By Greg Siskind
It took a global pandemic, but it looks like after 16 years, Congress is serious about passing legislation to address the dysfunctional health care worker immigration system. There are several bills gaining traction and, in this issue, I’ll look at a few of them including the changes they would bring and their odds of passing.
The move by Congress to address front line health care workers in the COVID-19 crisis has precedent literally from the front lines. In every war since the World War I, the United States has granted immediate citizenship to foreign soldiers who fought with the US military. President Trump has compared himself to a wartime President, the Surgeon General has called this time our “Pearl Harbor” moment and Dr. Fauci has referred to health care workers as “warriors”. So, the idea of providing people who are risking their lives to protect Americans with immigration benefits isn’t novel.
As of the writing of this article, there are three legislative efforts aimed at benefiting health care workers. The one that has been around the longest is Senate Bill 948 (HR 2895 in the House). The bill is titled the Conrad State 30 and Physician Access Reauthorization Act and it is focused specifically on doctors from abroad (referred to commonly as international medical graduates or “IMGs”). Versions of this bill have been introduced in prior sessions of Congress and it is not specifically focused on COVID-19. Rather, it’s addressing the long-term physician shortage in the US and ensuring that health shortages areas across the US have access to IMGs who are critical to ensuring access to enough doctors. Rural areas of the US have benefited from the J-1 waiver program for American-trained IMGs for decades. But the program is hampered by a number of problems. The bill addresses many of those.
First, it makes the Conrad 30 J-1 program permanent. This program allows all 50 state health departments to sponsor up to 30 IMGs per year to come work for a minimum of three years in their state’s shortage areas (often rural towns and inner-city neighborhoods). Doctors are incentivized because they can bypass the normal requirement to leave the US for at least two years upon completion of their residency or fellowship training. The bill also expands the number of Conrad slots to 35 and it provides various technical fixes to ensure IMGs and their employers can more easily comply with the program requirements.
The bill Conrad 30 bill also fixes another major problem. A high percentage of IMGs are from India (more than 30% by some estimates). Under our rules for getting green cards, a specific allotment is made available for each of various employment-based green card categories including one for doctors (the EB-2 category). Within each of these categories, there’s a limit of 7% on how many of the green cards can go to a particular country’s nationals in a given year. That’s a massive problem for Indians, including Indian doctors. The estimated green card wait for doctors from India is an astonishing 15 to 20 years. A lot of doctors simply are giving up on getting permanent residency and many are leaving the US (something that was rare in the past). The Conrad bill would allow physicians who work for 5 years in an underserved area to bypass the green card quotas.
The Conrad bill currently has near even bipartisan co-sponsorship (8 Democrats and 8 Republicans in the Senate and 51 Democrats and 45 Republicans in the House).
Another bill that is gaining traction is S.3599, the Healthcare Workforce Resiliency Act (the “HWRA”), a bipartisan bill sponsored by some Senate heavyweights. The lead co-sponsors are Senator David Perdue (R-GA) and Senator Richard Durbin (D-IL). Senator Durbin is the ranking Democrat on the Immigration Subcommittee and the Republican Chair of the Subcommittee, Senator Jon Conryn of Texas, recently signed on as a co-sponsor as well. S.3599 is relatively narrow in its scope. It provides green cards for 25,000 nurses and 15,000 physicians who are currently waiting in green card backlogs. While the Conrad bill would help physicians participating in the Physician National Interest Waiver program, there are 1000s of doctors who would not qualify under that bill and the Conrad bill doesn’t cover nurses. The House recently introduced a bipartisan bill with the same language.
Finally, on May 15th, the House passed the HEROES Act, a $3 trillion, 2000-page COVID-19 relief bill, that has an immigration section that includes a completely different set of proposals addressing physician immigration. The House bill provides some green card relief to doctors including a clearing out of doctors who have completed their physician national interest waiver service time as well as a separate section providing 12,000 green cards for doctors, health care workers and medical researchers engaged in the diagnosis, treatment and prevention of COVID-19. The bill has the Conrad 30 program expansion noted above as well as a number of short-term fixes specifically designed to address problems created by the pandemic. For example, rules for providing telemedicine by IMGs are relaxed as are restrictions on moving to COVID-19 hot spots. And employment authorization documents are available to health care workers doing COVID-related work.
Each of these proposals essentially addresses different problems in the health care immigration system. The Conrad 30 bill focuses on system issues with physician immigration and is designed to address problems that will exist long after the pandemic is behind us. HWRA likely clears out multi-year green card backlogs for doctors and nurses that have taken years to build. And the HEROES bill attacks short-term issues related to COVID as well as rewarding health care workers who have been on the front lines of COVID with green cards.
The politics are tricky when it comes to physician immigration. There’s general bipartisan support, but pro-immigration bills are not moving individually in this Congress. The only way legislation is likely to pass is as part of a larger bill – like a COVID relief package. The House bill passed on the 15th has been described as “dead on arrival” by Senate Republicans as well as the President. But there will likely be growing pressure on the Senate to move a bill. And if that happens, it is possible they will include their own health care immigration provisions – likely the HWRA and/or the Conrad 30 bill. If the Senate should pass a COVID bill, it will have to reach a compromise with the House, including whether to include health care worker immigration language. It is quite possible that the concepts included in the various bills will be blended since they largely complement each other.
Should Congress pass health care worker immigration legislation, it will be the first time any pro-immigration legislation has passed in 15 years. And, of course, President Trump would need to sign the legislation. However, it is likely that with a proposal involving in excess of a trillion dollars, immigration provisions with relatively strong bipartisan support are not likely to derail signing the bill.
Siskind Susser, PC Immigration Lawyers [email protected] www.visalaw.com