MISSISSIPPI STATE BOARD OF HEALTH ADOPTS IMPROVED CONRAD 30 AND NATIONAL INTEREST WAIVER PROVISIONS

On April 7, 2013, the Mississippi State Board of Health met and approved proposed revisions to the Mississippi Conrad 30 J-1 Waiver Program and Physician National Interest Waiver regulations.

These revisions were proposed after considerable lobbying efforts on the part of numerous Mississippi healthcare employers, that rely on the services of foreign medical graduates to provide medical services to shortage areas in Mississippi. The previous program requirements had proven to be very cumbersome, expensive and fraught with difficulty. The previous 6 month recruitment requirement often resulted in the loss of a prospective candidate. When employers did not have evidence of a national print media ad, appearing within the preceding 6 months, they would be required to place a national print ad, and then were required to wait 6 months to determine if any U.S. physicians responded to the ad, prior to filing the waiver application with MSDH. Foreign physicians seeking employment during the last year of their residency, could not be expected to wait 6 months while the prospective employer completed the recruitment requirements. Consequently, many promising J-1 waiver prospects were lost to Mississippi. A state that ranks 2d in the percentage of population living in a medical shortage area, cannot afford to lose good medical candidates.

For that reason, the recent improvements to the Conrad 30 program are to be welcomed. The new revisions are effective May 15, 2013, and the changes include:

• The recruitment period is reduced from 3 months to 6 months
• For FLEX candidates, the sponsoring facility must show that 30% of its patients come from a nearby HPSA shortage area. The state will require patient origin data
• Documentation of recruitment efforts are somewhat relaxed and evidence may now include:
• Regional and/or national print media ads
• Online ads
• Certified letters to medical schools
• The employer can provide any other evidence that shows recruitment
• There is no specific requirement for community support letters
• The regulations continue to require HIV and tuberculosis screening for the J-1 waiver applicant. Those physicians that test positive for TB must undergo a treatment program.

The Board of Health also approved a much needed change to the Physician National Interest Waiver regulations. Specifically, the regulations no longer contain a requirement that the foreign physician must have practiced in Mississippi for at least 2 years prior to applying for the statutorily required state support letter. The previous 2 year practice requirement essentially destroyed the usefulness of the NIW, because it prevented the NIW physician from applying for adjustment of status during the first 2 years of practice in Mississippi. This deprived physician spouses and family from receiving the work and travel authorization that Congress intended them to have when the NIW program was created in the Nursing Relief Act of 1999.

With the 2 year restriction no longer in place, NIW applicant physicians in Mississippi will be able to immediately obtain the benefits of the NIW, including work and travel benefits for their spouses and family members.

The NIW regulations include the same HIV and TB screening and treatment provisions as appear in the Conrad 30 program.

I applaud the staff of the Mississippi Department of Health, including Ms. Rozelia Harris, for drafting and presenting these revised regulations. These changes should aid the recruitment and retention of foreign medical graduates to medically underserved areas in Mississippi, and they clearly serve the public interest.

Conrad 30 and Physician Access Act of 2013 (S.616) Will Benefit Medically Underserved Communities in the United States

My practice is concentrated in the representation of foreign medical graduates (FMG’s), and the health care employers who rely on these physicians to help provide medical care to medically underserved communities throughout the United States. For the past several years, I have participated as a member of an advocacy team, promoting federal legislation which would remove some of the legal barriers and pitfalls which inhibit the recruitment, placement and retention of FMG’s to some of the neediest communities in our country.

 

On February 20 of this year I traveled to Washington and spoke with several Senate and House staff persons, for the purpose of promoting beneficial legislation. It is beginning to look like our efforts may be coming to fruition. On March 18, 2013, a bi-partisan group of Senators introduced S.616, the “Conrad 30 and Physician Access Act”. This proposed legislation contains several features which would improve the legal environment for FMG’s. The bill is budget neutral, i.e. it does not require any expenditure of money, and it enjoys bi-partisan support. The bills co-sponsors are, Sen. Amy Klobuchar (D. MN), Sen. Heidi Heidkamp (D. ND), Sen. Jerry Moran (R. KS), and Sen. Susan Collins (R. ME). The bills principal features are:

 

Removes sunset provision of Conrad 30 program, making it a permanent program. It is now scheduled to expire in 2015

 

Exempts National Interest Waiver physicians from the worldwide immigration quotas. This provision would encourage FMG’s to work for five years in an underserved area.

 

Employment Protection Provisions:

 

Would allow an FMG to leave an employer during the 3 year J-1 waiver obligation period, without demonstrating “extenuating circumstances”, merely by agreeing to serve an additional year of service.

 

Doctors whose employment is terminated would have 120 days to begin new employment in an underserved area before being considered out of status.

 

Increases Conrad 30 numbers: When at least 90% of states (not including states that approved less than 5 waivers) have exhausted the Conrad 30 slots in a given year, all states would be allotted 5 additional slots for the following year.

Academic Medical Centers will be granted 3 waivers per state. These are in addition to the Conrad 30 waivers.

 

J-1 Dual Intent: FMG’s who enter the US as J-1 exchange visitors, in order to undertake graduate medical training, would not be subject to Sec. 214(b), which requires nonimmigrants to prove that they are not intending immigrants.

 

Alternate Visa Status: During the Conrad 3 year service period, FMG’s would be permitted to hold statuses other than the H-1B.

 

National Interest Waiver provisions:

Clarifies that specialists are eligible for the physician national interest waiver.

Allows the NIW for “flex” locations, i.e. locations outside medical shortage areas, but in facilities that serve surrounding shortage areas.

 

I believe these provisions would help alleviate some of the legal impediments to the placement of foreign medical graduates in underserved areas.  We are urging all of our health care employer clients to contact their Senators and to urge support for Senate Bill 616, the “Conrad 30 and Physician Access Act”.

I-Squared Act is Bi-Partisan Effort to Improve Immigration of High-Technology Workers

In recent weeks, much has been reported in the media concerning comprehensive immigration reform. Many people tend to focus on the estimated 11 million undocumented persons in the United States.  But of equal importance to our economy and our international competitiveness is the need to improve and increase the immigration of highly skilled technology workers to the United States.

On January 29, 2013, a bi-partisan group of Senators introduced Senate Bill 169, the “Immigration Innovation Act of 2013 (I-Squared Act)” an important bill that would vastly reform and improve the immigration system for high-technology workers. For years, antiquated U.S. immigration law has impeded the natural migration of high-technology workers, many of whom have been educated in the United States. Many economists and some politicians, across the ideological spectrum, have advocated for increased and eased entry of foreign high-technology workers. Science, Technology, Engineering and Mathematics (STEM) workers help to propel and sustain technology innovation and development. Many foreign-born STEM workers are among the most successful U.S. entrepreneurs. In short, it is now widely recognized that foreign-born STEM workers do not displace U.S. workers, rather they help create and grow U.S. jobs.

The I-Squared Act would improve and increase numbers of both temporary (nonimmigrant) and permanent immigration to the United States.

 In the area of permanent (green card) immigration: I-Squared provides for the recapture and use of employment-based green cards that were not used in previous years; it would exempt dependents of employment-based green card recipients, U.S. STEM advance degree graduates,  persons of extraordinary ability, and outstanding professors and researchers from the 140,000 annual cap. The law would provide for the roll-over of unused employment-based green cards to the following fiscal year so as to avoid the need to recapture these in the future, and it would eliminate the annual per-country limits for employment-based green cards and raise per-country caps for family-based green cards.

In the area of H-1B (temporary high-skilled workers requiring at least a bachelor’s degree): The proposed I-Squared law would increase the H-1B annual numerical limitation from 65,000 to 115,000, and it would establish a market-based H-1B escalator, that would adjust up or down to the demands of the economy. The law would uncap the existing U.S. advanced degree cap exemption (there is currently a cap exemption for the first 20,000 U.S. advanced degree holders per year), and it would authorize employment for dependent spouses of H-1B visa holders.

I-Squared would also unburden F-1 foreign students by providing for “dual intent”, i.e. the intent to study temporarily in the U.S., while also pursuing lawful permanent immigration. The “un-abandoned residence” requirement has long hampered and discouraged foreign students who wish to enter the U.S. to study.

Based on our years of representation of high-tech workers and their employers, we instinctively know that there is an enormous amount of pent-up entrepreneurial and innovation energy that lies untapped within the high-skilled immigrant population in the U.S. If I-Squared is enacted, we believe this country will experience a palpable burst of economic and technological advancement. Let’s do more than keep our fingers crossed. We urge everyone to contact their congressmen and senators to urge passage of the bi-partisan “Immigration Innovation Act of 2013”.