INS FINALLY RELEASES PHYSICIAN NATIONAL INTEREST WAIVER REGULATIONS On November 12, 1999, President Clinton signed the Nursing Relief for Disadvantaged Areas Act of 1999 into law. Along with creating a program for nonimmigrant visas for nurses, the law also reinstated national interest waivers for physicians. Until August of 1998, physicians who agreed to work in medically underserved areas could obtain a national interest waiver. That month, the INS released a decision severely limiting the use of national interest waivers by physicians. Under that decision, Matter of New York State Department of Transportation, the impact of the provision of medical services to a single needy community was not national enough in scope to warrant a national interest waiver.
Realizing that this opportunity for a waiver was one of the most effective ways to ensure provision of medical services to underserved communities, Congress created this new waiver. The law directs the INS to grant a national interest waiver for physicians who agree to work in underserved areas. For many months now those who might benefit from the law have been in limbo waiting for the INS to release regulations. This week those regulations were finally released. The regulations will become effective on October 6, 2000; however, the INS will continue to accept comments until November 6, 2000.
The law covers two situations. First, the law allows physicians who applied for a national interest waiver before November 1, 1998, whose application has not been denied, to obtain a waiver with three years service in an underserved area. This addresses those physicians who applied for a waiver before it became clear that the INS would no longer grant them and allows them to obtain a waiver on the same conditions that would have applied had it not been for the New York State Department of Transportation case. Second, for physicians who have not before applied for a waiver must work for five years in an underserved area to obtain a waiver.
Which Physicians Can Use the New Law?
The first step in qualifying for the waiver is to work in a qualifying area. These are Veteran’s Administration hospitals and areas that have been designated by the Department of Health and Human Services as Medically Underserved Areas (MUAs) and Health Professional Shortage Areas (HPSAs). Second, the physician must be working in the proper field. While the law does not limit practice areas, instead requiring only that the physician work in a HPSA or VA facility, HHS regulations do define a shortage area in part by the type of medical practitioner. The INS has lifted this restriction from HHS regulations and inserted it into these, where it lacks a statutory basis.
This means that the waiver is limited to physicians practicing in the following areas: family and general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry. Many will be unhappy with this limitation, especially as it applies to the states. States can allow specialists to participate in the State 20 program and many will argue they should be able to do the same under this program. Also, physicians working at VA hospitals are not limited in their practice areas, adding more support for the argument that the INS wrongly inserted this restriction into the regulations.
The INS anticipates that most physicians who apply for the waiver will already be in the US, but will allow physicians to apply for the waiver from abroad, so long as they meet all the requirements to practice medicine in the US. For example, this would allow a physician who had received graduate medical training in the US but was not able to obtain a waiver of the home residency requirement to seek a waiver from abroad.
Time to Complete Service in Underserved Area
Some physicians can qualify for a waiver with three years of service; most, however, will require five years. Under the regulations, the three years of service must be completed within a four-year period. The five years of service must be completed within a six-year period.
If the physician, other than those on a J-1 visa, is work authorized, for example, in H-1B or O-1 status, the INS will begin counting the period of qualifying medical service on the date that the I-140 and national interest waiver petition is approved. If the physician must first obtain employment authorization, the qualifying period of service begins on the date the INS issues an employment authorization document.
Physicians cannot accrue qualifying service while in J-1 status. Therefore, they must obtain another status beforehand. Many J-1 physicians will obtain a waiver of the home residency requirement by working in an underserved area for three years in H-1B status. For these physicians, the three or five-year period to obtain the national interest waiver will begin when they begin work for their J-1 waiver. In other words, they will not be made to work for three years for the J-1 waiver and then another five years for the national interest waiver, but will have to work for only a total of five years (or three years if there was a waiver application filed before November 1, 1998).
Who Can Provide the Attestation?
The law requires that to obtain a waiver the physician must obtain an attestation that their work is in the public interest. This attestation can be provided by any federal agency, so long as the agency has knowledge of the physician’s skills, and have made similar attestations in the past.
While the law allows “a department of public health in any State” to provide an attestation, under the regulation, only the central State department of health or its equivalent can provide the attestation. The INS felt that to allow any health department within a state to provide the attestation would create a situation in which there was no central authority, and wanted to avoid that. The regulation notes that nothing prevents a local health department from urging state health departments to seek a waiver for someone. This is the situation with J-1 waivers. However, this is not what the law says. When passing a law Congress can be assumed to have chosen its language carefully, and its language should be given effect. One can easily imagine a situation in which the central state government does not comprehend a community’s medical needs and is unwilling to attest for a physician the community desperately needs.
Finally, the agency can provide attestation only for a physician that will work within its jurisdiction. This will not be an issue for attestations from federal agencies, and its application to the states is more than sensible – it means that the California department of health cannot provide an attestation for a physician working in Arizona.
Waiver Applications Filed Before Law Was Enacted
If a physician’s national interest waiver application was denied and the denial became final before November 12, 1999, the physician can obtain a new national interest waiver only by filing a new application under the new law and regulations. However, if the waiver application was filed before November 1, 1998 and the physician appealed the initial denial to the Administrative Appeals Office or to a federal court, and the appeal was still pending on November 12, 1999, the case will be remanded to the INS Service Center that denied the application for a decision under the new law. Because these applications will have been filed before November 1, 1998, the physician will be required to perform only three years of service to obtain the waiver.
Adjustment of Status
The new law allows a physician to apply for adjustment of status as soon as they have an approved national interest waiver, rather than making them wait until after they are done with their qualifying medical service. Because of this, the physician will receive an employment authorization document, and will not have to worry about maintaining valid nonimmigrant status.
However, while the physician can apply for adjustment of status as soon as he or she obtains the waiver, the law prevents the INS from making a final decision on the adjustment application until after the physician has completed their qualifying service. Physicians subject to the three-year requirement will be required to submit evidence of their qualifying work only at the end of the three-year period. Physicians subject to the five-year requirement will be required to submit evidence of qualifying work twice. The first submission must come no later than two years and 120 days after the approval of the I-140. At this point the physician must show that they have at least 12 months of qualifying work. If they do not have one year of service at this point, it will be impossible for them to have five aggregate years of service within the six-year limit, and the I-140 will be revoked. If the alien does have the qualifying service at this point, they will be required to submit evidence of five years qualifying service at the end of the six-year period.
As evidence of qualifying work, the INS will accept tax returns and attestations from the employer that the physician did perform full time clinical medical service. If the physician obtained the waiver through a promise to open their own practice, the INS will require evidence that such a practice was indeed opened, such as business licenses and tax returns.
Physicians will not be scheduled for fingerprinting until after they document the required years of service. Also, they will not be required to submit a medical exam until submission of the final evidence demonstrating that they have performed all the required years of service.
Relocation
In some situations, a physician will be forced to relocate. In these cases, the physician will be required to submit a new petition documenting the reasons for the proposed location and that the proposed new locations is a qualifying area (VA, HPSA, or MUA). The physician will not be required to begin a new three or five-year period of service, but can combine time spent in the first worksite and the second worksite. However, the alien must complete all the qualifying service within either four or six years. Given INS processing delays, switching work locations more than once could seriously jeopardize the chances of a person accumulating the necessary five years of service within a six-year period.
Finally, in the event that the physician’s work location becomes fully medically served, the INS will not require the physician to relocate. This only makes sense as one of the purposes of this national interest waiver is to improve access to medical care – to try to make all of the US fully medically served.
The INS will accept comments on the proposed rule until November 6, 2000. Comments must be submitted in writing, in triplicate, to
Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street, NW
Room 5307
Washington, DC 20536
To ensure that the comments reach the proper person, include the following INS reference number on all correspondence: 2048-00.
The text of the regulation is available online at http://frwebgate.access.gpo.gov/cgi-moses/getdoc.cgi?dbname=2000_register&docid=00-22832-filed < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. |
