Immigration Reform Developments for International Healthcare Workers

May 7, 2020

By Immigration Group

The COVID-19 pandemic has unquestionably revealed several deficiencies in the U.S. healthcare system, not the least of which is the immigration-based constraints placed on international physicians. Statistically, nearly 29 percent of all physicians in the United States are born abroad—many of whom require visa status based on their employment as physicians. Yet, our immigration laws present a labyrinth of barriers to optimizing their services to patients’ needs, including: the two-year home residence obligation; the rigidities of H-1B employment; and inordinate waiting periods before an international physician—particularly those from India—can attain permanent resident status.

What is particularly perplexing is that innumerable studies have identified that international physicians by-and-large provide beneficial “gap filling” services in addressing healthcare needs that are unaddressed by their U.S. counterparts, including that they disproportionately practice primary care medicine, fill positions in designated medically underserved areas, and serve minority, immigrant and impoverished populations that traditionally have been medically neglected. In addition, there is an expectation that within the next decade, the United States will conservatively experience a shortage of roughly 125,000 physicians required to meet minimal coverage standards.

We are starting to see some congressional initiatives intended to revise our immigration laws to address gaps in our nation’s medical system with international physicians, including getting them onto the front lines to treat patients suffering from the COVID-19 virus.

Within the Senate, a bipartisan bill spearheaded by Sen. David Perdue (R-LA) and Sen. Dick Durbin (D-IL) entitled the “Healthcare Work Force Resilience Act” is now in the process of being introduced. It has already received widespread support from the American Hospital Association and various other professional groups.

This bill represents a welcome initiative to increase the number of physicians serving the American public, although frankly, it has limited sweep and represents “baby steps” toward addressing the shortage in the nation’s physician workforce. The key provisions of this proposal include the following:

  • recapturing 40,000 unused immigrant visa numbers from previous years that will be dedicated to substantially reducing the current backlogs in the “green card” waiting lines for physicians and nurses;
  • allocating 25,000 immigrant visa numbers to nurses and 15,000 immigrant visa numbers to physicians waiting for final green card approval;
  • waiving the seven percent numerical per country annual limitation on green cards for qualifying physicians and nurses, which inordinately impacts Indian nationals, who are currently facing over a 10-year wait. The number of Indian physicians now in the immigration queue ranges between 13,000-20,000, so the numerical supplement should reduce this backlog substantially;
  • exempting the dependents of physicians and nurses from this new numerical allocation, meaning that the 40,000 immigrant visa numbers will flow directly to healthcare providers and that their dependents will not deplete these new green card numbers; and
  • mandating premium processing for permanent residence petitions for physicians and nurses. This means that adjudication times will be compulsorily sped up not only for immigrant visa petitions, but also for adjustment of status applications and immigrant visa applications through U.S. consulates abroad.

The House of Representatives is also purportedly considering reform legislation for international physicians, although no proposal has thus far been introduced. But the expectation is that the House version will be more expansive than the bill described above, such as:

  • an across-the-board increase in J-1 waiver numbers for each state under the Conrad State 30 Waiver Program;
  • expanding the Physician National Interest Waiver (PNIW) eligibility for physicians treating COVID-19 patient as well as for those working in positions carrying significant national benefits; and
  • removing PNIW cases entirely from the U.S. quota system, meaning that physicians would have immigrant visa numbers immediately available regardless of their country of origin, thereby eliminating substantial backlogs as was in past years.

For a bill to be passed into law, the Senate and House of Representatives need to agree on and pass a common legislative proposal that is then signed into law by the President. In short, there are several major steps needed before we will see any reform legislation of value to health care workers.

We applaud these efforts to streamline the permanent residence process for international physicians and nurses. But we also believe that Congress can take much bolder and more effective steps to truly create a system that will enhance access to physician services for Americans. Among the initiatives for achieving these national objectives would be:

  • creating a new MD visa to enable an international physician to come to the U.S. to undertake a medical residency or clinical fellowship and then require a five-year term serving medically underserved patients before attaining permanent residence;
  • in the absence of an MD visa, increasing the numerical ceiling of waivers provided to the states, mandating that the Department of Health and Human Services, a federal agency, expand its waiver program, and allowing the physician’s home country to issue “no objection” statements so as to waive the two-year home residence obligation;
  • allowing J-1 trainees the right to moonlight to the same extent as their U.S. counterparts;
  • providing employment flexibility, including changes in placement sites, hours, and medical specialization, to international physicians either directly or indirectly treating COVID-19 patients or patients suffering from other infectious diseases or medical conditions of high national concern;
  • creating a mandatory premium processing program for both nonimmigrant and immigrant visa petitions as well as in the entire administrative processing systems within both USCIS and the U.S. consulates abroad for international physicians;
  • enlarging PNIW eligibility for international physicians working in designated medically underserved areas to those treating patients suffering from diseases of national concern, such as COVID-19, other infectious diseases, and many pediatric disciplines; and
  • reforming state licensure provisions to enable qualified international physicians to more readily provide clinical care to COVID-19 patients as well as those suffering from other diseases of national concern.

The seeds are being planted and public sentiment is growing progressively more receptive regarding international healthcare workers—particularly physicians and nurses—as readily available and highly desirable providers of healthcare services in this era of national healthcare need. The current proposals being introduced in Congress are a welcome and necessary first step in unlocking the ability of international physicians to address the coronavirus pandemic. In the longer term, other initiatives are needed to enhance access to physicians for Americans in need.

COVID-19 Immigration Updates

Fredrikson & Byron’s COVID-19 Resource Center