In New York and elsewhere across America, physicians and nurses are overwhelmed with patients suffering from COVID-19. “Nurses Die, Doctors Fall Sick and Panic Rises on Virus Front Lines,” read a recent headline in the New York Times. Relaxed immigration policies could provide a vital boost to efforts to save American lives, according to analysts.
To better understand current shortcomings in U.S. immigration law and possible solutions that would bring more healthcare professionals to the front lines in America, I interviewed William Stock, a founding member of Klasko Immigration Law Partners.
Stuart Anderson: The State Department recently stated that eligible foreign healthcare workers could contact U.S. consulates. What are the practical limitations today that would prevent a foreign physician from getting a visa to America to help fight COVID-19?
William Stock: While it was welcome news that the consulates would still be open for foreign healthcare workers, the practical matter is that U.S. immigration regulations are both inflexible and time-consuming. Because the number of professional-level working visas – H-1B visas principally – is limited per year, the only employers who could even think of sponsoring a foreign physician are those exempt from that limit. Academic medical centers and nonprofit teaching hospitals are exempt from the H-1B cap, while many community hospitals and other healthcare organizations are not.
Foreign physicians also face credentialing restrictions under the immigration laws. For example, even though most states will give a physician licensed in Canada a medical license in their state, the immigration regulations require additional credentialing tests – the United States Medical Licensing Examination (USMLE). During the crisis, the exams had to be canceled because they must be offered in-person.
Anderson: What are the practical obstacles for foreign nurses?
Stock: Nurses face even stricter limits than physicians, as most nursing positions are not eligible for the temporary H-1B visa. As such, employers needing nurses need to sponsor them directly for permanent residence, a process that takes 18 months minimum under normal circumstances. In addition, strict limits on the number of skills-based immigrants (employment-based green cards) per year to the United States have created a years-long quota backlog, meaning many nurses would take three years or more to be able to get to the front of the line and be able to immigrate.
Anderson: What are the issues facing foreign doctors currently working in the United States to go work in New York City or another area with an urgent need for doctors?
Stock: Doctors on H-1B visas are restricted to working for the particular employer who sponsored their visa, and even that employer cannot send the physician to work in a different area of employment without complying with Department of Labor regulations. U.S. Citizenship and Immigration Services (USCIS) issued a binding precedent that merely changing an employee’s location requires a whole new H-1B filing, meaning that a physician would face major bureaucratic hurdles to change locations in response to the current crisis.
Anderson: Aren’t there foreign physicians who are treating American COVID-19 patients right now but are stuck in such long backlogs they may never receive a green card? Wouldn’t it be reasonable to help these physicians secure green cards (permanent residence) and if they die fighting to save American patients to guarantee help for their surviving family members?
Stock: You’re correct that thousands of physicians from India are currently trapped in immigration limbo, waiting for ten years or more for their “place in line” to be reached due to green card quotas. During that time, they continue to be on temporary visas, and their family members’ status is dependent on their status. If one of those physicians becomes infected treating patients and passes away, the family will be left without immigration status.
Anderson: What are the issues confronting healthcare workers who have H-4 status or DACA (Deferred Action for Childhood Arrival)?
Stock: The Supreme Court is currently considering the administration’s authority to terminate DACA on the basis that the program was illegally authorized by President Obama. Several lower courts have held that the program was legal and within the president’s discretion, so the Trump administration could end the program but not on the grounds that it was illegal. The Association of American Medical Colleges filed a brief in the case pointing out that 27,000 DACA recipients are employed in health care, including over 200 physicians and physicians-in-training.
A separate lawsuit is challenging the work authorization of about 90,000 H-4 spouses stuck in green card backlogs. If these programs are wound down or terminated over the summer, critical healthcare workers will lose their ability to work just as they are needed most in the aftermath of this crisis, as patients return to their healthcare providers once the virus spread is under control.
Anderson: What steps could the Trump administration take on foreign physicians and nurses that would save American lives?
Stock: Given the challenges many healthcare workers have in today’s environment, USCIS should give increased flexibility and automatic extensions of deadlines and status. Britain’s immigration authorities recently issued a blanket extension of status for all temporary visa holders; USICS could do something similar.
USCIS could issue a blanket extension of status for temporary visa status expiring in the next 90 days. That extension would include extending the work authorization of healthcare workers whose temporary visa authorizes their employment. USCIS could also issue blanket extensions of various classifications of employment authorization documents, similar to ones they publish annual in the Federal Register for persons holding Temporary Protected Status.
Many critical workers in healthcare systems in New York – doctors and nurses, but also respiratory therapists, other allied healthcare professionals and especially critical support personnel like orderlies, food service workers and janitors – are on time-limited work authorization because of their current status. If they lose employment authorization, New York hospitals will lose critical trained staff at the worst time.
USCIS and the Department of Labor could collaborate to waive regulations that restrict sponsored physicians from changing locations, which now stops them from going to hospitals where the need is greatest. Most importantly, USCIS could deem any individual whose status in the United States expires or is invalidated within the next 90 days to nevertheless be in a “period of stay authorized” by the Secretary of Homeland Security, since such individuals cannot currently leave the United States due to reasons beyond their control. These administrative actions have been taken in the past in response to natural disasters, such as Hurricanes Katrina and Sandy, or events like 9/11.
Anderson: What actions do you think Congress could take?
Stock: If the administration thinks it lacks the authority to do any of the things past administrations have done, like issuing blanket employment authorization extensions, Congress should clearly grant that authority and even order the administration to use it on behalf of healthcare workers. Such measures are not unprecedented. Congress directed the former INS [Immigration and Naturalization Service] to designate nationals of El Salvador as eligible for Temporary Protected Status and changed the asylum law to include forced abortion and sterilization in response to administrative refusal to recognize those actions as grounds for asylum.
Congress should also consider broader measures, such as making additional temporary visas available to skilled healthcare workers and address the decades-long wait for skills-based immigration. An “emergency supplement” of permanent visa numbers for skilled workers generally would help protect not only healthcare workers but also the technologists and others working to maintain the critical infrastructures that allow American businesses to operate with remote staff (and thus continue to keep workers on payroll).
In addition, Congress should look to provisions passed after the 9/11 attacks as a model to provide “special immigrant” visa petitions for the families of nonimmigrant workers who are victims of coronavirus while stuck in these visa backlogs.
Anderson: What about the role of U.S. Citizenship and Immigration Services during this crisis?
Stock: Congress, and parts of the administration, have acted swiftly to provide relief for businesses and workers in response to the current pandemic. USCIS has been notably absent from those actions, providing very limited relief for employers and workers in healthcare and other industries.
On April 3, 2020, the American Immigration Lawyers Association filed a lawsuit asking a court to order USCIS to extend any and all immigration-related deadlines and expirations of status to the benefit of U.S. employers, lawfully admitted foreign nationals and the public.
This is a critical time for our country, where we are all being asked to do our part – whether that is on the front line as healthcare workers or simply staying six feet apart from each other in the checkout line. Immigrants in health care are on the front line, willingly risking their lives to help us survive this terrible disease. We shouldn’t allow visa restrictions to prevent them from doing their jobs or make it impossible to provide the lifesaving help so many Americans desperately need.
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