State 20 Waivers For Physicians
State 20 Waivers For Physicians
Date: Wednesday, October 09, 2002 2:56 PM
************ H-1B NEWSLETTER *************
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Students that come to the United States on student visas (J-1) have to go
back to their home country in order to get an H-1B. Immigration Attorney
Karen Weinstock, who is a member of the American Immigrations Lawyers
Association (AILA), should be congratulated for the clever methods she uses
to exploit the loopholes in our laws. In typical AILA fashion she has
figured out multiple ways to dodge these requirements. In the tutorial below
she explains how medical students on J-1 visas can convert them to H-1B
visas without leaving the country.
After the loophole tutorial there is an article by Weinstock in the Atlanta
Journal. If you have ever wondered whether the same people that like H-1B
are the same ones that want open borders her statement should answer your
question: "Immigrants create more jobs for Americans than they take. Illegal
immigrants do the jobs that Americans simply refuse to do."
http://www.ilw.com/lawyers/colum_article/articles/2002,0711-crawford.shtm
The ABC's Of Immigration - State 20 Waivers For Physicians
by Kristi Crawford and Karen Weinstock
[Portions of this article have been written by SSHD attorneys Kristi
Crawford and Karen Weinstock. Also, portions are excerpted from the J-1 Visa
Guidebook published by LexisNexis and written by SSHD attorney Greg Siskind
and co-authors William Stock and Steve Yale-Loehr. The J-1 Visa Guidebook
can be purchased at the web site www.bender.com.]
Waiver of the Home Residency Requirement:
Physicians who entered the United States in J-1 status for the purpose of
obtaining graduate medical education (residency training) are subject to the
two-year home residency requirement as set forth in the Immigration and
Nationality Act Section 212(e)(iii). Thereby, this is also known as the
212(e) waiver.
Those seeking such a waiver are attempting to avoid the requirement that
they return to their home country before being eligible for further
immigration benefits. Particularly, Section 212(e) prohibits changing status
from J-1 to H-1B. Some will simply leave the United States at the conclusion
of their residency program and return to their home country; thereby, 212(e)
never becomes an issue. After spending the two years in their home country,
the requirement disappears and the individual can apply for a visa.
However, for those who desire to remain in the United States without
disrupting their careers, a waiver must be sought. The home residency
requirement must be dealt with before any further immigration benefits can
be obtained. This includes filing a request for changing status from J-1 to
H-1B or submitting an adjustment of status application for permanent
residence.
For physicians, a waiver of 212(e) can take the following forms:
Hardship waiver- evidence that compliance would result in exceptional
hardship to a U.S. citizen or permanent resident spouse or child. This
argument cannot take into account hardship suffered by the J-1 physician.
Persecution waiver- evidence that the alien will be subject to persecution
on account of race, religion, or political opinion if forced to return to
their home country.
Interested Government Agency- a request from a designated agency where that
agency has determined that such a waiver would be in the public interest.
A request from a State Department of Public Health to serve in a designated
health professional shortage area.
This article focuses on the fourth of these methods – the State waiver. In
the spring of 2002, the US Department of Agriculture announced the end of
its physician waiver program. Until that time, the USDA program was by far
the largest physician waiver program.
The current State 20 program actually sunset on May 31st of this year. Only
J-1s in the US on Now most physician waivers are issued by the states and
with the potential expansion of the program from 20 waivers per state to 30
waivers per state, these programs will become even more important.
Under the current Conrad State 20 Program, each state is permitted to
sponsor up to 20 doctors a year for J-1 home residency waivers. While there
are some basic common requirements for each program - physicians must work 3
years full time in health professional shortage areas - there are a number
of important variations between the different states.
States that do NOT have a state 20 program are Oklahoma, Idaho, Kansas,
Oregon and Wyoming; Montana has no program but is looking at the possibility
of sponsoring those who the USDA will not sponsor, and since the USDA has
cancelled its program, it may push Montana to issue waivers. The other five
states without programs are said to be considering resuming there programs.
Common Requirements
Under State Department regulations, a State waiver application must
originate in the designated state department of public health. The
application should include the following:
A letter from the director of the designated state department of public
health identifying the foreign physician, and a statement that it is in the
public interest that a waiver be granted;
An employment contract between the physician and the health care facility,
including the name and address of the specific health care facility and a
specific geographic area or area in which the physician will practice;
Proof that the areas of employment stipulated in the employment contract are
in HPSAs;
A statement by the physician agreeing to certain contractual requirements;
Copies of all IAP-66 (soon to be DS-2019) forms issued to the physician;
A completed data sheet; and
A sequential numbering of the application indicating how many waivers the
requesting state department of public health has successfully requested.
In addition, the foreign medical graduate’s home government send a no
objection letter to the Department of State if the doctor is contractually
obligated to return to his or her home country after completing medical
training. The no objection letter should clearly note that the request for
no objection letter was made pursuant to the statute that authorizes the
State 20 program.
The medical graduate must agree to begin employment within 90 days of
receiving the J-1 waiver, and must agree to work for at least three years at
a health care facility in the designated area, unless extenuating
circumstances exist. Upon the favorable recommendation of the DOS, the
Attorney General may grant the waiver and change the medical graduate’s
nonimmigrant status from J-1 to H-1B.
A person who has obtained a change of status under this provision and who
has failed to fulfill the terms of a contract with a health care facility is
not eligible to apply for an immigrant visa, for permanent residence, or for
a change of nonimmigrant status until he or she has satisfied the two-year
home residence requirement. The two year home residence requirement also
applies to a foreign medical graduate who otherwise is eligible for a waiver
under the State 20 program who practices medicine outside an HHS-designated
shortage area.
Variations
Many states that issue waivers require the doctor to work in “primary care”.
Most states have defined what primary care is and which practices will be
allowed (see below). States that do not define “primary care” include
Alaska, Colorado, Connecticut, Hawaii, Maine and Utah.
Most states will define “primary care” as family practice, general internal
medicine, pediatrics, obstetrics/gynecology and some will even include
psychiatry and general surgery. Below you will find each of the medical
practice areas, and a list of states that define that medical field as
primary care:
Family Practice – Alabama, Arizona, Delaware, District of Columbia, Florida,
Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, Washington, West
Virginia, Wisconsin.
General Internal Medicine – Alabama, Arizona, Delaware, District of
Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire,
New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania,
South Carolina, Tennessee, Vermont, Virginia, Washington, Wisconsin.
Pediatrics – Alabama, Arizona, Delaware, District of Columbia, Florida,
Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Massachusetts,
Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York,
North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina, Tennessee,
Vermont, Virginia, Washington, West Virginia, Wisconsin.
OB/GYN – Obstetrics/Gynecology – Alabama, Arizona, Delaware, District of
Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada (in rare
cases), New Hampshire, New Jersey (given priority), New Mexico (family
practice with OB), North Carolina (no ER placements at all), North Dakota
(obstetrics), Ohio, Pennsylvania, South Carolina (obstetrics), Tennessee,
Vermont, Virginia, Washington, West Virginia, Wisconsin (general
obstetrics).
Psychiatry – District of Columbia, Florida, Maryland, Missouri, North
Dakota, Ohio, Pennsylvania, South Carolina, Washington, West Virginia,
Wisconsin. The following states will allow psychiatry if the practice is in
a mental health shortage area (M-HPSA): Arizona, Georgia, Iowa,
Massachusetts, Minnesota, Virginia.
General Surgery – Indiana (will accept general surgeons on a case-by-case
basis, but priority for primary care physicians), South Carolina, Vermont,
Virginia (will accept general surgeons who practice 40 hour weeks), West
Virginia (combined med); Delaware will accept surgeons on a case-by-case
basis.
General Practice – Kentucky, Michigan, Mississippi.
Geriatrics – Alabama.
ER placements – Mississippi will allow only with full documentation of need.
Many states, such as Alabama, will not accept doctors with a specialty or
sub-specialty training, since that is not considered to be “primary care”.
However, some states have slots allocated for specialty doctors and others
will allow fellowship or specialty training as long as the physician works
in primary care or as long as the facility can document the need for
specialty.
The following states will accept doctors with specialty or sub-specialty
training if they work in primary care: Arizona, Florida, Georgia (physicians
with fellowship or sub-specialty training are not considered to be primary
care physicians, but they will be evaluated on a case-by-case basis), Maine,
Maryland (only allows fellowship training in geriatrics), Minnesota (a
fellowship training is allowed only if board eligible/board certified in one
of the primary care specialties. Neither the facility nor the physician may
offer the physician’s sub-specialty services), New York (subspecialties not
precluded; however, a waiver will be provided for practicing full time in
primary care).
The following states will accept doctors with specialty or fellowship
experience with documentation of need for the subspecialty in the service
area: Delaware, Kentucky (psychology, cardiology and surgery may be
considered after primary care determination if all 20 slots are not used),
Iowa (will allow general surgeons for rural hospitals; up to 6
sub-specialties with demonstration of need from employer), North Dakota
(will allow general surgery; will allow specialties under extreme
circumstances), Pennsylvania (subspecialties may be considered based on
need), Vermont (will accept exceptions on a case-by-case basis with
documentation of specific need in geographic area), Virginia (will accept
specialties, but if facility is a multi-specialty practice group, then
physicians with non-primary care specialist or fellowships are ineligible),
Washington (family practice or internal medicine subspecialties allowed,
also specialists in general surgery or radiology/diagnostic) and Wisconsin
(will not accept general surgeons, exceptions will be considered on
case-by-case basis with extraordinary circumstances).
The following states do not allow any fellowship or residency specialty
training: Alabama, Massachusetts, North Carolina, Ohio (those who have
either begun or completed subspecialty training are not eligible) and New
Mexico.
The following states allocate a number of slots each year for specialty
placements: Iowa (will allow up to 6 sub-specialties with demonstration of
need from employer), Mississippi (allocates four slots each year for
specialty placement; these are considered only in the latter six months of
the fiscal year), Missouri (reserves four slots per year for specialists,
but physicians without fellowship training are preferred), Washington
(reserves 15 slots per primary care physicians, 5 for subspecialties).
Many states have additional requirements that have to be met, and some of
them are quite extensive. Some states require the facility to obtain a state
approval prior to recruiting and others require a minimum of a four-year
contract. Others require that all other waiver programs must be attempted
first (though now that the USDA program has ended, the number of
alternatives is certainly down).
The following states require that the facility must be pre-approved by the
state prior to applying for the waiver: Louisiana, Missouri, Ohio,
Pennsylvania, Virginia, West Virginia (the site must submit letter of intent
before recruiting the physician).
The following states require a minimum of a four-year contract with the
physician (compared to the normal three year requirement): New Jersey, North
Carolina, Vermont, West Virginia.
There are various miscellaneous requirements that are worth noting:
Alabama will grant a waiver ONLY IF the physician attempted to use all other
IGA waiver programs first and the facility must have recruited at state
medical schools;
Arizona will give preference to physicians who speak Spanish or a language
significantly represented in the designated practice areas and requires that
the physicians must offer primary health care services on a sliding fee
scale
Illinois will only accept urban facilities as long as USDA is accepting
rural facilities, only 2 waivers per facility (however USDA has stopped its
program and Illinois is said to be considering changing this);
Iowa will place 10 urban, 10 rural;
Louisiana will give priority to J-1 applicants who do their residency in
Louisiana;
Mississippi requires that the site cannot be in ARC (Appalachian Regional
Commission) county and must be a full county HPSA, non-metropolitan
Statistical Area (MSA);
New Hampshire requires a doctor to have completed a “terminal primary care
specialty”;
New York requires that all other possible waiver avenues (ARC, USDA) must be
exhausted before applying to NY;
North Carolina will sponsor physicians on a case-by-case basis and requires
a minimum 550 score on TOEFL or 213 CBT, 50 on TSE-P;; also, the sponsor
must be in a community with less than 20,000 population;
Virginia requires job open notices to all medical schools in state and that
the physician has a VA license before applying,
Wisconsin requires that the physician have completed at least 1 year of
primary care residency and related subspecialty in the US.
About The Authors
Kristi L. Crawford is an associate in Siskind, Susser, Haas, & Devine’s
office in North Carolina's Research Triangle Park area. She graduated from
the University of Memphis, Cecil C. Humphrey’s School of Law in 1999 and is
a member of the Tennessee Bar. While attending the University of Memphis she
served as Editor-in-Chief of the law publication The Tennessee Journal of
Practice and Procedure. In 1995, Ms. Crawford graduated cum laude from St.
Mary’s College (Michigan) with dual degrees in English Literature and
Theology. Located near the biotechnology center of Research Triangle Park,
Ms. Crawford focuses her practice on serving the medical and professional
immigration specialty. She can be reached via email at
kcrawford@visalaw.com.
Karen Weinstock is a partner in Siskind, Susser, Haas & Devine’s new office
in Atlanta, Georgia. Karen graduated law school from Hebrew University
School of Law in Jerusalem, Israel and has a license to practice law both in
Israel and in New York State. She is also admitted to practice before the
United States Federal Court of the Southern and Eastern Districts of New
York. Karen is fluent in English, Hebrew and Arabic. She is a member of the
New York Bar Association and the American Immigration Lawyers Association.
Karen Weinstock worked at the Intellectual Property firm of Jacob & Hana
Calderon in Tel Aviv and later at Kramer-Shapira-Schneider in Jerusalem.
Immediately prior to joining Siskind, Susser, Haas & Devine, Karen had a
solo law practice in New York City, focusing on serving Israeli and
international clientele doing business or working in the U.S. Having
practiced corporate law, Karen can accommodate the special needs of
multinational corporations. Karen authors and is the editor of SSHD's
Visalaw Health Care Immigration Newsletter and also contributes to Siskind's
Immigration Bulletin, a newsletter with over 30,000 subscribers. Karen
authored a book on the H-1B visa that will be published this year. She can
be reached by e-mail at: kweinstock@visalaw.com.
Atlanta Journal-Constitution
September 24, 2002
Immigrants' contribution to economy can't be ignored
By Karen Weinstock
The notion that illegal immigrants are taking jobs from Americans is not
new, but it has become more common since Sept. 11 and since the economy
plunged into recession.
Many people think that illegal immigrants are here only to collect welfare.
These lines of thought are simply not true. Immigrants, both legal and
illegal, contribute to the economy. They do it by working and producing,
paying taxes, as well as by buying real estate, cars and other consumables.
Legal immigrants start businesses that contribute to economic growth and
actually employ Americans. Immigrants create more jobs for Americans than
they take. Illegal immigrants do the jobs that Americans simply refuse to
do.
A report titled "The Role Of Foreign-Born Workers In The U.S. Economy" by
Abraham T. Morisa, an economist in the Bureau of Labor Statistics, reveals
that the number of foreign-born workers has increased from one in 17 in 1960
to one in eight today.
Between 1996 and 2000, foreign-born workers constituted nearly half of the
net labor force increase, and more than 80 percent of the net labor force
increase among 35- to 44-year-old workers. In the same period, the
foreign-born labor force growth in the South Atlantic region accounted for
52 percent of the region's total labor force growth, and more than 78
percent in Florida.
This was, of course, at a time when unemployment rates were extremely low,
and American employers needed personnel in a tight labor market. Despite the
recent economic downturn, unemployment is still at a historically low level
and employers still cannot find sufficient workers in many industries such
as the housing, retail and service sectors. If all of the illegal immigrants
were removed from the United States, millions of jobs would simply be
unfilled in the economy even if all Americans looking for work got jobs.
A point often neglected by anti-immigration advocates is that illegal
immigrants cannot receive welfare, unemployment or most other types of
public assistance. That is in spite of the fact that they pay employment
taxes and Social Security taxes. Anti-immigration advocates also fail to
point out that immigrants pay billions in taxes from which they are barred
from benefiting.
For example, in the Social Security Administration alone, $4.9 billion is
received annually from no-match numbers, meaning people who work under false
numbers. That money cannot be drawn by those who contribute it.
In addition, nearly 43 percent of all job openings by 2010 will require only
a minimal education, at a time when native-born Americans are obtaining
college degrees in record numbers and are unlikely to accept positions
requiring minimal education. This is a great problem for the country -- what
to do when our workers are overqualified for low-end, low-paying jobs. The
solution again is immigration -- importing those necessary workers into the
country.
The immigrant population is also helping to solve the problem of replacing
baby boomers who are starting to retire and who require more workers to
replace them than are available in the native-born population.
A recent Business Week article discussed this problem and noted that a more
open attitude in the United States toward immigration probably would mean we
would fare better. The conclusion of its author, Stephen Baker, was that the
ability of societies to absorb foreigners could well determine which
economies will grow for the rest of this century and which will fade into
the twilight.
One of the key reasons why so many people are working illegally in this
country is because we do not have a real guest worker program. With such a
program, we could allow a flow of labor from Mexico and other countries into
the United States, and we could make the transition legal and painless.
We can ensure those who enter the United States are documented, get paid and
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