Employing foreign physicians and researchers during the Trump years

Immigration has undoubtedly been a hot topic this past year. U.S. immigration policy, which requires balancing economic, humanitarian, and national security concerns, was a pivotal issue in the presidential campaign and continues to be a priority of the Trump administration. Immigration policies impact health care providers in multiple ways – as employers, caregivers, health care advocates, community members, or immigrants themselves. The partisan tone and sheer volume of immigration policy activity and debate has created uncertainty for employers – and fear for foreign nationals.

This article provides a brief overview of the Trump administration’s immigration reform so far and analyzes how the emerging policies and reforms already have and will continue to impact the health care industry.

Executive Orders on Immigration Reform

At the onset of his presidency, Trump set out to spark immigration reform by issuing a flurry of executive orders. No less than eight executive orders issued in less than three months established the administration’s key priorities:

• Border and interior security enforcement
• Crime and public safety
• Temporary travel ban for refugees and nationals from certain Muslim countries deemed dangerous to national security
  •  On June 26, 2017, the U.S. Supreme Court granted the Trump administration applications to stay the temporary injunctions that prevent enforcement of the travel ban with respect to foreign nationals who “lack any bona fide relationship with any person or entity in the United States.” In light of this latest development, individuals from Iran, Iraq, Libya, Somalia, Sudan, Syrian, or Yemen without formal family or employment ties with the U.S. cannot seek entry into the U.S. for at least the next 90 days. In addition, admission of all refugees, including those already vetted and merely awaiting transfer to the U.S., is suspended for at least the next 120 days.
  • The U.S. Supreme Court will hear the underlying cases challenging the constitutionality of the Trump travel ban in October 2017 and decide the long-term fate of such travel ban.
• Focus on buy and hire American

Notwithstanding the initial chaos that ensued when the temporary travel ban was first issued, most of these orders do not directly impact health care employers and foreign-born physicians, who are traveling to the U.S. or are lawfully in the U.S.

H-1B Reform

President Trump has been a staunch critic of the H-1B visa program since the beginning of the presidential race. This program, which allows foreign nationals in “specialty occupations” to obtain temporary non-immigrant rights to work in the U.S., is health care providers’ primary means of employing physicians and researchers. President Trump’s principal criticism of the H-1B program is that it allegedly enables certain employers (notably in the tech. industry) to replace American workers with H-1B workers, who are paid less than the median wage for the same occupations. Foreign physicians and health care employers are not the main targets of the H-1B reform efforts, but they should remain vigilant not to become the unintended victims since they also utilize the H-1B visa program heavily. Although President Trump has promised to overhaul the program, the fiscal year 2018 H-1B season kicked off in April 2017 with only minor tweaks and to date, there have not been any changes affecting the program.  

Cancellation of Premium Processing for H-1B Petitions

Effective April 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) temporarily suspended premium processing for all H-1B petitions in the hope of addressing the mounting backlog of petitions and eventually decreasing overall processing times. Premium processing reduces turnaround times from the standard six to eight months, to fifteen days guaranteed (subject to eligibility). For only $1,225, this was a popular option used by 59 percent of petitioners in 2016. Petitioners may still request expedited processing of an H-1B petition if they meet the expedite criteria, which includes severe financial loss to an individual or a company, emergency situations, humanitarian reasons, and a nonprofit organization’s request in furtherance of the cultural and social interests of the U.S. Unlike premium processing, a request to expedite does not guarantee any specific timeframe and is purely discretionary. The suspension is expected to last approximately six months. It has severely affected J-1 physicians seeking a waiver under the Conrad 30 program because the waiver process imposes tight timelines. A Conrad 30 visa waiver is typically issued in the fall of the last year of residency. After the State Department approves the waiver, the employer needs to petition for an H-1B visa.

The employer will typically apply for premium processing to ensure that the H-1B visa is issued before the residency ends and the J-1 student visa expires. Although new international medical graduates have a 30-day grace period during which they can stay in the U.S., the inability to premium process the H-1B petition has posed problems and anxieties for newly trained foreign physicians, who cannot work or travel, and for hospitals and health care employers, who have patients to serve. In order to address these issues and the extreme numbers of discretionary expedited processing requests, on June 23, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing for all H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers starting on June 26, 2017. Premium processing remains unavailable for any other types of H-1B petitions.

Any physician or researcher with an H-1B visa that is soon to expire should not travel outside the U.S. until their H-1B extension is approved. Also, many states will not renew a foreign national’s driver’s license without a formal visa approval notice.

DHS and DOJ Warnings to H-1B Employers

In late April 2017, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) recently issued guidance that rattled employers and H-1B visa beneficiaries, warning them not to misuse the H-1B process to discriminate against American workers. USCIS then announced that it will begin random and unannounced site visits of H-1B employers in order to deter and detect fraud and abuse. The agency will focus on “H-1B-Dependent Employers,” defined as those with a high percentage of H-1B workers (50% and over), employers who deploy H-1B visa holders to off-site locations, and employers whose basic information cannot be validated through commercially available databases such as Dun & Bradstreet. U.S. employers, including hospitals, health systems, and universities, can expect site visits but physicians should be otherwise unaffected by these warnings.

Diversity Lottery

President Trump has pledged to end the diversity visa lottery system in order to ensure that immigrant visas are granted to the most highly skilled applicants for specific positions, as opposed to the diversity lottery process that merely gives away 50,000 green cards randomly each year. Although bills reforming the program were filed in the House and the Senate, none of those bills moved forward and the diversity visa lottery is still on for 2018 as of the time of publication.

How – and why – to proceed with hiring foreign nationals

Foreign-born physicians must satisfy rigorous requirements and undergo a complex immigration process to study and/or work in the U.S. temporarily or permanently. While daunting at the outset, particularly in the current political climate, health care providers and hospitals should consider sponsoring these physicians as part of a strategy to ensure a qualified, diverse, and motivated workforce to meet the needs of their communities.

Because non-compliance with immigration laws can create risks for employers as visa sponsors and may have devastating consequences for foreign-born physicians and their families, employers need to retain legal counsel with expertise in immigration to assist in navigating through the process. In-house lawyers should have at least a rudimentary understanding of immigration issues to deal with day-to-day compliance issues and to know when to seek advice from outside counsel. Employers that regularly employ foreign nationals may want to consider retaining a paralegal-lawyer team to handle the immigration workload. A well-trained in-house paralegal can prepare the myriad immigration forms, maintain documentation, and triage questions from physician recruiters and foreign national employees. The immigration attorney can oversee the paralegal, and handle more complex decisions.

For more information about the immigration process for foreign physicians and researchers and employers’ documentation requirements, please contact one of the attorneys listed below.

Justin Abbarno, a legal intern at McDonald Hopkins, assisted with the research and writing of this blog post.