what-we-do/ exchange-visitor-program/index.html (last updated June 3, 2020). 21E.g., J-1 Visa Waiver Program, Md. Dep’t Health, https://health. maryland.gov/pophealth/Pages/J-1-Visa-Waiver-Program.aspx (last visited Oct. 11, 2022). 22J-1 Visa Waivers, Appalachian Reg’l Comm’n, https://www.arc. gov/j-1-visa-waivers/ (last visited Oct. 10, 2022). 23J-1 Visa Waiver Program: Guidelines, Se. Crescent Reg’l Comm’n, https://scrc.gov/wp-content/uploads/2022/09/ Southeast-Crescent-Regional-Commission-J-1-Guidelines.pdf (last visited Oct. 11, 2022). 24Delta Doctors, Delta Reg’l Auth. https://dra.gov/initiatives/ promoting-a-healthy-delta/delta-doctors-how-to-apply/ (last visited Oct. 11, 2022). 25J-1 Visa Waiver Program, Md. Dep’t Health, https://health. maryland.gov/pophealth/Pages/J-1-Visa-Waiver-Program.aspx (last visited Oct. 11, 2022). 26See Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement, U.S. Dept. of State https://travel.state. gov/content/travel/en/us-visas/study/exchange/waiver-of-theexchange-visitor.html (last visited Oct. 11, 2022). 27Flatlining Care: Why Immigrants Are Crucial to Bolstering Our Health Care Workforce: Hearing Before the Subcomm. On Immigr., Citizenship, and Border Safety of the S. Comm. On the Judiciary, 117th Cong. 5 (Sept. 14, 2022) (statement of Sarah K. Peterson, Principal Attorney, SPS Immigration PLLC), https://www.judiciary.senate. gov/imo/media/doc/Testimony%20-%20Peterson%20-%20202209-14.pdf. 2821st Century Department of Justice Appropriations Authorization Act § 11018(a), Pub. L. No. 107-273 (2002), https://www.uspto.gov/ sites/default/files/web/trademarks/PL107_273.pdf. 29Data provided by 3RNet at https://www.3rnet.org/j1-filled (last accessed Oct. 11, 2022). Conrad Historical Totals – 2001 to Present, Table in Conrad 30 Slots Filled Data, 3RNET, https://

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