The introduction of the COVID-19 virus into American society has severely stretched the resources of our health care facilities and providers. By the very nature of the epidemic, physicians and allied health care providers are not proportionately distributed among areas of greater and lesser need. Understandably, facilities have discussed sharing providers based on need as the crisis unfolds. Many of the providers who could help are H-1B foreign workers within the U.S. health care system.
In certain media, health care and even legal circles, there is a notion that H-1B physicians and allied health care workers’ “hands are tied” by visa regulations and they cannot be quickly moved among health care facilities. While there is some truth to this, it is also true that federal administrative law is replete with exceptions to the rules.
Employers who file an H-1B petition with the U.S. Citizenship and Immigration Services (USCIS) for a foreign physician or allied health care worker must first file a Labor Condition Application (LCA) with the U.S. Department of Labor (USDOL). Among other things, the LCA lists all locations where H-1B employees are permitted to work. At times, transferring an H-1B employee to a new location may require the filing of a new LCA with USDOL and then an amended H-1B petition with USCIS. However, in asserting that H-1B workers are tied to the LCA sites, some commentators seem to have overlooked the USDOL’s definition of the “area of intended employment” and also the USDOL’s special provisions for short-term placement of H-1B workers (see 20 CFR §655.715 and §655.735).
Regarding an LCA’s area of intended employment where an H-1B worker is permitted to work, it should be noted this location is not restricted to the employer’s originally stated jobsite. Rather, the allowable area of work for an H-1B health care provider is any location within normal commuting distance of the approved place of employment. The regulations acknowledge that the distance of a normal commute varies by place. For LCA purposes, this is often any location with a Metropolitan Statistical Area, a county or even a multicounty area. If an employer chooses to move an employee within such an area, neither a new LCA nor an amended H-1B petition is required as long as the original LCA is posted at the new jobsite. Normally, this posting must be done on or before the date of the employee’s move. However, under recent USDOL COVID-19 guidelines, the posting can now be made “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location.”
In addition, the USDOL’s special provisions for short-term placement of H-1B workers allow health care employees to be placed at sites outside the area of intended employment that are not listed on the LCA for up to 60 days per year in the aggregate. There is no need to file a new LCA nor an amended H-1B petition.
Taking USCIS and USDOL regulations together, the following are examples of how H-1B health care providers may be immediately transferred between facilities based on medical need.
Example 1 – Transfer Within the Area of Intended Employment:
Hospital A and Hospital B are both located within the area of intended employment. Hospital A, the original H-1B employer, must remain the H-1B physician’s employer at all times. Hospital B requests the assistance of the H-1B physician from Hospital A. Hospital A transfers the H-1B physician to Hospital B’s worksite. Hospital B cannot compensate the H-1B physician. The LCA is posted at the new worksite per USDOL’s COVID-19 guidance.
Example 2 – Transfer Outside the Area of Intended Employment:
Hospital A and Hospital B are not located within the same area of intended employment. Hospital B is located outside “normal commuting distance” from Hospital A. Hospital B requests the assistance of the H-1B physician from Hospital A. Hospital A transfers the H-1B physician to Hospital B’s worksite for up to 60 days. Hospital A, the original H-1B employer, must remain the H-1B physician’s employer at all times. Hospital B cannot compensate the H-1B physician. If applicable, Hospital A must pay the H-1B physician’s daily travel, lodging and incidental expenses, in addition to the H-1B physician’s regular salary. The H-1B physician must maintain a dedicated workstation at Hospital A during the time spent at Hospital B’s worksite. The physician must also maintain their residence used while working at Hospital A.
In a medical crisis, application of the above rules allows health care facilities to transfer H-1B physicians and allied health care providers at a moment’s notice, as long as all parties agree. Should the crisis persist, the 60-day short-term placement period is sufficient to allow the filing of a new LCA and amended H-1B petition by the original employer. It is also sufficient to allow another hospital in need to file an LCA and concurrent employment H-1B petition should circumstances warrant.
The above is a general overview of legal solutions to a medical crisis that may require the sharing of H-1B health care personnel. There are other factors involved, such as credentialing or privilege issues, reciprocal services agreements between facilities and some ancillary immigration considerations. The transfer of H-1B employees should always be done in consultation with an immigration attorney. Finally, other rules apply to health care providers in TN or O-1 visa status. Warner attorneys are always here to help with your health care law and immigration law needs. If you have a specific question about this update, please contact Michael Wooley