S 948

Summary of S 948 Prepared by Greg Siskind (gsiskind@visalaw.com).

 

Section 1 – Title – Conrad State 30 and Physician Access Reauthorization Act

 

Section 2 – Extension – Until September 30, 2021

 

Section 3 – Excludes from numerical immigration limitations alien physicians who have completed national interest waiver requirements by working in a health care shortage area (including alien physicians who completed such service before the date of enactment of this Act and their spouse and children).

 

Section 4(a) – Service must begin within 120 days of getting waiver, completing training or getting Non-Immigrant Visa /EAD approval

 

Section 4(b) – Can do J-1 waiver service in any NIV or work authorized status

 

Section 4(c) – Requires a substantial contract breach to be in violation of J-1 waiver requirements

 

Section 4(d) – Physicians who are denied a waiver because a state has used up its allotment of Conrad waivers for the current year will have their J-1 status automatically extended for up to six months and be automatically authorized to work for a shortage area employer in a state that has not used up its allocation of Conrad waivers.

 

J-1 shortage area waiver employment contracts may not contain non-compete provisions and must specify the following:

  • On-call hours per week
  • Whether the employer will provide malpractice insurance and pay the physician’s malpractice insurance premiums
  • Must list work locations and changes must be approved by the state or federal sponsoring agency

Doctors who are terminated during the 3-year service period are considered to be maintaining lawful status for a 120-day period if they transfer employers based on extenuating circumstances (see above) and for 45 days if they transfer based on agreeing to extend the 3-year service period.

 

Section 4(f) Allows for transfers to new employers under the following three circumstances:

o DHS determines there are extenuating circumstances and the alien can demonstrate another job offer at a shortage facility for the remainder of the 3-year service period and the new position is located within 120 days, or

o The interested State or Federal agency that requested the original waiver agrees that extenuating circumstances exist and the doctor demonstrates another job offer at a shortage facility for the remainder of the 3-year service period and the new position is located within 120 days, or

o The doctor finds a new offer in an underserved area and submits a new H-1B petition agreeing to work one additional year in addition to the original 3-year commitment. The doctor will have a 45-day grace period to find a new employer if they terminate their employment with the original sponsoring employer.

 

Section 5(a) – Increases waiver numbers for all states to 40/state if 90% of waivers were used in the prior year. States that used fewer than 5 would be taken out of the calculation based on the assumption that a state using fewer than 5 waivers probably don’t have an active waiver program.

 

Section 5(b) – Allows three new slots to be available in states for academic medical centers

 

Section 6(a) – Physicians entering the US in J-1 status to seek graduate medical training or in visitor status take examinations required to receive graduate medical training are considered “dual intent” and will not be denied a visa because of the physician’s failure to provide evidence of non-immigrant intent.

 

Section 6(b) – Clarifies that PNIWs are available to physician practicing in specialties in shortage areas and VA facilities and at “flex” locations where patients are from underserved areas even if the physician is not located in a shortage area.

 

Section 6(b) Clarifies that 5-year service requirement begins on the date work begins in the shortage area and not when the I-140 immigrant petition is filed or approved. Time spent in graduate medical training in a shortage area may count toward the 5-year requirement.

 

Section 6(b) – The employment contract submitted only needs to be for the balance of the 5-year requirement needing to be satisfied.

 

Section 6(b) – New I-140 petitions are not required each time a physician changes a work location

Clarifies that PNIWs may be based on support letters from local, state or federal health officials.

 

Section 6(c) – Clarifies that foreign medical degree deemed acceptable for entry into graduate medical training in the US is deemed equivalent to an MD for purposes of filing a green card application under EB-2.

 

Section 6(d) – “Cap gap” for physicians who are employed by an H-1B cap-subject employer after completing graduate medical training with a cap-exempt employer. Such physicians will have their work authorization extended through the start date of a cap-subject H-1B petition.

 

Section 6(e) – INA 212(e)’s home residence requirement does not apply to J-2 spouses and children.