By KATHLEEN CAMPBELL WALKER
Dickinson Wright

On Feb. 12, 2022, the Subcommittee on Immigration and Citizenship of the House Committee on the Judiciary held a very informative hearing regarding the relevance of foreign physicians in the healthcare system of the United States. The hearing was titled, “Is There a Doctor in the House? The Role of Immigrant Physicians in the U.S. Healthcare System.” The testimony provided underscores the ridiculous labyrinth of immigration rules set to complicate and cause ongoing unpredictability for foreign physicians trying to obtain approval to serve the U.S. public – even when desperately needed.

Dr. David J. Skorton, the President and Chief Executive Office of the Association of American Medical Colleges (AAMC), which is a nonprofit comprised of members of all 155 accredited U.S. and 16 accredited Canadian medical schools, outlined the following critical points:

• Based on the AAMC’s review of American Medical Association (AMA) data in 2020 for physician practices, approximately 23% of active physicians practicing in the U.S. identified as foreign born. Many of whom are now U.S. citizens or legal permanent residents.
• AAMC projects that the overall physician shortage will grow to a total of between 37,800 to 124,000 physicians by 2034. This projection includes shortages of primary care physicians between 17,800 and 48,000; and between 21,000 to 77,100 physicians as to non-primary care specialties.
• From an academic perspective, the number of first-year medical students has grown by nearly 35% since 2002 due to an increase of class sizes and the opening of 30 new schools. In addition, five additional medical schools applied for accreditation consideration as noted on the website of the Liaison Committee on Medical Education (LCME) . The LCME accredits medical education programs leading to an M.D. degree in the U.S. and Canada.
• Increasing enrollment in U.S. medical schools, however, does not increase the size of the physician workforce without coordinated increases in graduate medical education (GME) residency positions. Thus, the AAMC supports the provision of the Resident Physician Shortage Reduction Act of 2021 (H.R. 2256, S. 834 – 117th Congress), which adds 14,000 Medicare supported GME positions over seven years.
• Mr. Skorton’s testimony also notes that research published in the Journal of the American Medical Association (JAMA) network has shown that more than 99% of all U.S. M.D. school graduates enter a residency program or full-time practice in the U.S. within six years of graduation.

As to current U.S. dependence on foreign medical residents, based on the National GME Census sponsored annually by the AMA and the AAMC, approximately 8% of U.S. medical residents were in the U.S. as nonimmigrant visa holders (e.g., typically J-1 or H-1B). Representative Sheila Jackson Lee stated in her testimony that as of November of 2020, international medical graduates (IMGs) have accounted for 45% of physician deaths due to COVID-19. In addition, she referred to the prediction of the AAMC that by 2034, the number of those in the U.S. over the age of 65 will increase by over 40%.

Solutions

The testimony at the hearing presented a wide variety of well-researched solutions for the challenging hurdles facing IMGs to gain nonimmigrant visas for GME and to apply eventually for permanent residence in the U.S. For those who support the approval of legislative solutions to our physician shortages, which include IMGs, the following pending legislation must be considered and hopefully supported:

1. The Conrad 30 J-1 Visa Waiver Program was only reauthorized by the Fiscal Year 2022 Omnibus Spending Bill through September 30, 2022. The Conrad State 30 and Physician Access Reauthorization Act (H.R. 3541/S.1810), which was introduced in the House in May of 2021 provides for the following primary changes:

• Extends the Conrad program for three years from the bill’s enactment.
• Increases the number of waivers a state may obtain from 30 to 25, if a certain number of waivers were used by the state previously in addition to providing further adjustments related to demand.
• Allows employment of a physician at an academic medical center for the Conrad program, if the work is in the public’s interest even if the medical center is not located in a medically underserved area (MUA) or health professional shortage area (HPSA).
• Allows qualifying physicians who are not selected for a fiscal year’s Conrad slots to extend their status for up to six months to remain in the U.S. to reapply the next fiscal year for a waiver.
• Restore a Conrad slot to an issuing state when a beneficiary physician relocates to another state due to extenuating circumstances.

S. 1810 introduced by Senator Klobuchar (D-MN) current has 25 co-sponsors.

2. The Healthcare Workforce Resilience Act (H.R. 2255/S.1024) was introduced in the House in March of 2021 and proposes to provide relief to physicians subject to extremely long backlogs for immigrant visas. Currently, S. 1024, introduced by Senator Durbin (D-Il), has 25 co-sponsors. Some of the provisions included are:

• Preserves unused employment based immigrant visas from federal fiscal years 1992 to 2020 for nurses and physicians, who petition for such immigrant visas before the date which is 90 days after the end the COVID-19 declared national emergency. The 40,000 number of unused employment based visas available shall be reserved as follows: 25,000 for nurses and 15,000 for physicians.
• Immigrant visas allowed under the bill are exempt from the normal annual per-country limitations, which of course provides relief to severely oversubscribed categories for individuals from India and China, for example.
• Family members accompanying principal immigrant visa applicants will not be counted against the 40,000 cap.
• Premium processing without fee shall be available from U.S. Citizenship and Immigration Services (USCIS) for reviewing and acting upon petitions and applications for immigrants eligible under the immigrant visa reserved numbers outlined.

Other fixes to consider among many others include:

1. Expand the scope of the U.S. Department of Health and Human Services (HHS) J-1 clinical waiver program to include subspecialties and practice locations in HPSAs or MUAs without limitation by a certain score.
2. Expand H-1B cap exemptions to apply to IMGs performing services in HPSAs or MUAs or adjoining locations primarily servicing Medicaid patients, for example.
3. Exempt time spent completing GME from the H-1B six year cap on H-1B status.
4. Add the profession of physicians serving in MUAs or HPSAs to Schedule A for labor certification.
5. Allow spouses to work incident to status based on being a dependent of an H-1B physician serving in an underserved area.

Our healthcare shortages of physicians are also expected to be exacerbated by increasing retirements of current providers. For a public security threat so clearly highlighted by the pandemic, it is incomprehensible that a red carpet has not been rolled out by the U.S. to facilitate increased residency programs and GME funding for U.S. medical school graduates as well as the passage of bills and procedural changes to reduce the current trauma created by ongoing immigration law dysfunction and political divisions.