04/29/2013
DREAM ACT FOR FOREIGN PHYSICIANS?
Pederson Immigration Law Group, PC has been actively working to pass legislation to obtain immigration benefits for foreign medical graduates working as physicians for America’s medically underserved patients and war veterans at VA Hospitals. A bill was introduced in the United States Senate on March 12, 2013, the Conrad State 30 and Physician Access Act, S.616 by Senator Amy Klobuchar of Minnesota. It was co-sponsored by Senator Jerry Moran of Kansas, Senator Susan Collins of Maine and Senator Heidi Heitkamp from North Dakota.
We urge all our readers to email and fax their United States Senators and Congressperson and urge the Senators to co-sponsor and support S. 616 and to urge their Congressperson to introduce a companion bill in the House of Representatives with improvements. You do not have to be a voter or citizen to correspond with your Senators and Representatives. You may locate your Senators and Congressperson by going to: www.whoismyrepresenative.com and entering your zip code. Employers and physicians should email and fax letters urging support for this legislation. A personal story always helps to demonstrate your sincerity. Do not mail your letters as they often are delayed in the anthrax checks. Every voice counts.
The main provisions of the Senate bill, S. 616 (www.thomas.loc.gov) are as follows:
• The bill would make the Conrad State 30 program permanent. It has been a pilot program since 1994, requiring advocates to visit Congress every two years or so to obtain renewal.
• All physicians who have completed three years of service in a medically underserved area and their dependents, would qualify for the EB1 immigrant visa category, which has no backlog for any country at present.
o The main beneficiaries of this provisions would be India and China born physicians who are in the EB2 decade long waiting line for a green card. There would be no more waiting lines.
• Prohibits J-1 physician waiver employment contracts from containing non-compete clauses.
o Note: Non-compete clauses have historically been controversial; employers wanting them to protect their investment in recruiting and training physicians; and health departments, federal agencies and physicians disfavoring them as it requires the physician to leave town if they do not wish to remain with the waiver employer after the three year service commitment expires. In many situations, non-compete clauses are deal breakers.
• Provides for a one hundred twenty (120) grace period between H-1B jobs, which prevents physicians from falling out of status for 120 days, if a job change is required during the waiver commitment.
• H-1B Physician Cap Gap Protection. Physicians who complete residency/fellowship training in H-1B status in a year where all cap subject H-1B petition numbers have been used, and who have an H-1B petition approved to begin work on October 1 of the next fiscal year will have H-1B employment authorization during the cap gap period, thus preventing H-1B physicians from having to depart from the United States and delay employment by several months.
• J-2 spouses and children would not be subject to the two year home residence requirement.
o This will permit J-2 spouses and children to adjust status prior to the J-1 physician completing the three year service commitment.
o It would also permit J-2 dependents to remain in the United States in another status while the J-1 physician returns home for two years.
• Provides for an increase in State 30 waiver numbers up to 45 waivers per state if the elevator provisions are triggered.
o Note: Because the trigger point to increase the number of waiver slots is complicated and difficult to attain, it is believed that the elevator provisions will not likely be reached and thus the increases are unlikely to occur if the provisions are not tweaked.
• Provides for an additional three (3) waiver slots per state for use by academic medical centers.
o Note: We had requested an increase of ten (10) slots per state, but the final bill reduced the number to three (3) slots per year. It is hoped that a House bill will increase the number to ten (10). Nonetheless, even the three additional slots per state will result in an increase of 165 waivers slots per year nationwide.
o Our readers connected with academic medical centers should urge their universities to support this provision and obtain an increase in numbers.
• Provides that the J-1 waiver commitment may be completed in any visa status.
• NIW physician petitions, which provides a self-petition pathway to permanent residence for physicians who work for a total of five years in medically underserved areas or at VA hospitals, to include physicians who work under FLEX 10 waivers in non-underserved areas serving patients who reside in underserved areas to obtain NIW physician waivers and a Federal agency, or a local, county, regional, or State department of public health determines the alien physician's work was or will be in the public interest.
• Eliminates the requirement that physicians coming to the United states to take medical credentialing exams (USMLE) for medical training or to participate in gradual medical education to prove non-immigrant intent, thus eliminating 214(b) as a ground for denial of B-1 visas for the purpose stated and for J-1 and J-2 dependent visas .
o Note: Most denials of J-1 and J-2 visas are under Section 214(b) of the INA, causing career destruction or disruption to many physicians. This is a long overdue improvement in the nonimmigrant visa law to the benefit of foreign medical graduates and teaching hospitals.
This bill represents enormous improvements in the Conrad State 30 Waiver Program and we owe a debt of gratitude to Senator Klobuchar and the other sponsors of the bill.
However the hard work is just beginning. We need employers of foreign medical graduates and foreign medical graduates to partner and tell Congress you want and need this legislation.
Note that most of the above provisions were also introduced in the comprehensive immigration reform bill introduced in the United States Senate on April 16, 2013, “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744), referred to as CIR, with many other provisions benefitting J-1 physicians. These provisions will be summarized in a subsequent posting.
As always, Pederson Immigration Law Group, PC will continue its strong advocacy efforts of behalf of physicians and their employers as well as individual cases. Please contact: [email protected] if you can benefit from our total case solution approach, where you can always speak to a lawyer.
whoismyrepresenative.com
