Physician and Health Care Worker Update – COVID-19

The COVID-19 pandemic has increased attention on the vital role immigrants serve in the U.S. health care system. Thank you to all you health care heroes!

The immigration numbers in health care can be startling. The Cato Institute cites a survey which says that “while immigrants composed only 13.7 percent of the U.S. population in 2018, they were 35.2 percent of the home health care aides in America (224,325), 28.5 percent of physicians (281,127), 20.9 percent of nursing assistants (365,466), 18.9 percent of health care diagnosing or treating practitioners (2,840), 18.5 percent of clinical lab technicians (73,314), 15.2 percent of medical assistants (98,383), 15 percent of registered nurses (569,534), and 14.9 percent of health technicians (24,530). ” Another report says one in six U.S. health care workers is an immigrant. Other surveys report similar numbers.

Immigration law and policy is inherently restrictive. Health care workers and their employers must pay attention to all sorts of rules that the U.S. citizen worker never needs to think about. The pandemic shines a light on the need for updated immigration laws, especially as they pertain to noncitizen healthcare workers. For example, current regulations do not account adequately for telehealth services, working from home, and work-site mobility. We’ve been active advocating for many changes, designed to help under-served communities as well as foreign health care workers. Win-wins, as they say.

The good news is we’ve seen a few steps in the right direction over the past two weeks. There is still much, much more that can be done, and Congress is currently considering some important proposals. Here is the latest:

  • On the border: Cross-border commuters who are essential workers continue to be able to commute to work. In particular, U.S. Customs and Border Protection (CBP) permits health care workers in TN, H-1B, and other nonimmigrant statuses to enter, despite the border closure. Canada continues to have a 14 day quarantine, but makes exception for commuters.  The Ports of Entry are processing TN petitions, but added scrutiny should be anticipated. There is nothing routine about the border right now, and past visits which might’ve been approved may not be now. CBP continues to act as an enforcement agency, and they are still issuing expedited removals (five-year bans) during the pandemic. Due to the closure and the lack of border traffic, anyone seeking entry should expect more scrutiny, from multiple officers. We are available to discuss.
  • J-1 Waivers: The U.S. Department of Health and Human Services (HHS) expanded eligibility for J-1 waiver sponsorship for primary care clinicians for health care facilities in health professional shortage areas of 07 or higher. Formerly, the waiver was restricted to certain federally qualified facilities. The increased availability of the HHS waiver is a positive development for COVID-19 care, particularly in rural areas where there is often a shortage of primary care physicians. Foreign Medical Graduates (FMGs) who have entered in J-1 status must typically depart the country and fulfill a two-year foreign residency requirement, unless they can obtain a waiver. There are limited options for waivers, including the “Conrad 30 program” which allocates 30 spots per state per year. The expansion of the HHS program provides another option for primary care FMGs who would like to stay, to pair them with communities that are in need, particularly during this difficult time. HHS defines primary care as family medicine, general internal medicine, general pediatrics, obstetrics & gynecology; and also include general psychiatry.  The HHS waiver is not available to specialists, except under very limited circumstances.
  • USCIS on Telehealth and FMG J-1 Service: There are many things U.S. Citizenship and Immigration Service (USCIS) can do to free up noncitizens to provide essential health care services during the pandemic. The agency hasn’t rushed all in, despite the introduction of a long list of recommendations. The agency issued a memorandum last week that provides some good news to foreign medical graduates. USCIS says that if a foreign medical graduate is unable to work full-time due to the pandemic, USCIS officers are not to consider this a failure to fulfill the three-year full-time work requirement when adjudicating future applications (e.g. adjustment of status to permanent resident). Also, the agency will permit physicians who are fulfilling their three-year obligation to provide services via telehealth when applicable, with certain restrictions. It’s something, but frankly it is disappointing how little the agency has done so far to support the health care system in this time of need. It is no secret that the Administration sees immigration as a negative. In health care.

Congress needs to take action. There are a few bills which seem to be gaining traction, and which are of interest to foreign physicians, health care workers, and those who employ them:

  • The Healthcare Workforce Resilience Act (S. 3599) is a bill which creates 15,000 permanent resident spots for physicians and 25,000 spots for nurses. The numbers are allocated from past unused quota numbers. The spots are not subject to per-country limitations, which means many Indian and Chinese doctors and nurses stand to immediately overcome extremely long backlogs, which will encourage many to remain in the U.S. The bill has bi-partisan support from some heavy hitters on Capitol Hill, which is good. However, immigration bills always seem to struggle, and so we’ll have to wait and see. I’m hopeful.
  • The HEROES Act, which already passed in the House, has run into immediate opposition in the Senate. This major relief bill includes many immigration related provisions specific to essential health care workers. The bill calls for expediting immigration petitions on behalf of workers who may aid in the COVID-19 fight. Visa processing is prioritized for COVID-19 physicians and researchers. The bill also makes it easier for foreign health care professionals to move around and provide telehealth services, without first having to get permission from USCIS, which can sometimes take months. The bill includes temporary deportation relief for workers in essential critical infrastructure, including a broad range of needed health care professions. FMGs may be interested to know that the bill permanently reauthorizes the Conrad 30 J-1 physician waiver program, while expanding every state’s allocation to 35. The Conrad provisions even include elevator provisions for states that make heavy annual use of the program. Currently, some states get twice as many applications as there are available slots.
  • The “Conrad State 30 and Physician Reauthorization Act” (S. 948) was introduced prior to the pandemic, and continues to have support.  The bill provides incentives to foreign medical graduates to practice medicine in rural and medically underserved communities.

Advocacy can make a big difference. We are happy to work with physicians, nurses, and health care facilities to support these bills.

One final note: I expect we’ll see further restrictions from the White House on immigration in the near future, due to economic consequences of the pandemic and lockdowns. The President has said as much, and the last Proclamation suspending certain types of immigration suggested further actions are forthcoming. Some of the proposals we’ve seen for what’s ahead carve out exceptions for health care and other essential workers, as did the Proclamation. Nevertheless, the exceptions sometimes come with more red tape (e.g. prove a shortage; prove an essential need; prove extraordinary ability or national interest). As much as possible, we suggest petitioners get ahead of these anticipated restrictions, through early filings and comprehensive immigration planning.

As always, wishing everyone the best.