Starting in 1976, international medical graduates ("IMGs") have been barred from obtaining many types of benefits under U.S. immigration laws even after they have completed medical residencies and fellowships in the U.S. Many of these restrictive laws remain on the books despite the tremendous need for various types of physicians across the U.S. The Department of Health and Human Services' listing of Health Professional Shortage Areas occupies nearly 100 pages of small print.

In 1991, this "Berlin Wall" of laws barring most IMGs from being sponsored by their employers to practice medicine in the United States began to crumble. With the aid of an increasing number of federal and state agencies, hundreds of hospitals, group practices and HMOs started sponsoring IMGs for both temporary working visas and permanent residence. In addition, many residency programs began to admit IMGs on temporary working ("H-1B") visas rather than exchange visitor ("J-1") visas. An H-1B visa allows an IMG freedom from the onerous requirement written into the 1976 law that IMGs on J-1 visas must return home for a minimum of two years after completing medical residencies and fellowships in the U.S.

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REQUIREMENTS FOR J WAIVERS

The law provides that the two-year residency requirement may be waived under the following circumstances:

1. If the IMG can demonstrate a "well-founded fear of persecution" if forced to return to his country;
2. If the IMG can prove that returning to his country would result in "exceptional hardship" to himself or to members of his immediate family who are U.S. citizens or permanent residents; or
3. If the IMG is sponsored by an "interested governmental agency".

TRADITIONAL SPONSORING AGENCIES

1. Department of Health and Human Services (HHS)

In determining whether to sponsor an IMG for a waiver, the Board considers the following key factors: (1) The program or activity in which the IMG is engaged must be "of high priority and of national or international significance in an area of interest" to HHS. Merely providing medical services in a medically underserved area is not sufficient; (2) The IMG must be an "integral" part of the program or activity "so that the loss of his/her services would necessitate discontinuance of the program, or a major phase of it"; and (3) The IMG "must possess outstanding qualifications, training and experience well beyond the usually expected accomplishments at the graduate, postgraduate, and residency levels, and must clearly demonstrate the capability to make original and significant contributions to the program".

In practice, HHS will only recommend waivers for IMGs engaged in research, not for those who treat patients. HHS waiver applications should be mailed to: Joyce E. Jones, Executive Secretary, Exchange Visitor Review Board, Room 627-H, Hubert H. Humphrey Building, Department of Health and Human Services, 200 Independence Avenue, S.W., Washington, D.C. 20201.

2. Veterans Administration (VA)

However, similar to HHS, the VA's latest guidelines (issued on June 22, 1994) provide that it will act as an interested government agency only where the loss of the IMG's services would necessitate the discontinuance of a program, or a major phase of it, and that recruitment efforts have failed to locate a U.S. physician to fill the position.

Can an IMG who wishes to be employed by the VA and an affiliated facility obtain VA-sponsorship for a J waiver? Yes, but only if he or she is employed at least 50% by the VA facility.

The procedure for obtaining VA sponsorship for a J waiver is as follows: (1) The IMG should deal directly with the Human Resources Department at the local VA facility; (2) The facility must request the VA's Chief Medical Director to sponsor the IMG for a waiver.

The waiver request should include the following documentation: (1) A letter from the Director of the local facility describing the program, the IMG's immigration status, the health care needs of the facility, and the facility's recruitment efforts; (2) Recruitment efforts including copies of all job advertisements run within the preceding year; and (3) Copies of the IMG's licenses, test results, board certifications, IAP-66 forms, etc.

The VA contact person in Washington, D.C., Brian McVeigh, should be contacted by the local medical facility rather than by IMGs and their attorneys.

3. The Appalachian Regional Commission (ARC)

ARC, in its February 1994 revision of its J waiver policies, requires that waiver requests be submitted initially to the ARC contact person in the state of intended employment. If the state concurs, a letter from the State's Governor recommending the waiver must be addressed to Jesse J. White, Jr., the Federal Co-Chairman of the ARC. Also included in the waiver request should be: (1) A letter from the facility to Mr. White stating the proposed dates of employment, the IMG's medical specialty, the address of the practice location, an assertion that the IMG will practice primary care for at least 40 hours per week in the HPSA, and details as to why the facility needs the services of the IMG; (2) J-1 Visa Data Sheet; (3) ARC Federal Co-Chairman's J-1 Visa Waiver Policy, and the J-1 Visa Waiver Policy Affidavit and Agreement with the notarized signature of the IMG; (4) A contract of at least two years duration; (5) Evidence of the IMG's qualifications including a resume, medical diplomas and licenses, and IAP-66 forms; and (6) Evidence of recruitment efforts within the preceding six months. Copies of advertisements, copies of resumes received and reasons for rejection must be included.

The ARC will not sponsor IMGs who have been out-of-status for six months or longer.

Requests for ARC waivers are processed in Washington, D.C. by Laura Dean Greathouse, ARC, 1666 Connecticut Avenue, N.W., Washington, D.C. 20235. Usually, ARC is able to forward a letter confirming that a waiver has been recommended to the USIA to the requesting facility or attorney within 30 days of the request.

NEW SPONSORING AGENCIES

1. The Department of Agriculture (USDA)

The USDA sponsors physicians who practice in the following areas: family medicine, general surgery, pediatrics, obstetrics and gynecology, emergency medicine, internal medicine and general psychiatry. The USDA will not sponsor a physician to practice in an area located within the jurisdiction of the ARC.

The USDA waiver program has been in a state of flux since late 1994. In November 1994, USDA suspended processing of new waiver requested while it considered the issuance of new guidelines.

Then, on April 5, 1995, the USDA issued new regulations regarding FMGs which became effective on May 1. These regulations substantially restricted the scope of the DOA waiver program. For example, in order for an area to be deemed "rural", the county in which the health care facility is located would have had to have a population of under 20,000 according to the last census. Also, the facility must be located in a HPSA. The IMG must sign a contract with a health care facility for a minimum period of three years. No IMG whose immigration status has lapsed for six months or more will be considered for sponsorship.

However, only a few weeks after the new guidelines became effective, USDA revised its policy once again. It scraped the restrictive definition of "rural", but retained many of the other requirements.

Since August 1994, USDA has required that each request for a waiver be supported by a letter of concurrence ("no objection") from the Department of Health in the state of intended employment. A few states (e.g., Georgia, Mississippi, New York and Ohio) require that the USDA waiver request and accompanying documentation be submitted directly to them. If they concur with the request, they forward the entire packet together with a no objection letter to USDA.

USDA waiver requests should be mailed to Linda Seckel, Program Manager, J-1 Visa Residency Waiver Program, Bldg. 005, Room 320, BARC-West, 10300 Baltimore Blvd., Beltsville, MD 20705-2350. Due to a moratorium which existed between November 1994 and April 1995, the current processing time is approximately four months.

2. State Departments of Public Health

An amendment to the Immigration and Nationality Technical Corrections Act of 1994 (INTCA) (Public Law No. 103-416) created a pilot program under which each state (plus Guam, Puerto Rico, Washington D.C. and the U.S. Virgin Islands) may sponsor up to 20 IMGs for J-1 waivers each year. The program applies only to IMGs who enter the U.S. in J-1 status prior to June 1, 2002.

To be eligible to participate in this program, an IMG must agree to be employed for a minimum of three years in a facility which is located in an area designated by HHS as having a shortage of health care professionals.

Unlike the federal programs which allow a physician to adjust status from J-1 to permanent resident, the state program reimposes the two-year foreign residency requirement on any physician who reneges on his contractual obligations. Typically, a physician sponsored by a state department of public health will change status from J-1 to H-1B for a period of three years before becoming a permanent resident.

The U.S. Information Agency (USIA) published interim regulations to implement this program on April 3, 1995. These regulations impose restrictions not contained in the law. For example, while the law requires only those physicians who are contractually obligated to return to their home countries for two years to obtain "no objection" letters from these foreign governments, the regulations require every IMG to obtain a "no objection" letter in order to apply for a waiver.

The new program has generated considerable interest among IMGs. Even in the absence of regulations from most states, a large volume of applications for waivers have been submitted to state departments of public health. This is understandable given that the first fiscal year of the law's operation will expire on September 30, 1995.

There is no application form for a state-sponsored J waiver. However, the USIA regulations specify that an application must include the following documents: (1) A letter from the State Department of Public Health identifying the physician and specifying that it would be in the public interest to grant him a J waiver; (2) An employment contract valid for a minimum of three years. The contract must state the name and address of the facility for which the physician will be employed and the geographic areas in which he will practice medicine; (3) Evidence that the these geographic areas are located within HPSAs; (4) A statement by the physician agreeing to the contractual requirements; (5) Copies of all IAP-66 forms; (6) Completed USIA Data Sheet; and (7) Each application must be numbered sequentially (since the number of physicians who may be granted waivers in a particular state is limited to 20 per year).

States may choose to participate, or not to participate, in this program. Participating states include Alabama, Alaska, Arkansas, Arizona, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Vermont and Washington. Undecided states include California, Connecticut, New Jersey, Virginia and Wyoming. Non-participating states include Hawaii, Idaho, Kansas, Louisiana, Montana, Oregon, South Dakota, Tennessee, Texas and Utah.

CANADIAN-TRAINED PHYSICIANS

Over 40 states accept passage of the Licentiate of the Medical Council of Canada examination (LMCC) for licensure. A Canadian physician who is licensed in the state of intended employment and who has passed both parts of the Federation Licensing Examinations (FLEX), or an equivalent examination as designated by the Secretary of HHS, is eligible to be petitioned for H-1B temporary working status. HHS has designated the following examinations as equivalent to the FLEX: (1) the National Board of Medical Examiners (NBME) examination, parts I, II and III; and (2) the United States Medical Licensing Examination (USMLE), parts I, II, and III. Of these three examinations, only the USMLE is currently being offered.

Canadian physicians who are licensed in the state of intended employment may apply to immigrate to the U.S. through employer sponsorship whether or not they have passed the FLEX, NBME or USMLE examinations. In a peculiar anomaly, many physicians who are eligible for both state licensure and permanent residence, are nonetheless barred from obtaining temporary H-1B status.

H-1B MEDICAL RESIDENTS

Upon completion of their residency programs, these physicians are able to obtain H-1B visas and permanent resident status through employer sponsorship. Other IMGs holding H-1B visas are able to immigrate to the U.S. through close relatives who are U.S. citizens or permanent residents.

In order to obtain H-1B status as a medical resident, an IMG must be in possession of a temporary state license, and have passed all parts of either the FLEX, the NBME, or the USMLE examinations. Most states will not allow medical residents to take USMLE, Part III until they have completed the first year of their residency programs. However, there are 11 states which permit persons to take USMLE, Part III prior to entering a residency program. IMGs interested in being sponsored for H-1B status must travel to one of these states to take and pass this examination before they may be sponsored for an H-1B visa.

CONCLUSION

While the best course of action for IMGs is to obtain H-1B visas to pursue their medical residencies, where IMGs have already been accorded J-1 status, opportunities to obtain waivers of the two- year foreign residency requirement may exist for those who are willing to make a commitment to perform primary care medicine in medically underserved areas.