Maryland Bar Bulletin
Publications : Bar Bulletin : February 2008


 Bar Bulletin Focus

Immigration Law    

The socio-economic imbalance in the United States between the supply of and demand for health care providers requires a thoughtful reform of the laws governing the permanent immigration of foreign medical school graduates (FMG). Easing the two-year home-country physical presence requirement for FMGs in the U.S. pursuant to the J-1 visa program would help mitigate this imbalance. Our national health care system is approaching crisis levels due to the growth of medically-underserved populations, brought about in part by an infamous shortage of nurses and a more contemporary doctors-deficit phenomenon. Nevertheless, FMGs remain ineligible to adjust their status to that of Lawful Permanent Residents (LPR) without complying with the two-year rule or applying for one of several hyper-technical waivers of that requirement. Immigration policy should be expanded to allow FMGs to reside permanently in this country and to devote their medical skills to U.S. society, to which they are acclimated, culturally contributory and committed through professional, community and perhaps familial ties.

A growing consensus is that over the next 15 years, requirements for physician services will grow faster than supply, especially for specialist services. Projections by the U.S. Department of Health and Human Services (DHHS) suggest that by 2020, the total demand for doctors will increase to 976,000, a shortage of approximately 16,915 physicians per year over the next 13 years. During this same period, U.S. medical schools expect to graduate only 12,000 non-FMG doctors per year, leaving a bleak doctors-deficit of 63,900 by 2020. Moreover, these estimations mask the projected inadequacies in medical expertise, with specialties such as general surgery, urology, ophthalmology, cardiology, pathology, orthopedic surgery, otolaryngology, radiology and psychiatry seeing demand grow much faster than supply.

Currently, FMGs subject to the two-year rule may apply for a waiver of that requirement. Federal waivers may be requested by an Interested Government Agency seeking to fill a medical position in a designated Health Professional Shortage Area (HPSA) or Medically-Underserved Area or Population (MUA/P). The federal options currently fall within three distinct programs: Appalachian Regional Commission (ARC) waivers, Delta Regional Authority (DRA) waivers and DHHS waivers. State waivers may be requested by a State Department of Public Health likewise seeking to fill positions in local HPSAs or MUA/Ps designated as such by the DHHS. State waivers are administered by a program combining federal design with local implementation: the Conrad State 30 program, which expires on June 1, 2008.
An increase in FMG retention by the U.S. is a critical first-step in narrowing the gap between supply and demand in the nation’s most socio-economically valuable industry. Yet a cursory overview of the existing waivers programs reveals their inadequacy for fulfilling the anticipated 63,900 doctors-deficit. The ARC and DRA programs are limited by their applicability to certain counties in select states and to primary care practice. The DHHS program, despite its greater flexibility and discretion to influence Conrad programs, has thus far failed to resolve the national shortage of qualified physicians. Furthermore, each federal program requires FMG waiver recipients to work for three years in H-1B status pursuant to the terms of their waiver agreements prior to gaining eligibility for LPR status.

The Conrad waiver is the largest of the available medically-underserved waivers for FMGs, a disconcerting fact given that each participating state is capped at 30 waivers annually. This amounts to a total potential annual increase of only 1,560 doctors (inclusive of all 50 states, the District of Columbia and Guam). Therefore, a best-case scenario under the current waivers system is a mere reduction of the doctors-deficit from 63,900 to 43,620 (63,900 projected deficit – 1,560 FMG waivers per year x 13 years), in addition to the relatively few FMGs granted waivers under the ARC, DRA and DHHS programs. This projection is based upon a questionable assumption that the Conrad program will be extended beyond its current expiration date and remain a useable tool through 2020.

The U.S. health care system is unsustainable and the J-1 waivers program is ill-equipped to supply the balance of physicians required by 2020. Therefore, best-choice policy considerations demand that Congress reform the waivers system in three stages. First, the Conrad program should be extended indefinitely and its caps expanded from the unreasonable ceiling of 30 to no fewer than 100 physicians per state in the form of a new “Conrad State 100” program. This would provide upwards of the additional 3,355 physicians needed annually through the year 2020. Second, the federal programs should be reformed by merging the ARC, DRA and DHHS programs into a single system under the administration of DHHS, which most closely studies HPSAs and MUA/Ps and can most appropriately and flexibly distribute waiver allotments to those areas in cooperation with the Conrad programs. Moreover, the H-1B status requirement should be eliminated from FMG waiver agreements, and paths to LPR status for these physicians should be streamlined. Third, programs of questionable socio-economic benefit to the U.S., e.g., the diversity visa lottery and the H-1B numbers earmarked for fashion models, should be eliminated in order to expedite the foregoing expansions without violating the applicable numerical nonimmigrant and immigrant caps (which, on another day, should themselves be vastly expanded).

Despite the national benefits to be derived from a revised J-1 policy, the debate over the design, purpose and potential of the program remains stalemated. Responding to the imminent doctors-deficit crisis with increasingly restrictive J-1 policy proposals, such as the interim rule released by the DOS in June 2007, is pragmatically nonsensical yet somehow digestible in today’s socio-political environment. Regardless of a public desire to keep the two issues distinct, immigration and health care must be merged in civic debate, and the J-1 waivers program must be expanded to meet the demand of a medically-underserved population. Policy must respond to measurable reality, and this article hopefully makes clear the potentiality of an expanded J-1 waivers mechanism for drawing the supply and demand of qualified physicians into closer proximity within the U.S. health care economy.

Stuart Matthews is a second-year student at the University of Maryland School of Law. He concentrates his studies on immigration law and policy.

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Publications : Bar Bulletin: February 2008

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