USCIS Provides Temporary Flexibility Measures for J-1 Waiver Physicians
/On May 11, 2020, USCIS issued a Policy Memorandum outlining temporary policy changes to provide flexibility regarding the full-time work requirement for Interested Government Agency (IGA) or Conrad 30 waiver service in light of the COVID-19 crisis. The Policy Memorandum provides the following temporary measures:
Full-Time Employment Requirement
Physicians with IGA or Conrad 30 waivers are required to work in H-1B status, and they must work full-time (i.e., not less than 40 hours per week). Generally, a failure to fulfill these requirements would mean the physician is still subject to the 212(e) two-year home residency requirement.
USCIS has recognized that quarantines, illness, travel restrictions, or other situations resulting from the COVID-19 crisis may temporarily disrupt a physician’s ability to work full-time. Therefore, USCIS will not consider a failure to work full-time due to COVID-19 as a reason to reimpose the 212(e) two-year home residency requirement.
The H-1B employer must continue to meet its responsibilities as the H-1B petitioner.
The effective date for the full-time employment requirement measures is January 27, 2020 through the end of the declared Public Health Emergency.
Telehealth Services
USCIS will allow physicians with IGA or Conrad 30 waivers to provide telehealth services during the COVID-19 crisis. Physicians working for the Department of Veterans Affairs may provide telehealth services to patients outside of the states of their contracting facility. All other physicians may only provide telehealth services through their contracting facility and may only serve patients in the state of their contracting facility. For example, if a physician has a Conrad 30 waiver through a facility located in Detroit, Michigan, the physician may only provide telehealth services to patients in Michigan through that facility.
Employers of physicians with an IGA or Conrad 30 waiver may only allow those physicians to telework if it offers the same flexibilities to its U.S. workers similarly employed.
The effective date for the telehealth services measures is May 11, 2020 through the end of the declared Public Health Emergency.
Who is impacted by these policy changes?
The Policy Memorandum affects foreign medical graduates in H-1B status who have received a waiver of the 212(e) two-year foreign residence requirement through the recommendation of an IGA or through the Conrad 30 program and are still fulfilling the terms of their waiver (i.e. are still within the initial three-year service period). IGA waivers include those through the Department of Veterans Affairs (VA), Department of Health and Human Services (HHS), the Appalachian Regional Commission, and the Delta Regional Authority.
Learn more about J-1 Waivers for Physicians ›
Who is not impacted by these policy changes?
These changes do not affect physicians who have received a waiver of the 212(e) two-year foreign residence requirement and have already fulfilled the three-year service requirement.
Ellis Porter Analysis
Documenting Inability to Work
Physicians with IGA and Conrad 30 waivers who are unable to work full-time due to the COVID-19 crisis should be sure to thoroughly document the dates they were unable to work full-time and the reason for the disruption.
Example: If you are unable to work full-time due to illness, you should get a letter from your physician confirming your illness and a letter from your employer confirming the dates you were on leave and the reason for your leave.
Physicians should maintain this documentation for all future immigration matters, including adjustment of status or immigrant visa applications.
H-1B Petitioning Employer Obligations
Employers who sponsored H-1Bs for physicians impacted by the COVID-19 crisis are still required to meet all H-1B employer obligations.
H-1B rules do not allow H-1B employees to be placed in a non-productive status without pay (aka, a furlough). If you need to furlough an H-1B employee, he/she would need to be terminated and his/her H-1B would need to be withdrawn. The employee would have a 60-day grace period after termination, during which time he/she would remain in status and would be able to be rehired without any negative status implications, although you would be required to file another H-1B petition to do so.
If you have any questions about your obligations as an H-1B employer, please feel free to reach out to your Ellis Porter attorney.
Telehealth Services
Physician Requirements: Physicians with IGA and Conrad 30 waivers who will provide telehealth services should be sure to thoroughly document their provision of telehealth services, including the date you started providing such services.
If you work for a VA as part of your IGA waiver service, you may provide telehealth services to patients outside the state of your facility.
If you have a waiver through HHS, the Appalachian Regional Commission, the Delta Regional Authority, or the Conrad State 30 Program, you may only provide telehealth services through your facility and only to patients in the same state as your facility.
H-1B Petitioning Employer Obligations: Employers who sponsored H-1Bs for physicians with IGA or Conrad 30 waivers may only allow those physicians to telework from their homes if you also allow U.S. workers in similar positions to telework from home.
Employers should document their telework policies and add a copy of the policy to the PA Files for all H-1B employees.
If the physician’s home is in the same Metropolitan Statistical Area (MSA) as that which was listed on the LCA, the employer does not have to file a new LCA or H-1B amendment petition BUT the employer must post a copy of the original LCA at the employee’s home for 10 days.
If the physician’s home is not in the same MSA, then the employer must do the following:
If the physician will be working from home for 30-60 days or less, and all DOL short-term placement requirements are met, the employer does not have to file a new LCA or H-1B amendment petition BUT the employer must post a copy of the original LCA at the employee’s home for 10 days.
If the DOL short-term placement rules do not apply, the employer must file a new LCA and an H-1B amendment petition before the physician starts to work from home.
Questions?
If you are a J-1 waiver physician, or the employer of a J-1 waiver physician, and you have any additional questions about how these new policies impact you, please contact a member of the Ellis Porter Healthcare Immigration Team and our attorneys will be happy to provide further clarification and assistance.
Learn more about Ellis Porter’s Healthcare Immigration Services ›
During these challenging times, Ellis Porter remains fully-staffed, fully-operational and fully-accessible to help you navigate the immigration impacts of COVID-19.
Visit the Ellis Porter COVID-19 Immigration Support Center ›