Delays in Foreign Medical Residents’ Visas Causing Headaches

June 28, 2018, 12:08 PM

Hospitals and medical centers are scrambling to cope with delays in getting foreign medical residents as a result of the Trump administration’s tightening of visa policies.

Starting this past spring, hospitals that sought H-1B skilled guestworker visas on behalf of medical residents started getting requests for additional information as well as denials from the federal government. The reason had to do with the wage survey data the hospitals were using to prove that they’re paying their foreign residents the prevailing wage.

U.S. Citizenship and Immigration Services recently appears to have reversed course and started approving the H-1B petitions that were outright denied or otherwise delayed.

But many residents still are in danger of having to push back their regular July 1 start date as a result of the agency’s earlier scrutiny of their petitions, immigration attorney Adam Cohen told Bloomberg Law. “It’s certainly been a very stressful situation for many,” he said.

“Your whole life gets turned upside down,” a Canadian medical resident whose H-1B petition initially was denied in April told Bloomberg Law.

The resident, who spoke on the condition of anonymity, was supposed to attend orientation at a Midwestern hospital the week of June 18. The USCIS reopened his petition and approved it within the past few days, but he’s still waiting in Toronto to receive the paperwork that will allow him to come to and work in the U.S.

As a result, he’s missed two weeks of pay and has been scrambling to make up the orientation and get other residents to cover what would have been his clinical shifts during the week of July 1.

“We continue to review issues pertaining to private wage surveys and will consider issuing additional guidance to our officers in the future, if needed,” USCIS spokesman Michael Bars told Bloomberg Law. “If a petitioner has questions or concerns about its case, it may send an inquiry to USCIS through appropriate channels,” he said.

Wage Survey Was Issue

The USCIS questioned hospitals’ use of a wage survey conducted by the Association of American Medical Colleges as the method for proving medical residents were paid the prevailing wage. The geographic areas covered by the AAMC survey were too broad to give an accurate picture of what residents should be paid, according to the agency.

Normally a wage survey would focus on a metropolitan statistical area, but the sample size in rural areas is usually too small, said Cohen, who practices with Siskind Susser in Memphis, Tenn. The AAMC tries to “get the most narrow wage survey that they can,” but it has to broaden the area if there are too few hospitals, he said.

Under Labor Department guidance, the prevailing wage must be based on a survey of an area that has at least three employers and 30 workers in that occupation, Cohen said.

The DOL—which has the first crack at making sure H-1B visa holders don’t displace U.S. workers or undercut their wages—has been accepting the AAMC survey for years, he said. Most other employers using the H-1B program can use government wage surveys based on occupational codes in the DOL’s Standard Occupational Classification system, but the SOC doesn’t have a code for medical residents, Cohen said.

This isn’t the first time the USCIS has taken a second look at wages on H-1B petitions, even after they’ve been approved by the DOL. Last year, the agency sent out a host of requests for additional evidence when employers listed that they planned to pay their H-1B workers entry-level wages.

Reversed Course

“A representative from the Department of Homeland Security told us last week that they are working with USCIS to get resolution for each of the remaining cases of medical residents applying for H-1B visas using AAMC prevailing wage data,” Matthew Shick, AAMC’s director of government relations and regulatory affairs, said in a statement provided to Bloomberg Law.

“We are hopeful that this resolution will allow medical residents to start programs on time next week without too much disruption,” he said.

“It is our understanding that there will be no formal announcement from USCIS, but that it has issued clarifying guidance internally to its staff conducting reviews,” Shick said. “Pending petitions will be processed,” allowing the AAMC survey as a basis for the prevailing wage, he said. “We have also heard reports of applications that had previously been denied now being approved,” he said.

The USCIS didn’t comment specifically on whether it was approving previously denied H-1B petitions.

‘Health Care Quality Issue’

“Now I’m seeing approvals after request for evidence response,” and “we’re also seeing reopenings” of denied petitions that are later approved, Cohen said. “That’s some positive news,” but without clear agency guidance on the matter, it’s uncertain whether the same issues will arise next year, he said.

And delays remain even in the wake of the agency’s policy shift.

This is “a health care quality issue,” American College of Physicians President Ana Maria Lopez told Bloomberg Law. Being down even one resident can put a great deal of stress on a program, she said.

ACP and several other health-care associations wrote a letter to the USCIS in late May asking that the agency reconsider its decision making. The issue also garnered the attention of Rep. Ami Bera (D-Calif.), himself a doctor.

There are limits on the number of hours a resident can work, so it’s not like the other residents can just work longer hours to make up for one resident’s absence, Lopez said. “It really means that patients aren’t seen,” she said.

And when one resident sees some 3,000 to 4,000 patients over the course of his or her residency, “the impact is huge,” Lopez said.

Foreign Nationals Needed

It’s not simply a matter of finding U.S. citizens to fill those slots, she said.

“We have a shortage of graduates,” leading to a potential shortage of 100,000 physicians by 2030, Lopez said. About 25 to 30 percent of residents in the U.S. are international medical graduates, she said.

“Foreign medical graduates are often incredibly well-trained,” Lopez said. Often, they’ve already completed medical residencies in their home countries, so they “come in with a wealth of clinical experience,” she said. They “provide a great service,” particularly in rural and underserved communities, she said.

“It feels like it’s just incredibly unfair,” the Canadian medical resident whose petition was initially rejected said. “We have worked our whole lives to do this,” he said. “All I’ve ever wanted to do is take care of people.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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