New licensing requirement for foreign physicians should raise red flags for immigration lawyers, as well as other attorneys interested in equal protection and access to quality medical care.

A veritable perfect storm has created physician shortages in Texas. Contributing factors include budget cuts, lack of graduate medical education programs, an anticipated influx of patients under the Patient Protection and Affordable Care Act and a reduction in the number of Texas physicians accepting new Medicare patients, according to “Where Have All the Doctors Gone?” in the August edition of Texas Hospitals magazine, published by the Texas Hospital Association.

The number of Texas physicians accepting new Medicare patients dropped from 66 percent in 2010 to 58 percent in 2012, notes a recent Texas Medical Association survey.

A recent study in The New England Journal of Medicine regarding states’ primary-care capacity to absorb the Medicaid expansion in 2014 ranked Texas 47th in its ability to care for the new beneficiaries; that’s because of the state’s current high uninsured rate and low per-capita supply of primary care physicians.

One way to improve access to care is to force some physicians to provide it. On Sept. 1, the Texas Medical Board (TMB) began applying a new mandatory-service requirement for licensure to certain foreign physicians. The board’s move is based on the enactment of Senate Bill 189. The legislation added Texas Occupations Code §155.0045, which creates additional eligibility requirements for medical licensure in the state for certain foreign nationals. The unfortunate consequence of the new law will be to hinder Texas’ ability to compete for foreign physicians.

The new mandatory-service requirement for medical licensure applies to those who are not U.S. citizens, legal permanent residents or conditional permanent residents. To gain licensure in Texas, they must practice full-time for three years in medically underserved areas, health professional shortage areas, or at a Texas institution maintaining a graduate medical education program. Full-time practice is defined as a minimum of 20 hours a week for 40 weeks duration during the applicable year.

An exemption from the service requirement is available for applicants who either 1. practiced medicine in Texas for at least one year before Sept. 1 under a postgraduate training permit, temporary license or limited license; or 2. submitted an initial application for full licensure prior to Sept. 2.

International medical graduates who plan to meet their two-year training requirement by working under a faculty temporary license may apply those two years to the mandatory service requirement, according to the Physician Applicants FAQs listed on the TMB website.

Bad Idea

This requirement will hurt recruitment of foreign physicians to the Lone Star State by making practicing in Texas less attractive than practicing in other states. Here’s why.

International medical graduates starting their residency programs in the United States typically use the J-1 exchange visitor or H-1B specialty occupation non-immigrant visa. (The O-1 extraordinary ability visa is also an option, but it’s not really appropriate for most residents, unless they are physicians with an international or national reputation for excellence.)

International medical graduates with J-1 visas are subject to a two-year foreign residency before they can obtain an H-1B visa or U.S. permanent residence. (The J foreign residency requirement means they have to leave the United States, typically, and be outside of the United States in their home country for two years before they can work in this country.) The government can waive that requirement in limited circumstances, which normally require three years of service in a health professional shortage area or medically underserved area. In Texas, at least 30 waiver slots are available each year via the Conrad 30 program administered by the Texas Department of State Health Services. In the J-1 category, a residency program must be sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG).

Physicians using the H-1B or O-1 non-immigrant visa categories for their residency programs do not have a foreign residency requirement under U.S. immigration law. Thus, service in a health professional shortage area or medically underserved area is normally not a part of the process to acquire permanent residence in the United States in the future.

In addition, based on a change in the law, the H-1B visa category has become the non-immigrant visa category of choice for residency programs. So, what H-1B resident physician, when faced with an option to enter a residency program in a state without a mandatory service requirement, would choose to come to Texas, which has such a requirement?

The requirement also may be unconstitutional. There have been numerous constitutional challenges of various state licensure laws prohibiting lawful non-immigrants from obtaining state licenses. In July, the 2nd U.S. Circuit Court of Appeals found that New York Education Law §6805(1)(6) violated the 14th Amendment’s equal protection clause and was unconstitutional. In Dandamudi v. Tisch, the dispute concerned §6805(1)(6), which prohibited individuals, other than U.S. citizens and lawful permanent residents, from obtaining pharmacists’ licenses in New York.

Perhaps the time is ripe for a challenge to Texas’ new mandatory service requirement. That might be true despite the 5th U.S. Circuit Court of Appeals’ 2005 decision in LeClerc v. Webb, upholding the Louisiana State Bar Association’s restriction of admission to applicants who were U.S. citizens or “a resident alien thereof.” Many of the comments as to immigration status in the LeClerc case were incorrect.

Also, cases in California and Florida regarding the ability of undocumented law school graduates to obtain a license to practice law are moving forward, providing further momentum on the side of a constitutional challenge.

In addition to a potential constitutional challenge, prudence counsels a change in the law. In the upcoming state legislative session, the serious consequences of the state’s physician shortages should create incentives, not the contrary, to encourage physicians (including international medical graduates) to enter residency programs in the state.