Recruiting and Employing Foreign Nationals in Health Care Settings, Key Issues and Best Practices
By Richard S. Cooper, Esq.
Member, McDonald Hopkins LLC
By Isabelle Bibet-Kalinyak, Esq.
Associate, McDonald Hopkins LLC
Original Publish Date: November 8, 2016
As the physician shortage worsens, hospitals and health systems face unprecedented challenges to recruit and retain physician talent. Recruiting foreign nationals should be part of a comprehensive strategy to build and maintain a qualified, diversified, and engaged physician workforce. Lack of familiarity with immigration law and procedures should not deter employers from tapping into the skills of international medical graduates (IMGs), provided organizations exercise planned cautiousness in navigating the complexities of immigration law and its interdependence with labor and employment laws at the state and federal level. Taking into account the following key issues and best practices is paramount for health care executives.
- The American Association of Medical Colleges predicts that the effects of the physician shortage will be most acute in surgical specialties and rural areas. There are currently more than 6,000 primary care Health Professional Shortage Areas (HPSAs) and 4,000 mental health HPSAs. IMGs, who already represent more than 20% of first year residents and nearly 25% of practicing physicians, are more valuable than ever in the midst of this worsening physician shortage because they are more likely to pursue a career in primary care services and seek work in rural areas than their American-borne counterparts.
- IMGs depend on residency programs and U.S. employers to sponsor their temporary work visa and lawful permanent residence (LPR) status, the proverbial “green card,” in order to stay in the U.S. The most two common types of visas for foreign residents are the J-1 and the H-1B visa, which is the most prevalent for physicians post-residency or fellowship. Employers must understand a few concepts regarding these visas before recruiting foreign nationals in order to ensure that these individuals will be able to stay and work in the U.S. long enough to be productive for the U.S. employer.
- A J-1 visa holder must technically return to his or her home country for two years upon completion of training and will therefore require a J-1 visa waiver. State-based J-1 visa waivers are available but they are very competitive as each state only grants 30 waivers each year. Employers must therefore assess the likelihood of obtaining such a waiver and whether they can fulfill all the requirements before courting an otherwise very attractive candidate.
- H-1B visa holders need not return home for two years upon completion of residency or fellowship but they can only stay in H-1B status for a period of six years maximum, unless one of three narrow exceptions applies and the employer is willing to sponsor the foreign national’s green card. Employers are therefore best advised to evaluate this 6-year ticking clock and the potential paths to LPR status during the early stages of the recruitment process.
- Compliance with the Department of Labor and the United State Citizenship and Immigration Services (USCIS) immigration regulations requires meticulous documentation, including petition-specific document retention guidelines. Employers should establish initial and periodic training for personnel involved in recruiting and hiring foreign nationals, including the proper processing of Form I-9 for employment verification eligibility1 and non-discrimination laws based on national origin or citizenship status. For example, an employer is not allowed to ask a candidate whether he or she is a U.S. citizen or a green card holder. On the other hand, asking whether a candidate will require sponsorship for an employment visa now or in the future is permissible.
- Financial and administrative penalties for the employer can accrue exponentially, particularly since the scope of an investigation is not limited to the allegations underlying the original complaint of an aggrieved party. Fines range from $1,000 to $35,000 per violation and other penalties encompass debarment from approvals of any immigration petitions for at least one year, which can be catastrophic for certain employers. Thus, being flagged as a “willful violator” may hinder the employer’s recruitment efforts for years. Foreign nationals and their families may themselves face dramatic consequences up to deportation.
- Employment agreements are an area where the interdependence between immigration law and labor and employment law is most visible and renders the literal use of template employment agreements for foreign nationals risky because the various visas and J-1 state waivers have inherent statutory restrictions. For example, under Ohio law, the employment agreement of a physician with an ongoing J-1 state waiver cannot contain any non-compete terms and obligations.
- Employers may at times be tempted to use contractual terms placing the burden of immigration filing fees and legal costs on foreign nationals, either directly or indirectly through claw back provisions. As described in greater details in Smart Business, this approach is prohibited for certain types of visa applications. For example, employers must bear the entire cost of H-1B visa petitions. Who can or should pay for immigration fees and costs should therefore be addressed on a case by case basis.
As illustrated by the above key points, healthcare executives and in-house lawyers that understand the interplay between staffing, employee retention, immigration regulations, and labor and employment laws can best further the goals of their organizations to enhance access to quality patient care.
Richard Cooper provides legal representation to a broad range of hospitals, other healthcare facilities and physician groups across the United States. He has been listed in The Best Lawyers in America for health law for twenty-three consecutive years and selected for inclusion in Ohio Super Lawyers (2005-2015).
Isabelle Bibet-Kalinyak's practice focuses on health care law (transaction and compliance) and business immigration, primarily in health care settings. She can be reached at 216-348-5736 or ikalinyak@mcdonaldhopkins.com
Visit the McDonald Hopkins LLC web site at www.mcdonaldhopkins.com.
1See I-9 Handbook for Employers, Manual Reference No. M-274