According to the American Medical Association (AMA) the physician shortage is an urgent crisis https://www.ama-assn.org/press-center/press-releases/ama-president-sounds-alarm-national-physician-shortage. Hospitals have been turning to international physicians who complete their residency or fellowship in the U.S. to fill this need. Hospitals in underserved areas traditionally used state Conrad Waiver to employ non-citizen physicians on a H-1B visas. However, the Conrad Waiver program is limited to 30 physicians per state, and these coveted waivers go very quickly. Faced with this shortage, hospitals are turning to the U.S. Health and Human Services-based HHS waiver process as an alternative to retain onboard international physicians. Rarely used in the past, HHS waiver process has recently been expanded and more accessible to U.S. hospitals.
How do we know if the Physician and Hospital may qualify for HHS waiver?
First, we need to make sure the hospital qualifies. To determine if the hospital qualifies, we need to look at the following:
Does the Employer hospital have an HPSA (Health Professional Shortage Area) score of 7 or above?
Is the position the Employer hospital looking to fill with the internation physician in an area of Primary Care, including for example, family medicine, general internal medicine, general pediatrics, obstetrics & gynecology, or general psychiatry?
Is the Employer hospital willing to provide the below listed attestation:
(ii) A statement, signed and dated by the head of the health care facility at which the foreign medical graduate will be employed, that the facility is located in an area designated by the Secretary of Health and Human Services as a Medically Underserved Area or Primary Medical Care Health Professional Shortage Area or Mental Health Professional Shortage Area and provides medical care to both Medicaid or Medicare eligible patients and indigent uninsured patients. The statement shall also list the primary care Health Professional Shortage Area, Mental Health Professional Shortage Area, or Medically Underserved Area/Population identifier number of the designation (assigned by the Secretary of Health and Human Services), and shall include the FIPS county code and census tract or block numbering area number (assigned by the Bureau of the Census) or the 9-digit zipcode of the area where the facility is located.
Physician Qualifications:
Is the Physician going to practice in Primary care (family medicine, general internal medicine, general pediatrics, obstetrics & gynecology) or general psychiatry?
Will the Physician start employment within 1 year or less after residency?
If the Physician is still in residency, then there are additional requirements, listed below:
MLE score of 123 or above, and
Either a copy of the Physician’s current license or a copy of their application for license will be needed.
Physician will need to provide a statement such as below:
"I, (insert Name of exchange visitor) hereby declare and certify, under penalty of the provisions of 18 U.S.C. 1001, that I do not now have pending nor am I submitting during the pendency of this request, another request to any United States Government department or agency or any State Department of Public Health, or equivalent, other than (insert Name of U.S. Government Agency requesting waiver) to act on my behalf in any matter relating to a waiver of my two-year home-country physical presence requirement." Statement must be signed by the physician and dated.
The full list of items that need to be prepared to submit the HHS waiver application are in this link: https://www.hhs.gov/about/agencies/oga/about-oga/what-we-do/exchange-visitor-program/index.html
What should hospitals do if they are struggling to secure Conrad Waivers?
If you are a hospital looking to retain non-citizen physicians, seeking an HHS waiver may be a valuable tool. Hospitals should check with their immigration counsel to see if they have sufficient documentation to submit an application
Leyla McMullen, Corporate Immigration Lawyer
Mdivani Corporate Immigration Law Firm
