Immigration: Foreign Physicians and the J-1 Visa Waiver Program
Released: 2004-12-09T00:00:00

Introduction

International medical graduates (IMGs) are foreign nationals or U.S. citizens who graduate froma medical school outside of the United States. In 2002, the most recent year for which data areavailable, there were 853,187 practicing physicians in the United States. IMGs accounted for 24.7%(210,355) of these, and 27.4% (26,588) of physicians in residency and fellowship programs. (1) Theuse of foreign IMGs in many rural communities of the United States areas has allowed states toensure the availability of medical care to their residents.

This report focuses on those IMGs who are foreign nationals, hereafter referred to as foreign medical graduates (FMGs). Many FMGs first entered the United States to receive graduate medicaleducation and training as cultural exchange visitors through the J-1 cultural exchange program. Other ways for FMGs to enter the United States include other temporary visa programs as well aspermanent immigration avenues such as family- or employment-based immigration, the diversitylottery, and humanitarian relief provisions. (2) Thisreport focuses on FMGs entering through the J-1program.

J-1 Waiver Program

Many FMGs enter the United States under the current Educational and Cultural ExchangeVisitor Program on a J-1 nonimmigrant visa. (3) Nonimmigrants are admitted for a specific purposeand a temporary period of time. Most nonimmigrant visa categories are defined in ï¿½101(a)(15) ofthe Immigration and Nationality Act (INA). These visa categories are commonly referred to by theletter and numeral that denotes their subsection in ï¿½101(a)(15), e.g., B-2 tourists, E-2 treatyinvestors, F-1 foreign students, H-1B temporary professional workers, or J-1 cultural exchangeparticipants. (4) The J-1 visa includes nonimmigrantssuch as professors, students, au pairs, researchscholars, camp counselors, and foreign medical graduates.

Table 1 provides data on the number of physicians in residency programs as of August 2003. As the table indicates, J visa holders make up 15.8% of IMGs in residency programs.

Table 1. Citizenship/Visa Status of Physicians and International Medical Graduates in Residency Programs, August 1, 2003

Source: CRS presentation of data presented in S. Brotherton, P. Rockey, and S. Etzel, "U.S. Graduate Medical Education, 2003-2004," JAMA , vol. 292, no. 9, Sept. 1, 2004.

a. A J-2 nonimmigrant is the spouse or child of a J-1 nonimmigrant.

As exchange visitors, FMGs can remain in the United States on a J visa until the completion of their training, typically for a maximum of seven years. After that time, they are required to returnhome for at least two years before they can apply to change to another nonimmigrant status or legalpermanent resident (LPR) status. Under current law, a J-1 physician can receive a waiver of thetwo-year home residency requirement in several ways:

the waiver is requested by an interested government agency (IGA);

the FMG's return would cause extreme hardship to a U.S. citizen or LPRspouse or child; or

the FMG fears persecution in the home country based on race, religion, orpolitical opinion.

Most J-1 waiver requests are submitted by an IGA and forwarded to the Department of State for a recommendation. If the Department of State recommends the waiver, it is forwarded to U.S.Citizenship and Immigration Service (USCIS) in the Department of Homeland Security (DHS)forfinal approval. (5) Upon final approval by USCIS, thephysician's status is converted to that of anH-1B professional specialty worker, and the individual is counted against the annual H-1B cap of65,000. In instances where the H-1B cap has been met, the physician's J visa status may beextended, and the physician would be granted H-1B status in the following year.

Interested Government Agencies (IGAs)

An IGA may request a waiver of the two-year foreign residency requirement for an FMG by showing that his or her departure would be detrimental to a program or activity of official interestto the agency. In return for sponsorship, the FMG must submit a statement of "no objection" fromhis or her home country, have an offer of full-time employment, and agree to work in a healthprofessional shortage area or medically underserved area for at least three years. According toUSCIS regulations, the FMG must be in H-1B status while completing the three-year term and mustagree to begin work within 90 days of receipt of the waiver. If an FMG fails to fulfill the three-yearcommitment, he or she becomes subject to the two-year home residency requirement and may notapply for a change to another nonimmigrant, or LPR status until meeting that requirement. Althoughany federal government agency can act as an IGA, the main federal agencies that have been involvedin sponsoring FMGs are the Department of Veterans Affairs (VA), the Department of Health andHuman Services (HHS), the Appalachian Regional Commission (ARC), and the United StatesDepartment of Agriculture (USDA). (6) State healthdepartments may also act as IGAs.

Department of Veterans Affairs (VA). The Department of Veterans Affairs allows facility directors to request J-1 waivers in instances whereit is in the interest of the Department and its programs, and efforts to recruit a qualified U.S. citizenor LPR have failed. The facility director must supply documentation of recruitment efforts anddetailed information on applicants who did not qualify for the position. In order for the VA toconsider a waiver application, the applicant must submit copies of his or her medical license, visa,test results, proposed and current clinical privileges, references, curriculum vitae, and current addressand phone numbers. Once a waiver has been approved, the physician must serve for at least threeyears in a VA facility. The facility does not have to be in a designated shortage area.

Department of Health and Human Services (HHS). Historically, the Department of Health and Human Services had been veryrestrictive in its sponsorship of J-1 waiver requests. HHS emphasized that the exchange visitorprogram was a way to pass advanced medical knowledge to foreign countries, and that it should notbe used to address medical underservice in the United States. (7) HHS' position was that medicalunderservice should be addressed by programs such as the National Health Service Corps. Prior toDecember 2002, HHS only sponsored waivers for physicians or scientists involved in biomedicalresearch of national or international significance. In December 2002, HHS announced that it wouldbegin sponsoring J-1 waiver requests for primary care physicians and psychiatrists in order toincrease access to healthcare services for those in underserved areas. (8) HHS began accepting waiverapplications on June 12, 2003, but suspended its program shortly after for reevaluation. OnDecember 10, 2003, HHS released new program guidelines, which many maintain are morerestrictive and have limited the states' access to physicians.

Appalachian Regional Commission (ARC). Established by Congress in 1965, ARC is a joint federal and state entity charged with, among otherthings, ensuring that all residents of Appalachia have access to quality, affordable health care. Theregion covered by ARC consists of all of West Virginia and parts of Alabama, Georgia, Kentucky,Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee,and Virginia.

ARC submits a request for a waiver at the request of a state in its jurisdiction. The waiver must be recommended by the governor of the sponsoring state. In return, the FMG must agree to provideprimary care for at least 40 hours a week for three years at a health professional shortage area facility. The facility must be a Medicare or Medicaid-certified hospital or clinic that also accepts medicallyindigent patients. The facility must prove that it has made a good faith effort to recruit a U.S.physician in the six months preceding the waiver application, and the J-1 physician may not havebeen out of status for more than six months after receiving the J-1 visa. In addition, the physicianmust be licensed by the state in which he or she will be practicing, and must have completed aresidency in family medicine, general pediatrics, obstetrics, general internal medicine, generalsurgery, or psychiatry. The physician must sign an agreement stating that he or she will comply withthe terms and conditions of the waiver, and will pay the employer $250,000 if he or she does notpractice in the designated facility for three years.

United States Department of Agriculture (USDA). To help medically underserved rural areas, USDA became a participant in the J-1 waiver programin 1994. It ceased its participation in 2002. While participating in the J-1 waiver program, USDAsponsored over 3,000 waivers for J-1 physicians. As a participant it required that all applicationssubmitted be initiated by a health care facility or state department of health. To qualify for aUSDA-sponsored waiver, the physician was required to have an employment offer of no less thanthree years from a health care facility in a designated medically underserved rural area, and wasrequired to work at least 40 hours a week as a primary care physician.

Following the September 11, 2001 terrorist attacks, the USDA Office of the Inspector General recommended that USDA review its participation in the J-1 waiver program. On September 26,2001, the processing of waiver applications was suspended pending the outcome of the review. Asa part of this review, USDA forwarded seven pending applications to the Department of State forscreening. Three of the applicants turned up on government watch lists. On February 28, 2002, USDA officially announced it would no longer participate in the J-1 visa waiver program citingsecurity concerns and the inability to conduct adequate background and site checks. (9)

In March 2002, the USDA returned 86 waiver applications to 25 states. (10) On April 16, 2002,USDA announced it would act as a temporary IGA to process the 86 pending waiver applicationsit had returned and ceased its participation in the program.

"Conrad 20" Program for States. In 1994, Congress established a J-1 visa waiver provision commonly referred to as the "Conrad 20" programafter its sponsor Senator Kent Conrad. Under this program, participating states were allowed tosponsor up to 20 waiver applications annually.

In 2001, 45 states and the District of Columbia participated in "Conrad 20" programs. Of the states participating in "Conrad 20" programs at the time, 22 sponsored specialists in addition toprimary care physicians. (11) Administration of theprogram varied by state, with three states chargingapplication fees and one state requiring a commitment of at least four years. In addition to meetingthe general requirements for medical licensing in the United States, participants were also requiredto meet state-specified licensing criteria before beginning work.

Recent Developments

HHS Policy Change. On December 17, 2002,HHS announced it would be broadening its J-1 waiver program. HHS would assume the former roleof USDA by acting as an IGA sponsor for waivers for primary care physicians and psychiatrists. These physicians would be required to practice in designated shortage areas for a minimum of threeyears in return for HHS sponsorship. Eligibility to apply for HHS wavier requests is limited toprimary care physicians and general psychiatrists who have completed their primary care orpsychiatric residency training programs no more than 12 months prior to the commencement ofemployment. (12) This eligibility limitation wasinstituted to ensure that the physicians' training iscurrent and that they are not engaged in sub-specialty care.

Under the new program, HHS also allows physicians who have departed from the United States to apply for waivers while abroad. This must be done within the 12-month period following thecompletion of their residency training program. Other requirements include the following: astatement from the applicant that he or she does not have pending and will not submit other IGArequests while HHS processes the waiver request; the head of the petitioning facility must confirmthat the facility is located in a designated shortage area; and the employment contract must requirethe physician to practice a specific primary care discipline for a minimum of three years for 40 hoursa week. (13)

On June 12, 2003, HHS began accepting applications for J-1 waivers, for primary care physicians to practice in Health Professional Shortage Areas (HPSA) or Medically UnderservedAreas (MUA). (14) However, on December 10,2003, HHS issued more restrictive guidelines, requiringphysicians to work in either Federally Qualified Health Centers, Rural Health Clinics or IndianHealth Service Clinics. In addition to these requirements, the clinics had to be in areas with HPSAscores of 14 or above.

According to many states, this new policy drastically reduced the number of communities that qualified for J-1 physicians. Texas reported that under these new guidelines, the number of wholeor partial counties that once qualified for J-1 physicians was reduced from 225 to 30. Other statesthat were adversely impacted include Iowa, which dropped from 82 previously eligible counties to2, Wyoming, which dropped from 21 to 4, Kansas, which dropped from 97 to 15, and Florida, whichdropped from 63 to 30. (15) Bills introduced in the108th Congress have focused on this issue and haveincluded language that would allow states to place up to five physicians in facilities that may not bein HHS-designated shortage areas if they are serving patients from designated shortage areas. Thesebills also allow states to recruit speciality care physicians if they can demonstrate a shortage ofhealthcare professionals to provide services in the requested medical specialty.

Delta Regional Authority. On May 17, 2004, the Delta Regional Authority (DRA) officially began accepting applications for its new J-1 visa waiverprogram. The DRA includes 240 county or parish areas in Alabama, Arkansas, Illinois, Kentucky,Louisiana, Mississippi, Missouri and Tennessee. The goal of the Authority is to stimulate economicdevelopment and foster partnerships that will have a positive impact on the economy of the eightstates that make up the Authority. Under the DRA's waiver program, physicians must submit anapplication processing fee; agree to practice in designated shortage areas for a period of at least threeyears; and sign an agreement agreeing to pay $250,000 to the sponsoring facility if they do not fulfillany portion of their commitment, or $6,945 per month for each month they fail to fulfill theirrequirement.

Expiration of "Conrad 30" Program. On May 31,2004, the "Conrad 30" provisions in the INA expired. The expiration of this program means thatstate-sponsored waivers can only be granted to J-1 physicians who were admitted to the UnitedStates, or who had acquired J-1 status, prior to June 1, 2004. (16) The expiration of these J-1 waiverprovisions, along with the changes in HHS's program have many in rural medical communitiesconcerned. Many states continue to argue that the J-1 waiver program is the only way theircommunities can recruit physicians, because many U.S. medical graduates uninterested in workingin these areas. (17) As discussed below, several billshave been introduced in the 108th Congress toaddress the concerns of medically underserved areas that rely on J-1 physicians.

State Surveys. In May 2001, the Texas Primary Care Office of the Department of Health conducted a nationwide survey of state health departmentsutilizing J-1 waiver programs. (18) The survey posedspecific questions regarding the administrationof the programs in the states and asked for recommendations on the programs. The responsesindicated that many of the states with "Conrad 20" programs also requested waivers through USDAand ARC, and that those without "Conrad 20" programs utilized the USDA waiver program.

Recommendations from the states for the J-1 visa waiver program included the following:

allow states to determine the appropriate use of the program;

allow states to determine the number of waivers needed based on the needs ofthe states;

allow fees to support the program;

have HHS coordinate ongoing support and technical assistance;and

have the Department of State and USCIS provide information and technicalassistance to the states.

Other suggestions included allowing states to share unused waivers, having more interaction with USDA, and having an annual conference involving both federal and state agencies.

When USDA announced it would no longer participate in the J-1 waiver program in February 2002, the Texas Primary Care Office conducted a second survey, on the impact of the agency'swithdrawal on states and their use of "Conrad 20." The survey also solicited furtherrecommendations for the program. (19) Of the 49states that responded, 26 indicated that their stateswould be impacted by USDA's decision. Of the 23 states reporting no impact, 17 placed less than20 physicians annually through "Conrad 20," or had no involvement with USDA. In the survey 25states indicated they could place more than 20 physicians, with seven implying they could placemore than 51 physicians. (20) Several statesindicated that they may have to use all 20 availablepositions, but that termination of the USDA program would not change their programs.

In July 2003, the Texas Department of Health conducted a review of the "Conrad" programs from 2000-2003 (21) as well as a survey on theeffects of HHS's policy change on the states. (22) Thereview showed that 49 states and the District of Columbia had some sort of "Conrad" program in2003. Idaho was the only state without a program, but was in process of developing one. Thereview also showed that over the four-year period, the "Conrad" programs had requested a total of2,949 waivers, with 758 of those being for sub-specialists. Recommendations for sub-specialistsincreased from 14% of all waiver requests in 2000 to 33.5% in 2003. It should be noted that the"Conrad" programs are the only J-1 vias waiver programs, other than the VA that recommendnon-primary care physicians. Currently, only six states with "Conrad" programs limit theirrecommendations to primary care physicians.

The 2003 survey found that of the 45 states that were participating in the program in 2001 and 2002, 22 states had filled all of their 20 slots, and 21 states had requested the additional 10 slotsmade available in early 2003. These additional slots were counted as part of the 2002 totals. In2003, 18 states filled all of their slots, and 15 of the states responded that they could fill anywherefrom 5 to 50 additional slots. (23)

When asked to suggest changes to the program, states continued to express an interest in: the re-distribution of unused slots; possibly increasing the number of waivers available to states to 40;making the program permanent; and allowing the state departments of health or programadministrators decide where the physicians would be placed.

Legislation in the 108th Congress

Several bills have been introduced to address the May 2004 expiration of the "Conrad 30"program. The companion bills H.R. 4156 / S. 2302 , introduced byRepresentative Jerry Moran and Senator Kent Conrad would extend the "Conrad 30" program until2009; allow state public health departments to identify shortage areas; and make physicians whoobtain waivers from the states exempt from the H-1B numerical limit. Both bills were referred totheir respective Judiciary committees in April 2004. On October 11, 2004, the amended version of S. 2302 passed the Senate. The amended bill extends the program until June 1, 2006;exempts waiver recipients from the H-1B cap; allows recruiting of primary and speciality carephysicians; and allows placement of up to five physicians in shortage areas designated by the states.

H.R. 4453 was introduced by Representative Jerry Moran on May 4, 2004. The bill as originally introduced would have extended the program for one year and exempted waiverrecipients from the H-1B cap. It passed the House Judiciary Subcommittee on Immigration, BorderSecurity, and Claims on June 3, 2004, and was referred to the full Judiciary committee.

On September 30, 2004, Representatives Sheila Jackson-Lee and John Hostettler offered an amendment in the nature of a substitute to H.R. 4453 . The new bill would extend theprogram until June 1, 2006; allow states to recruit specialist as well as primary care physicians;exempt waiver recipients from the H-1B cap; and allow the placement of five physicians instate-designated shortage areas.

Historically, some have argued that the J-1 visa waiver program should be made permanent or extended for a number of years to allow an investigation into the use of foreign physicians to meethealthcare shortages and their impact on American physicians. During the committee markup ofH.R. 4453, it was expressed that the purpose of the two-year extension was to allow thesubcommittee time to look into this matter, as well as receive input from HHS regarding theplacement of physicians outside of HHS-designated physician shortage areas. (24) The compromise onthis issue was to allow each state to place 5 of their 30 physicians allowed under the Conrad programin shortage areas determined by the state before making it a permanent provision of the program.

On October 6, 2004, H.R. 4453 was debated on the House floor. Several members, including Representatives Sensenbrenner and Moran, urged passage of the bill, citing the program'ssuccess in serving underserved populations in their states. The bill passed the House and wasreferred to the Senate on October 6, 2004. No further action has taken place.

On November 17, 2004, S. 2302 was debated and passed by the House. When originally introduced by Senator Kent Conrad on April 7, 2004, the bill would have extended the"Conrad 30" program through June 1, 2009; exempted waiver recipients from the H-1B numericallimit; allowed states to recruit primary and specialty care physicians; and place up to five physiciansin shortage areas determined by the states. In a bipartisan compromise, the Senate-passed versionof S. 2302 would extend the program expiration date to June 1, 2006; exempt recipientsfrom the H-1B numerical limit; allow states to recruit primary as well as specialty care physicians;and allow the placement of up to five physicians in areas that serve populations from HHSdesignated shortage areas without regard to the facility's location. S. 2302 was presentedto the White House on November 22, 2004; and signed into law on December 3, 2004. (25)

Appendix A: Legislative History of FMG Provisions

During the life of the J-1 program, there have been several changes to the home residencyrequirement and the rules regarding the adjustment of status of J-1 participants. When the culturalexchange program was originally established in 1948 by the Smith-Mundt Act, exchange visitorsentered the country as "B" nonimmigrant visitors for business. The program required theparticipants to return to their home country or country of last residence upon completing theireducation and training, did not allow participants to apply for a change of status, and did not providefor waivers. (26) To get around these restrictions,many participants would leave the country only toquickly return to the United States under another nonimmigrant visa or as an immigrant. To addressthese concerns, Congress amended the Smith-Mundt Act in 1956. (27)

The 1956 amendments prohibited participants from applying for H nonimmigrant or immigrant status until it had been established that the alien had been present in a cooperating country orcountries for at least two years. The amendments also added a provision for waiving the residencyrequirement when an interested government agency (IGA) and the Secretary of State requested it inthe public interest.

In 1961, the Mutual Education and Cultural Exchange Act established the J-1 exchange program as we now know it and further amended the foreign residency requirement of the program. (28) It prevented participants from applying for legal permanent resident (LPR) or H nonimmigrant statusuntil they had resided and been physically present in their home country, their country of lastresidence, or another foreign country for at least two years. The act also added the provision forwaivers to be granted in cases of extreme hardship to a U.S. citizen or LPR spouse or child.

In 1970, Congress amended the INA and limited the two-year residency requirement to those J-1 visitors whose participation was financed by their home country, the United States, or aninternational organization of which the United States was a member, or whose skills weredetermined to be lacking in their home country. (29) The 1970 Act further amended the INA to allowwaivers for those J-1s who feared persecution in their home countries based on race, religion, orpolitical opinion, or in cases where it was found to be in the public interest that the alien remain inthe United States.

In 1976 Congress imposed restrictions on FMGs in the J-1 program, stating that there was no longer a shortage of physicians in the United States and that there was no longer any need to affordadmission preference under the INA. (30) FMGswere made subject to the two-year home residencyrequirement regardless of who financed their program, their initial J-1 length of stay in the UnitedStates was limited to a maximum of three years, and they were ineligible to receive waivers basedsolely on "no objection" statements from their home country. They were required to make acommitment to return home upon completing training, and the home country was required to providewritten assurance that FMGs would return after completing training and would be put in positionsto fully use the skills acquired during their training. (31)

In an effort to encourage physicians to study in the United States instead of Communist countries, the Department of State requested that Congress extend the three-year limit to seven yearsfor FMGs. (32) Congress responded to the StateDepartment request in the Immigration and NationalityAct Amendments of 1981. (33) While extendingthe stay for FMGs, this law also required FMGs toprovide affidavits annually to INS attesting that they would return home upon completing theirprograms, and required U.S. officials to submit annual reports on the status of FMGs who submittedaffidavits.

In 1994, Congress passed the Immigration and Nationality Technical Corrections Act, which established a new program that allowed interested states to act as IGAs on behalf of J-1 physicians. (34) This program allowed each state to request waivers for up to 20 physicians annually. Commonlyreferred to as the "Conrad 20" program after its sponsor Senator Kent Conrad, it was originally slatedto end on June 1, 1996. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)extended the "Conrad 20" program until June 1, 2002. (35)

On May 31, 2002, the "Conrad 20" program authorization expired. In an effort to assure continued services to medically underserved areas, the program was once again extended by the 21stCentury Department of Justice Appropriations Authorization Act. (36) This law not only extended thedate of the program to May 31, 2004, it also expanded the program to allow each state 30 waiversand enacted the law retroactively to May 31, 2002. This latest extension of the program expired onMay 31, 2004.

On December 3, 2004, the "Conrad 30" program was once again extended. The new law extends the program until June 1, 2006 and includes provisions allowing states to recruit primary andspecialty care physicians; exempting waiver recipients from the H-1B numerical limits; and allowingstates to place up to five physicians in areas that serve populations from HHS-designated shortageareas without regard to the facility's location. During the program's two-year extension, Congressplans to investigate the physician shortage and the use of the "Conrad" program.