On May 11, 2002, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum relating to certain J-1 waivered foreign medical graduates during the COVID-19 national emergency. The memo, captioned “Temporary Policy Changes for Certain Foreign Medical Graduates During the COVID-19 National Emergency” was issued solely as guidance to USCIS officers with regard to H-1B physicians who received and are fulfilling either an Interested Government Agency (IGA) waiver or Conrad 30 waiver. Relating to the COVID-19 pandemic, the memo addresses two issues: (1) failure of these physicians to maintain a full-time work schedule, and/or (2) their provision of telehealth services.

More specifically, the temporary policy changes include the following:

• Effective January 27, 2020 – end of the Public Health Emergency
  • “USCIS officers will not consider…a failure [of the physician] to work full-time to be a failure to fulfill” the contractual full-time work requirement if the physician is “temporarily unable to work full-time due to quarantine, illness, travel restrictions or other consequences of the pandemic during the declared Public Health Emergency period…”
    • The memo notes that this temporary flexibility is limited and “only relates to the [physician’s] eligibility for future immigration benefits that would be affected by the re-imposition of the 2-year home residence requirement” resulting from a contract violation.
    • The memo does not grant a reprieve to employers with regard to H-1B requirements; these responsibilities remain in effect even during the effective dates of the temporary flexibility policy. As such, affected employers should consult qualified legal counsel before making any material changes in the terms and conditions of the physician’s employment, including but not limited to a COVID-19 related reduction in hours below full-time.
• Effective May 11, 2020 (i.e., the publication date the memo) – end of the Public Health Emergency
  • USCIS will allow IGA and Conrad waivered physicians to provide “telehealth” services during the COVID-19 Public Health Emergency (but see below).
  • Other than VA physicians, affected physicians must continue to provide medical services (even if telehealth) “through their contracting facility” located in the shortage area or, under the Flex 10 program, to patients who reside in a designated area.
  • Only affected VA physicians may “provide telehealth services to patients outside of the state of their contracting facility”(!)
  • USCIS “will not interpret the provision of such telehealth services to be a failure to fulfill” the terms of the employment contract under the statutory section–which is good because telehealth is still patient care and likely much-needed in shortage areas, especially now due to social-distancing measures.
  • An employer that offers an affected foreign medical graduate the option to provide telehealth services from home, must offer the same option to its similarly employed US workers.

While the memo may seem straightforward, it raises questions. As such, affected employers and/or physicians should seek fact-specific legal advice to address their issues at the earliest possible time.

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