The ABC’s of Immigration:  National Interest Waivers for Physicians

What is a National Interest Waiver?

 

Aliens of exceptional ability and aliens holding advanced degrees in professional fields may apply for green cards through the second-preference employment category (EB-2).  While a labor certification is generally required for this category, this requirement is waived if an applicant can demonstrate that granting the EB-2 petition is in the national interest.

There are two kinds of national interest waiver (NIW) applications available: the standard case and the physician NIW.In standard NIW cases, there is no formal rule defining what constitutes "national interest", court decisions have established a list of factors that show the permanent resident's admission would be in the national interest:

 

  • The alien's admission will improve the U.S. economy;
  • The alien's admission will improve wages and working conditions for U.S. workers;
  • The alien's admission will improve educational and training programs for U.S. children and under-qualified workers;
  • The alien's admission will improve health care;
  • The alien's admission will provide more affordable housing for young, aged, or poor U.S. residents;
  • The alien's admission will improve the U.S. environment and lead to more productive use of the national resources; or
  • The alien's admission is requested by an interested U.S. government agency.

 

 

How is a physician NIW different from a standard NIW?

 

On November 12, 1999 , President Clinton approved enactment of the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95, also known as the Nursing Relief Act.  Section 5 of this act amends section 203(b)(2) of the Immigration and Nationality Act by adding a new subparagraph, which establishes special rules for requests for a national interest waiver that are filed by or on behalf of physicians.  These regulations became effective October 6, 2000.

 

To be eligible for a physician NIW, the foreign physician must:

 

  1. Agree to work full-time in a clinical practice for the period fixed by the statute.  For most cases, the required period of service is 5 years; however, those who filed an immigrant visa petition before November 1, 1998 are required to perform only 3 years of service. The beginning of the five year period varies depending on whether the applicant previously secured a J waiver based on service in an underserved area or not.

 

  1. Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.

 

  1. Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility.

 

  1. Obtain a determination from a federal agency or a state department of health that has knowledge of the physician's qualifications, which states that the physician’s work is in the public interest.

 

How does a physician apply for an NIW?

 

There are several steps in the application process.  Because the process of obtaining a letter from either a state department of health (if the physician will be working in a HPSA, MHPSA or MUA) or from the Department of Veterans Affairs demonstrating how the work is in the national interest can take time, applying for this letter is usually the first step.

 

A physician applying through the Department of Veterans Affairs should apply through the VA facility where he or she is or will be employed.

 

A physician who will be employed in a HPSA, MHPSA or MUA must contact the state department of health in the state where the practice site is located.  Each state has its own procedures for applying for the letter, which can be viewed in the chart at http://www.visalaw.com/IMG/NIW.html. 

The next step is to apply for the NIW with USCIS. The physician must submit the following evidence with Form I-140.  For physicians who plan to serve at more than one practice site, the following evidence must be submitted for each site:

 

  1. A full-time employment contract (issued and dated within 6 months prior to the date the petition is filed) for the required period of clinical medical practice (5 or 3 years, depending on the date the application is filed), or an employment commitment letter from a Veterans Affairs (VA) facility.

 

  1. If the physician will establish his or her own practice, the physician must submit a sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to actually take to establish the practice.

 

  1. Evidence that the physician will provide full-time clinical medical service:

a.  In a geographical area or areas designated by the Secretary of HHS as having a shortage of health care professionals and in a medical specialty that is within the scope of the Secretary's designation for the geographical area or areas; or

 

b.  In a facility under the jurisdiction of the Secretary of VA.

 

  1. A letter (issued and dated within 6 months prior to the date on which the petition is filed) from the Department of Veterans Affairs or a state department of health attesting that the physician’s work is or will be in the public interest.

 

  1. Evidence that the physician has passed a U.S. medical licensing examination and is competent in oral and written English.

 

  1. If the physician was a J-1 nonimmigrant who received medical training in the United States , he or she must also provide a copy of the USCIS approval notice of the J-1 visa waiver.

 

How long does the physician have to complete the NIW service requirement?

 

Physicians must work for an aggregate of five years of full-time service. USCIS regulations require completion of the five year period within a 6-year period following approval of the petition and waiver (within 4 years of approval of the petition and waiver for cases filed before November 1, 1998). However, the 9th Circuit Court of Appeals overturned this requirement in Schneider v. Chertoff (2006).

When does USCIS begin counting the physician’s 5 or 3-year service requirement?

 

For J-1 waiver recipients, the 5-year or 3-year period of medical service begins when the physician starts working for the petitioner in a medically underserved area. USCIS regulations mandate that for those who did not receive a J-1 waiver (such as H-1Bs and O-1 visa holders, the 6-year or 4-year period during which the physician must provide the service begins on the date that USCIS approves the Form I-140 petition and national interest waiver.  However, the 9th Circuit Court of Appeals overturned this requirement in Schneider v. Chertoff (2006).

 

Does time spent by the physician in J-1 nonimmigrant visa status count toward the mandatory service requirement?

 

No.  Any time spent by the physician in J-1 nonimmigrant status does not count toward either the 5 or 3-year medical service requirement.

 

Does time spent fulfilling a J-1 visa waiver service requirement count towards the NIW service requirement?

 

For physicians who have received a J-1 visa waiver, USCIS will calculate the 5-year or 3-year period of services of the national interest waiver beginning on the date the physician changed from J-1 to H-1B status. That is, a physician who is subject to the foreign residence requirement will not be required to first serve for 3 years to obtain that waiver and then to serve an additional 5 years to obtain adjustment of status based on the national interest waiver. The 9th Circuit decision in Schneider v. Chertoff (2006) extends this rule to other applicants as well.

 

Can a physician relocate to another underserved area during the 5 or 3-year service period?

 

Yes, physicians will not be prohibited from relocating to other underserved areas. However, any physician who wants to transfer to a different underserved area must submit a new I-140 petition that documents the reasons for the proposed relocation.

 

USCIS will take into account the amount of time the physician is engaged in full-time practices in calculating the aggregate medical service time in the underserved areas. For example, if the physician completed 3 years of service before approval of the second petition, then only 2 more years of service would be needed to qualify for adjustment of status. However, even though the physician is allowed to transfer to a new area, he or she still has the original 6 years to complete the service requirement.  Regardless of the number of times a physician transfers to a new underserved area, he or she is granted just one 6-year period to complete the required service time.

 

Will USCIS require a physician to transfer to another underserved area if the original area loses its designation as an underserved area? 

 
 

A physician is not required to relocate to another underserved area if the area in which the physician is practicing loses its designation as an underserved area. The purpose of the NIW rules is to allow more physicians to practice in underserved areas and become integral parts of the community.

 

When can the physician apply to adjust status?

 

A physician can simultaneously file for adjustment of status to that of lawful permanent resident when filing the I-140 petition unless green card numbers are not immediately available based on backlogs in the EB-2 green card category.

 

The physician can also apply for an Employment Authorization Document (EAD) at the time of filing the adjustment petition. This relieves the physician of having to maintain any type of valid nonimmigrant status prior to the final adjudication of the adjustment of status application.  The physician may also apply for advance parole, so he or she can travel outside the U.S. while the adjustment application is pending. Note, however, that the physician may have an independent requirement to maintain H-1B status as part of a J-1 waiver service obligation.

 

Will USCIS hold open an adjustment of status application for the aggregate 5 or 3-year period?

 

USCIS will not make a final determination on any adjustment of status application submitted by a physician practicing medicine full-time in a medically underserved area until the physician has had the opportunity to prove that he or she has worked full-time as a physician for an aggregate of 5 or 3 years, depending on the application filing date.

 

Upon receipt of the adjustment application on Form I-485, USCIS will note the date the physician began medical service, provide the physician with a list of evidence that must be submitted after two and six years, and a projected timeline noting the dates by which the physician must send evidence to USCIS.

 

Under USCIS regulations, physicians with the 5-year service requirement must make an initial submission of evidence no later than 120 days after the second anniversary of the approval of the immigrant petition, (Form I-140).  The physician must document at least 12 months of qualifying employment during the first 2-year period.  At the end of the physician's four-year balance, evidence must be submitted that demonstrates employment for the final years of the 5-year aggregate service requirement. Because the 9th Circuit threw out the requirement to complete service in a six year period in Schneider v. Chertoff (2006), it is not clear whether USCIS will have to drop the progress requirement.

 

Alien physicians with the 3-year service requirement will only be required to submit evidence once, at the conclusion of the 3-years aggregate service.

 

What evidence must be submitted to prove that the physician has been practicing in an underserved area?

 

As evidence, the physician must submit individual tax return documents, and documentation from the employer attesting that the physician has in fact performed the required full-time clinical medical service.  This attestation must specify the date that the physician began medical service in the practice area or facility and state that full-time medical service has been rendered during the two years. Any breaks in medical service should be noted.

 

If a physician obtained the NIW based on his or her plan to establish his or her own practice, the physician must submit documentation proving he or she did so, including proof of the incorporation of the medical practice (if incorporated), business licenses, and business tax returns.

 

Do the adjustment of status filing requirements for NIW physicians differ from other adjustment of status applications?

 

Yes.  Since USCIS cannot make a final adjudication on a physician's adjustment of status application until the physician has submitted evidence documenting the medical service in a shortage area or areas, there are two changes in the adjustment filing procedures. 

 

First, physicians will not be scheduled for fingerprinting at an Application Support Center until he or she submits evidence documenting the completion of the required years of service.  Second, physicians will not submit the medical examination report at the time of filing for adjustment.  Rather, the medical report is submitted with the documentary evidence noting the physician's fulfillment of the 5 or 3-year medical service requirement.

What action will USCIS take if the physician does not submit the required evidence needed to complete the adjustment process?

 

USCIS regulations state that if a physician fails to file proof of his or her completion of the service requirement in a timely fashion, the agency will deny the application for adjustment of status and revoke approval of the Form I-140. However, USCIS has yet to announce how they will modify their requirements in light of the new court case throwing out the regulation on which this requirement is based.