Health Care Organizations and Immigration: Employer Considerations

Health care organizations of all types, including hospitals, health systems, insurers, pharmaceutical companies and research universities, seek to employ the best and the brightest to deliver quality care and pursue the organization’s mission. This focus on talent means that health care organizations need to understand the employment-based immigration factors that affect their U.S. workforces since the top candidates can come from all over the world.

This article provides the latest information on several immigration topics affecting health care organizations.

H-1B Visas for Software/IT Professionals, Physicians, Business Analysts and Executives in Health Care Organizations

The H-1B visa is one of the most common professional visas for health care organizations who need to hire non-U.S. citizen talent. The H-1B visa classification is for specialty occupations, which means occupations that require theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States. The foreign national must meet the requirements for the position, including having a bachelor's degree or higher and state licensure if such credentials are required. The employer must also demonstrate that it is offering the prevailing wage for the occupation in the proposed labor market.

IT professionals, business analysts, physicians, nurse managers/nurse practitioners, executives and other health care positions typically qualify as “specialty occupations” under the H-1B rules.

One main challenge for employers seeking to apply for H-1B visas for their employees is timing. A limited number of visas are available each year, and because more H-1B petitions are filed than are available, employers must file petitions for new H-1B visas in the first five business days in April for an individual to begin working in H-1B status in October. In recent years, U.S. Citizenship and Immigration Services (USCIS) has imposed a random lottery on all the new petitions submitted in April as a method to fairly determine which petitions get reviewed since there are many more submitted than there are spots available under the H-1B “cap.”

A key question for health care organizations considering hiring an employee who requires an H-1B visa is whether the organization is subject to the H-1B “cap.” The cap is a limit of 65,000 new H-1B visas per fiscal year and an additional 20,000 new H-1B visas per fiscal year for individuals who have graduated with a master’s degree or above from a U.S. university (for a total of 85,000). Some types of organizations and applicants are exempt from this cap, meaning they may submit new H-1B petitions at any time during the year, without concern for whether the H-1B cap limit has been reached. Cap-exempt categories include:

• Physicians on J-1 visas who have obtained a waiver (see below)
• Employees offered positions at institutions of higher education (i.e., colleges and universities)
• Employees offered positions at non-profit entities related to or affiliated with institutions of higher education
• Employees offered positions at nonprofit research organizations
• Employees offered positions at governmental research organizations (which includes state and local government research entities in addition to federal ones)

A health care organization that may be considered a non-profit entity related to or affiliated with an institution of higher education needs to show either that it is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation; that it is operated by an institution of higher education; that it is attached to an institution of higher education as a member, branch, cooperative or subsidiary; or that has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

Note that the definitions above have been updated and effective as of January 17, 2017, with the implementation of the skilled worker rule, which changed the definition of H-1B cap-exempt employers.

Example: ABC Health System is a not-for-profit organization with a letter from the IRS evidencing its exemption from federal income tax as a 501(c)(3). ABC Health System has an Agreement of Institutional Affiliation with the University of Anystate that describes the terms of an educational program that the health system and the university agree to undertake for the benefit of the university’s students, medical residents and fellows to gain training experiences. Evidence that ABC Health System and University of Anystate have an active working relationship will be included with the H-1B petition, such as an ongoing medical education program. ABC Health System can file cap-exempt H-1B petitions because of this affiliation and active working relationship.

Note that if an individual is employed by both a cap-exempt entity (such as a university) and a cap-subject entity (such as a private company) at the same time, that individual is considered cap-exempt for purposes of a concurrent H-1B employment petition for the cap-subject entity. However, if the cap-subject entity wants the H-1B worker to work full-time, an H-1B cap-subject petition must be filed under the lottery system so that it can be selected and then approved with an available H-1B cap number. Once approved, the full-time employment with the cap-subject entity can then start on October 1 as any other cap-subject case selected in the H-1B lottery.

Therefore, health care organizations should seek to determine whether or not they may be considered cap-exempt per the options above. Those entities recognized as cap-exempt in prior years may need to submit additional information to prove ongoing eligibility for cap-exemption under the new regulations. The ability to submit H-1B petitions for professionals at any point during the fiscal year is a huge advantage in the hunt for talent and the ability to onboard employees in a timely fashion.

Additional H-1B considerations for health-care related occupations include licensure requirements. Licensing requirements for different health care occupations vary from state to state. Some states will grant temporary licenses which will allow employment –based petitions (H-1B, TN or other applicable work visa category) to be filed. However, some states required a Social Security number (SSN) as part of the license application and process. This will place the work visa applicant in a catch-22 situation as the applicant needs the work visa to obtain the SSN, but needs the SSN for the license which is a requirement for the H-1B work visa. The skilled worker rule referenced above now allows for USCIS to grant an H-1B work visa for a one-year period so that these types of licensure issues can be resolved. Once the license is granted, an H-1B extension petition can then be filed for a full three-year period.

In addition to licensing, certain health care occupations require additional credentialing requirements, such as a VisaScreen certificate. Health care organizations need to ensure recruiting and Human Resources teams are well-versed in credentialing and licensing requirements for non-U.S. citizen candidates and employees.

Note that scrutiny on all H-1B petitions – both cap-subject and cap-exempt – has increased dramatically in the past year. Requests for Evidence (RFEs) and even denials have been issued by the immigration service at an unprecedented rate, causing processing delays and headaches for health care organizations who require H-1B visas for professional staff.

J-1 Waivers for Physicians

Many physicians trained outside the U.S. initially arrive in the U.S. to complete their residencies or fellowships on a J-1 visa. The J-1 visa often includes a requirement that the physician return to his or her home country for two years before returning to work in the U.S. upon completing their J-1 program. Every state has developed rules and guidelines under the Conrad 30 Waiver program to allow these J-1 physicians to apply for a waiver to this two-year home residency requirement and remain in the U.S. All states, regardless of their specific rules, require that the J-1 physician:

• Agree to be employed full-time with an H-1B visa at a health care facility located in an area designated as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP)
• Obtain a contract from the health care facility located in an area designated as a HPSA, MUA or MUP
• Obtain a “no objection” letter from his or her home country if the home government funded his or her exchange program
• Agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date his or her J-1 visa expires

Recipients of a Conrad 30 Waiver are not subject to the H-1B cap (as mentioned above).

In applying for the waiver, the physician and applicable health care facility in the underserved area must obtain sponsorship from a state health department and complete a Department of State (DOS) J-1 Visa Waiver Review Application. Each state health department has its own process for the filing and review of the J-1 physician waivers prior to approval. Many states, such as Minnesota, have a specified time period for the health care facility to file the J-1 physician waiver applications. After receipt, the state health department will evaluate certain criteria to determine that the most deserving applications receive one of the 30 available slots each fiscal year. Advance planning is critical to the hire of a J-1 waiver physician. For example, if a health care facility is looking to bring a physician on board after a June 2019 residency/fellowship is completed, that health care facility needs to hire the physician and work on the J-1 physician waiver application no later than the fall 2018 depending on the state that is involved.

The state health department is then responsible for forwarding the application on to the DOS Waiver Review Division for a recommendation. USCIS has the ultimate responsibility to grant the waiver, which it generally will following a recommendation from the state health department and DOS.

Once the waiver is granted, the health care organization must submit a petition to change the physician’s status from J-1 to H-1B. Since most residency and fellowships end on June 30, the start date for the H-1B will be July 1. This will also be the start of the three-year time period that the physician must work for the health care facility under the terms of the J-1 physician waiver approval. The physician must work for this three-year period to fulfill the two-year home residence requirement required under the J-1 visa used for the residency or fellowship.

For health care organizations, knowledge of this processing and these important timing considerations are the key as to when a particular physician may begin to work in H-1B status. Immigration practitioners with health care-specific experience can ensure a more seamless transition for physicians and employers and guide recruiters and Human Resources staff through the process.

Registered Nurses

Nonimmigrant options for foreign nationals who wish to work as registered nurses in the U.S. include TN, the H-1B and E-3 status.

TN Classification

The TN is a visa option for Mexican and Canadian professionals in certain occupational categories, many of which are health care-specific, that allows for U.S. work authorization on a fairly straightforward basis. There is no limit on the number of years one can work in TN status, and there are no limits on the number of new TNs in a given fiscal year.

To qualify as a Registered Nurse in the TN visa category, a Canadian or Mexican national must meet the following requirements:

• Be a citizen of Mexico or Canada
• Hold a state or provincial nursing license (Canda) or Licenciatura (Mexico) degree
• Hold a CGFNS VisaScreen certificate
• Have a job offer from a U.S. employer

Canadian citizens may apply for TN status at the U.S.-Canada border or airport pre-clearance/pre-flight station and are admitted in TN status without the need for a visa stamp in their passport. Alternatively, a U.S. employer may choose to file a TN visa petition on behalf of a Canadian citizen who is outside the U.S. with USCIS. Once the petition is approved, the Canadian citizen will present the approval notice and supporting documentation at a designated U.S. port of entry or pre-clearance/pre-flight inspection.

Mexican nationals apply for a TN visa at a U.S. embassy or consulate in Mexico, where a TN visa stamp is issued. Once the TN visa is issued, application for admission to the U.S. in TN status is made at the port of entry.

The initial period of stay in the U.S. in TN status is up to three years. Individuals who wish to remain in the U.S. beyond the initial three-year period must either file for an extension of stay with USCIS or depart from the U.S. and reapply for TN status using the same application procedures outlined above. TN extensions of stay are usually granted in three-year increments.

H-1B Classification

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• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
• The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree
• The employer normally requires a bachelor’s degree or its equivalent for the position
• The nature of the duties [is] so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree

Some registered nurse positions may qualify for H-1B status due to the highly-specialized nature of their duties. Examples of highly specialized registered nurse positions USCIS has indicated may qualify as specialty occupations include:

• Addiction nurses
• Cardiovascular nurses
• Critical care nurses
• Emergency room nurses
• Genetics nurses
• Neonatology nurses
• Nephrology nurses
• Oncology nurses
• Pediatric nurses
• Peri-Operative (operating room) nurses
• Rehabilitation nurses

Positions that require nurses who are certified Advanced Practice Registered Nurses (APRN) are generally eligible for H-1B status due to the advanced level of education and training required for certification. Examples of APRN occupations that may qualify for H-1B status include:

• Certified Nurse-Midwife (CNM)
• Certified Clinical Nurse Specialist (CNS)
• Certified Nurse Practitioner (CNP)
• Certified Registered Nurse Anesthetist (CRNA)

Initial H-1B status is initially granted for up to three years, with a subsequent extension of an additional three years for a maximum of six years in H-1B status. Additional extensions of H-1B status past six years are possible under certain circumstances.

E-3 Classification

Australian citizen nurses who otherwise qualify under the H-1B standards described previously may seek E-3 status. Although infrequently used, health care employers should keep the E-3 nonimmigrant visa category in mind for potential Australian registered nurse employees.

Other Immigration Categories for Health Care Workers

Schedule A Immigrant Visa Petition for Registered Nurses

One option to hire registered nurses is through the filing of an employment-based Schedule A immigrant visa petition in the employment-based third preference category (EB-3). Schedule A is a list of job pre-certified classifications, including professional nurses, which the U.S. Department of Labor has determined: (a) that there are not sufficient U.S. workers who are able, willing, qualified and available to fill the occupation; and b) the wages and working conditions of U.S. workers will not be adversely affected by the employment of the foreign worker. In a Schedule A application, the employer files an immigrant visa petition (Form I-140) directly with USCIS without first going through the PERM labor certification process (test of the labor market) with the Department of Labor.

The requirements for a professional nursing Schedule A application are:

• Job offer from a U.S. hospital or medical center
• Completed, but not certified, labor certification application form and I-140 petition
• Documented compliance with DOL notice posting rules
• Proof of nurse qualifications, including degree, relevant certifications and state licensure

Once the I-140 petition is approved, the foreign national nurse can file an I-485 adjustment of status (permanent residence or “green card”) application. However, since the priority dates for individuals born in certain countries, including the Philippines, China and India, are backlogged, nurses from those countries must wait until the priority date becomes current to file their I-485 applications.

Physician-Specific Permanent Residence

There are several paths available to physicians who wish to pursue permanent residence in the U.S., including the PERM labor certification process, physician national interest waiver petition or extraordinary ability petition.

PERM Labor Certification

The most common employment-based path to permanent residence for physicians is through the PERM labor certification process. In a PERM application, employers must demonstrate to the Department of Labor that there are no available and qualified U.S. workers to fill the position offered to the foreign national employee. The PERM process entails prescribed recruitment for the position, followed by a labor certification filing with the Department of Labor. Upon approval of the PERM application, the employer files a Form I-140 immigrant visa petition with USCIS. If the physician is not from a country that is subject to immigrant visa backlogs, a I-485 permanent residence application can be filed at the same time as the I-140 petition.

Due to a general physician shortage in the U.S., the PERM labor certification process tends to be a relatively simple process with a high probability of success. Physician specialists with advanced training also tend to make the recruitment process fairly easy. However, it is important to note that the labor certification process is both employer-sponsored and employer-specific, and the process must be started over from the beginning if the physician changes employers before attaining permanent resident status. That said, the physician is able to retain the priority date from a previously filed labor certification.

Physician National Interest Waiver

To be eligible for a physician national interest waiver, a physician must commit to work full-time (40 hours per week) for five years in an area designated as underserved by the U.S. Department of Health and Human Services or at a Veteran’s Administration facility. Physicians who received Conrad 30 J-1 waivers may apply the time they have already worked in a designated medically underserved area as part of their J-1 waiver service toward the five-year requirement. Other documented prior service in medically underserved areas may also be applied toward the five-year commitment. A physician national interest waiver petition may be filed by an employer on behalf of the physician, or the physician may self-petition.

A second preference employment-based (EB-2) I-140 physician national interest waiver petition is filed with USCIS along with Form I-140 and supporting documentation, including an executed employment agreement and evidence of employment in a designated shortage area. Barring a backlog in immigrant visa petition availability, physicians may concurrently file I-485 permanent residence applications with the I-140 physician national interest waiver. However, permanent residence applications are not approvable until the physician has fulfilled the five-year service commitment.

Extraordinary Ability

A select group of physicians can achieve permanent residence through the EB-1A extraordinary ability route, which is available to those who have risen to the top of their field and can demonstrate sustained national or international acclaim. Applicants in the extraordinary ability category are required to submit evidence in at least three of 10 categories or have a one-time achievement of vast significance, such as having received a Nobel Prize. The evidence categories are:

• Evidence of receipt of nationally or internationally recognized prizes or awards for excellence
• Evidence of membership in associations in the field that demands outstanding achievements of their members as judged by national or international experts
• Evidence of published material about the physician in professional or major trade publications or other major media
• Evidence that the physician has been asked to judge the work of others, either individually or on a panel
• Evidence of the physician’s original scientific, scholarly, artistic, athletic or business-related contributions of major significance to the field
• Evidence of authorship of scholarly articles in professional or major trade publications or other major media
• Evidence of performance in a leading or critical role in distinguished organization
• Evidence that the physician commands a high salary or other significantly high remuneration in relation to others in the field

In addition, evidence that does not fit in these categories but still shows extraordinary ability may also be submitted.

A physician applying in the extraordinary ability category can either be sponsored by an employer or can self-sponsor. Once again, if the physician is not subject to immigrant visa backlogs, an I-485 permanent residence application may be submitted to USCIS at the same time as the I-140 extraordinary ability petition.

Immigration Compliance Concerns for Health Care Organizations

In addition to the employment-based immigration considerations for highly skilled health care employees described above, health care organizations of all sizes need to be aware of the compliance issues affecting the rest of the workforce, particularly hourly workers. Many health care employees work pursuant to work authorization that is granted to them because of their status as refugees or asylees or because the government has granted them Temporary Protected Status (TPS) because their home countries have experienced a devastating natural disaster or civil war. Employers do not need to file applications or petitions in order for these individuals to work for them. It is often at the onboarding stage when employees are presenting identity documents in connection with Form I-9 that their status comes to light.

Recently, the Trump administration has announced that TPS will end for beneficiaries from El Salvador, Haiti, Nicaragua, Nepal and Sudan. People who have been working with TPS work authorization for years in the U.S. will need to find another status to remain in the U.S. and continue working legally. For employers with many TPS beneficiaries (including many health care organization), the end of TPS will have a noticeable impact on their workforces. Employers need to be vigilant regarding work authorization expiration dates as TPS beneficiaries’ employment authorization documents expire.

Employers have three primary obligations when completing a Form I-9 (for any employee, not just employees who are not U.S. citizens or permanent residents):

• Ensure that the I-9 is completed accurately and thoroughly, including the employee’s Section 1
• Ensure that the documents presented by the employee relate to that employee
• Ensure that the documents look reasonably genuine on their face

In many cases, the Form I-9 is a straightforward process. Employers often get tripped up, however, when employees have expiring work authorization documents or documents that have unique auto-extension rules (like some Employment Authorization Cards for TPS beneficiaries and others). Failure to have an accurate, up-to-date and verified I-9 on file for every employee can get very costly in the event of an audit. Health care organizations (with many hourly employees or employees with temporary work authorization) can face steep fines for failure to follow I-9 regulations. Routine self-audits, regular training for HR staff responsible for I-9s, and outside counsel support are critical to ensure I-9 compliance.

Other Considerations for Health Care Organizations

Finally, it is important for health care organizations to stay on top of changing rules in international travel, including travel restrictions for individuals from certain countries, delays in visa issuance for employees obtaining new visas at embassies outside the U.S., and extreme vetting and scrutiny for all travelers into the U.S., regardless of citizenship. Health care executives are globally mobile, professionals and physicians travel to conferences around the world, and employees may have family members affected by changing immigration rules and policies.

The immigration landscape is shifting quickly, and health care organizations need to be able to discern which shifts can impact their workforces to prepare, be compliant, and continue identifying, attracting and retaining highly qualified talent.

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