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USCIS Releases Guidance on Covid-19 Impacts for Conrad and HHS Waiver Foreign Physicians

U.S. Citizenship and Immigration Services has released guidance for foreign physicians who are subject to Conrad and HHS J-1 waiver provisions and their employers.  This guidance provides protections for physicians who are not able to sustain full-time work schedules due to Covid-19 related interruptions and also confirms the ability of foreign physicians to undertake telemedicine duties.

Lapses in Full-time Work Schedule Will Not Invalidate Status

The USCIS Memorandum provides relief for foreign physicians who have not been able to maintain a full-time work schedule due to “quarantine, illness, travel restriction or other consequences of the pandemic.”  In the usual case, any reduction in full-time employment would result in a violation of immigration status, and a reinstatement of the 2 year return home requirement under INA 212(e), for foreign physicians working under Conrad J-1 Waiver or HHS J-1 Waiver programs. 

This guidance is welcome protection for physicians who have not been able to maintain full-time status due to impacts of the pandemic.  The guidance provides that foreign physicians in these categories will not be penalized for lapses in full-time work and will not lose current immigration status or future immigration benefits such as adjustment of status to Lawful Permanent Resident (Green Card). 

Please note, however, that employer legal obligations have not been relaxed under the new guidance.  For example, if a foreign physician must be furloughed due to quarantine requirements or temporary clinic closures, the hospital or clinic would still be required to file a new Labor Condition Application and H-1B Amendment Petition to authorize the change in conditions.   

Telemedicine Visits Must Be Limited to In-State Patients

USCIS has confirmed that foreign physicians working under Conrad Waiver or HHS Waiver programs may participate in telehealth patient encounters.  These encounters must be limited to patients of the sponsoring facility and must be restricted to in-state patients. 

Hospitals and clinics across the nation have been rapidly expanding telehealth services and infrastructure, so it is very helpful for USCIS to formally confirm the ability of foreign physicians to participate in these programs.  Please keep in mind, however, that if foreign physicians are conducting telehealth visits from their homes, the employer may need to post LCA notices at the home work-site or may need to file H-1B Amendment Petitions to authorize the new worksite, as we have highlighted in prior Client Alert releases.  

The protections outlined in the USCIS memo are temporary.  The protection period runs from January 27, 2020, the beginning of the Public Health Emergency, until the emergency is declared over.