The Immigration Ban's Potential Effect on Physicians

February 8, 2017

Your organization may be affected by the President's immigration "ban." Here's what you'll have to consider.

Recent actions taken by the President of the United States to "ban" entry to the U.S. of individuals from certain countries have affected, and may continue to effect, physicians and medical practices across the country.  According to the Association of American Medical Colleges, 260 doctors from the "banned" nations, which include Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia applied for residencies this past year and may not be able to practice in the United States as a result of the President's order.   Although the order is currently under scrutiny by the courts, it is unknown whether the ban will go back into effect, for how long it will remain in effect, what countries may be added to the ban, and whether or not physicians already legally in the U.S. from the banned/to be banned countries may be required to leave.

Politics aside, from a purely legal and economic perspective, healthcare employers must carefully consider how the "ban" and its potential expansion will impact their organization.  Here are some issues to consider:

1. What will happen to physicians who have signed contracts and accepted payment (signing bonus, relocation costs, stipends) and cannot remain in the U.S. (or return to the U.S.) to meet their service commitments? Should loaned/advanced amounts be waived?  What effect will this have on medical practices that have guaranteed repayment to a hospital under support agreements with recruiting hospitals?  Will repayment be sought against practices?  While some contracts may address this scenario, many will not. 

2. How should employers handle offers of employment to physicians impacted/potentially impacted by the "ban"? Should those offers be withdrawn? Should a healthcare entity negotiating a contract with a potentially "banned" physician select another candidate instead, even if less favorable? What countries should be avoided? Would the candidate have a right to claim a legal breach against an employer who terminates/voids a contract when the timeframe and potential expansion of the "ban" is unclear?

3. If practices are forced to terminate physicians who cannot start or continue their employment, how will this impact the practice? Will this trigger severance/buy-out obligations on the part of the practice? Can the practice afford the cost if there are multiple physicians involved?

4. How can medical employers compete if the shortage of new physicians increases? What compensation or benefits will need to be offered to available candidates to be competitive? Additionally, how will shortages be filled by existing physicians, who may or may not have the capacity to take on additional patients?  What if these physicians' contracts do not allow an employer to require additional call or services?  

All of the above are legal and contract issues which must be closely considered by medical employers, and there are many more that will arise as well.  This list does not even address the hardship, financial and otherwise, that will have an effect on those physicians and their families personally affected by the "ban."    

One of the greatest concerns about the "ban" for the entire healthcare community is the potential increased shortage of physicians in the US.  According to the AAMC, the 260 residents affected by the ban, would have each seen 3,000 patients, for a total of 780,000 patients.  This undeniably adds to an already existing physician shortage.  In particular, many foreign-born physicians take positions in rural communities in order to earn loan forgiveness or meet other immigration requirements.  This means the ban will likely hurt those Americans with already limited access to healthcare the most.

Healthcare employers should consult with counsel regarding existing contracts and plans for recruitment and hiring.  Even with political changes impacting the country, the business of healthcare must go on.