Written by Colleen F. Molner, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
The healthcare industry in the United States is in significant need of professional staff.
The United States is expected to face a shortfall of 37,800 to 124,000 doctors by 2034, according to a 2021 study conducted by the Association of American Medical Colleges, while the “total supply of RNs decreased by more than 100,000 from 2020 to 2021,” a study published in Health Affairs in early 2022 found.
There are many reasons for the shortages, including an increase in employees leaving the industry because of the effects of the COVID-19 pandemic, as well as a “significant segment of the nursing workforce reaching retirement age,” with more than a million RNs projected to retire by 2030, according to Health Affairs.
Yet, many barriers constrain foreign nationals seeking to work in the United States in the healthcare industry. Below is an analysis of nonimmigrant work visa options, Conrad 30 waivers and the green card process for healthcare workers as well as potential legislative solutions to address the current shortfall.
Nonimmigrant visa options for healthcare workers
Nonimmigrant visas are temporary in nature, with specific periods of validity. They are employer-specific and may be position-specific and location-specific, as well.
There are multiple nonimmigrant work visa options for physicians, physical therapists, occupational therapists and other specialized infrastructure healthcare personnel. However, there are fewer pathways available for nurses.
The most common nonimmigrant visa options for healthcare workers include:
F-1 student visas
Foreign nationals are eligible for an F-1 visa if they are attempting to enter the country for the purpose of studying at a “Student and Exchange Visitor Program (SEVP)-certified school,” which includes most United States colleges and universities. To receive an F-1 visa, the foreign national must enroll in a full-time program that culminates in a degree or diploma from the U.S. college or university they are attending.
Students on F-1 visas are eligible for Optional Practical Training (OPT) during/after their degree program, which is typically valid for one year. Those with STEM degrees are eligible for a two-year extension. Some F-1 students can also obtain Curricular Practical Training (CPT) to work while in school, as well, as an integral part of the curriculum.
Foreign national nurses and other personnel can be employed by a healthcare system only while their OPT is valid. They must thereafter switch to a different nonimmigrant visa category or begin the green card process, if either is applicable.
TN work visas are available for citizens of Canada or Mexico in certain professions that are outlined in the United States-Mexico-Canada Agreement (USMCA, formerly known as NAFTA).
Nurses, medical laboratory technologists, physical therapists, occupational therapists and pharmacists from Mexico and Canada all typically qualify to enter the United States with a TN visa, while physicians are eligible for this category only if they are teaching or researching.
TN visas are eligible for an initial period of stay of three years and can be extended indefinitely in three-year increments. Spouses of TN visa holders are not eligible for work authorization.
H-1B specialty occupation work visas
The H-1B nonimmigrant visa category is available for U.S. companies to fill a “specialty occupation” with a qualified foreign national. A specialty occupation is one that generally requires a bachelor’s degree or higher, or its equivalent, as a minimum, entry-level credential.
A legislatively established statutory cap limits approvals of new H-1B petitions in a fiscal year to 85,000, with 20,000 of that total reserved for foreign nationals who have obtained an advanced degree or higher from a U.S. college or university.
Certain institutions and foreign nationals, however, are “cap-exempt” and may be eligible to file an H-1B petition outside of the numerical limits. This exemption typically applies to:
- Beneficiaries who are employed by or at institutions of higher education
- Nonprofits related to or affiliated with an institution of higher education
- Nonprofit research organizations or a governmental research organization
- J-1 physicians who have received certain home residency waivers
In most situations, an H-1B petition can be approved for a maximum initial period of three years and may be extended for an additional three years longer. Spouses of H-1B visa holders may be eligible for work authorization, in some circumstances. In certain circumstances, the H-1B status can be extended even further than the usual six year maximum.
Nurses are not typically eligible in the H-1B visa category, as a bachelor’s degree is not usually an employer’s minimum education requirement, however there has been some recent success in obtaining H-1B visas for nurses based on a change in the minimum education requirements by the Department of Labor. Depending on the employer’s minimum requirements for the nursing position, and the nurse’s qualifications, the cap-exempt H-1B may be an ideal pathway that also helps healthcare employers meet the demands they are facing for nurses.
O-1 visas are reserved for foreign nationals who are highly talented or have reached a notable level of acclaim in the fields of science, art, education, business or athletics.
The foreign national must be extraordinary in their field in terms of knowledge, ability, expertise and accomplishments, and the position being offered must require the services of an “extraordinary” person.
In order to qualify under the O-1 nonimmigrant visa category, a foreign national must prove their achievements have been recognized in the field through receipt of a major, internationally recognized award or by meeting at least three of the below criteria:
- National/international awards
- Memberships that require achievement
- Published material about foreign national
- Judge of work of others
- Original contributions of major significance
- Authorship of scholarly articles
- Employed in critical/essential capacity
- High salary compared to others
O-1 visas are usually approved for an initial stay of three years and can be extended indefinitely in one-year increments.
J-1 exchange visitor visas and Conrad 30 waivers
A J-1 visa permits foreign nationals from any country to come to the United States in an exchange program designated by the U.S. Department of State. The foreign national must enter the United States for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training.
Physicians may obtain J-1 status and enter the United States to participate in graduate medical education and training (residency and fellowship). Spouses of J-1 visa holders may also obtain employment authorization.
The J-1 visa category requires a foreign national physician in the U.S. for graduate medical training to return to their country of origin for at least two years following the completion of their J-1 program before applying for an H-1B visa or permanent residency in the U.S. That requirement can be waived for physicians by the applicable state, in a process known as the Conrad 30 waiver.
Each state can only grant 30 Conrad waivers per year. Physicians must receive the recommendation of the applicable state’s health department, or its equivalent, as well complete the Form DS-3035, J-1 Visa Waiver Review Application and submit it to the Department of State (DOS), to apply. Some states regularly distribute all of their 30 Conrad waivers per year, oftentimes with a waiting list, while other states have spots available throughout the fiscal year.
If waived, the applicant is then eligible to receive an H-1B visa, after completing the necessary steps with United States Citizenship and Immigration Services (USCIS), which include agreeing to practice in a Health Professional Shortage Area or Medically Underserved Area for at least three years. Their spouse and/or dependents are also eligible to change into H-4 status.
Once those three years are complete, the physician can apply to adjust status to receive a green card.
Green card process for healthcare workers
Most healthcare workers become eligible for a green card through an offer for a permanent full-time position through their employer.
The green card process can begin once the offer is received, with most healthcare workers falling into the EB-1 (priority workers), EB-2 (advanced degree professionals and FNs of exceptional ability) or EB-3 (professionals, skilled and unskilled workers) preference categories.
For those in the EB-2 and EB-3 preference categories, applying for a green card is usually a three-step process:
- Step 1: Labor Certification through the Department of Labor (referred to as the PERM Labor Certification)
- Step 2: The filing of an I-140 Immigrant Visa Petition with USCIS
- Step 3: The foreign national and applicable family members file the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, if a green card is available
The employment-based green card process can be lengthy, with current estimates of two to three years from start to completion, which can oftentimes extend longer depending on the circumstances.
However, many healthcare workers are often eligible to skip the PERM Labor Certification, which is typically the longest and most costly part of the green card process.
Doctors can bypass this step by applying for a Physician National Interest Waiver (PNIW). In order to be eligible for a PNIW, applicable foreign nationals must:
- Agree to work full-time in a health shortage area (Health Professional Shortage Area/Medically Underserved Areas) or with the Veterans Administration (VA) for five years. Primary care or specialty care can both meet the requirement.
- The state of employment must determine the position is in the public interest, with rules and documentation varying on a state-by-state basis.
The PNIW allows doctors to file their Form I-140 and Form I-485 together, if an immigrant visa is available, and can either be filed as a self-petition by the doctor or filed by an employer. USCIS will not approve the Form I-485 until the five-year minimum term of employment is fulfilled.
Similarly, nurses and physical therapists can have a Schedule A, Group I immigrant visa petition filed by an employer on their behalf. This group has been “recertified” by the Department of Labor (DOL), meaning employers are “not required to conduct a test of the labor market and apply for a permanent labor certification.” Instead, healthcare providers sponsoring a nurse or physical therapist for a green card must submit an “application for permanent labor certification to USCIS in conjunction with the petition.”
It is not uncommon for employers to initiate a green card application for nurses through this process before they are in the United States, due to the limited temporary work visa options available for them under our immigration system. Many healthcare employers have such a high demand for nurses that they are willing to start the green card process and wait the lengthy government timelines for them.
Potential legislative measures
Multiple bills have been proposed in Congress that relate to the healthcare worker shortfall.
The first, entitled the Healthcare Workforce Resilience Act, is a bipartisan bill proposed by Senators Richard Durbin (D-IL), John Cornyn (R-TX), Patrick Leahy (D-VT), Todd Young (R-IN), Christopher Coons (D-DE) and Susan Collins (R-ME) in 2021 in response to the COVID-19 pandemic.
The bill would “recapture” as many as 40,000 unused immigrant visas for nurses (25,000) and physicians (15,000). The spouses and dependents of the healthcare professionals would also be eligible to receive a green card.
The per-country cap would not be applicable to the green cards recaptured by this bill, according to a summary released by the sponsoring senators, and would be issued in order of priority date.
Per the summary, “One-sixth of our healthcare workforce is foreign-born … Immigrant nurses and doctors play a vital role in our healthcare system, especially in medically underserved areas of our country.”
The summary continued: “There are thousands of doctors who are currently working in our country on temporary visas with approved immigrant petitions and are stuck in the green card backlog. While they are already serving our communities, these doctors face many limitations due to their temporary status, such as not being able to take a shift at a second hospital where they may be desperately needed.”
Moreover, Senators Collins, Amy Klobuchar (D-MN), Jacky Rosen (D-NV) and Thom Tillis (R-NC) introduced The Conrad State 30 and Physician Access Reauthorization Act earlier this year. This bill “extends the Conrad 30 program for three years (and) improves the process for obtaining a visa,” as well as “increases the number of waivers that a state may obtain each fiscal year from 30 to 35 if a certain number of waivers were used the previous year, and provides for further adjustments depending on demand” according to a press release from the Senators as well as a summary of the text.
As mentioned above, the Conrad 30 program waives the requirement that J-1 physicians return to their country of origin for at least two years following the completion of their J-1 training.
The bills are supported by a variety of advocacy groups, including the American Hospital Association as well as the American Medical Association. The bills could help address the national shortage of healthcare professionals. However, unfortunately, neither appears close to attaining the requisite support to pass both Houses of Congress. Therefore, the future of both remains in doubt.
Further, the H-1C nonimmigrant visa was previously available “to address the shortage of nurses in the United States.” Similar to the concept of the Physician Conrad 30 Waivers, nurses who had a full license and were qualified under requisite state laws were eligible to receive an H-1C visa for a period of up to three years to work in a “Health Professional Shortage Area.”
The H-1C program was first created by Congress in 1999 and was allowed to expire a decade later. With the current nursing shortfall and employers desperate to meet the demand for nurses, now is an even more appropriate time than ever for Congress to consider bringing back and re-authorizing the H-1C nonimmigrant visa classification.