ABCs of Immigration: National Interest Waivers for Physicians

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Elissa Taub, The Physicians Immigration Handbook.]

The Physician National Interest Waiver (PNIW) is commonly used by physicians to file for permanent residency. Similar to the Permanent Electronic Review Management (PERM), the PNIW is in the EB-2 preference category, meaning that individuals from countries backlogged in the EB-2 category will face challenges.

What is the PNIW?

The PNIW allows physicians who work five years in a federally designated shortage area or veterans’ hospital a pathway to permanent residency. Similar to the J-1 waiver, which is for physicians who are going to work in shortage areas, a federal agency or department of health in any state needs to determine the physician’s employment to be in the public interest. The physician must complete the five-year service commitment before permanent residency applications in the PNIW category can be approved.

The PNIW category was created in 1999 by the United States congress, and initially, since United States Citizenship and Immigration Services (USCIS) had issues no regulations, no cases were approved. USCIS was forced to issue regulations permitting filings following a lawsuit. However, numerous restrictions were placed in the regulations which were omitted in the law Congress passed. As a result, the category remained largely under-utilized.

Following a second lawsuit in 2006, the United States Court of Appeals for the Ninth Circuit ruled on the illegality of several sections of the PNIW regulations in Schneider v. Chertoff. As a result, the category has been much more widely used.

What types of shortage areas qualify for the PNIW?

USCIS regulations state that PNIW work needs to be in an area designated by the Department of Health and Human Services (HHS) as a Medically Underserved Area, an area with a Medically Underserved Population (MUA/MUP), a Primary Medical Health Professional Shortage Area (HPSA), a Mental Health Professional Shortage Area (MHPSA), or a Department of Veterans Affairs (VA) facility. Also permitted within the regulations are filings in a “medical specialty area that is within scope of the [HHS] Secretary’s designation for the geographical area or areas.” This language refers to Physician Scarcity Areas, a designation which no longer exists.

Does the position need to be full-time?

The PNIW statute mandates that a physician’s work be full-time, 40-hours per week, if it is to be used as the basis for the application. This begs the question for physicians who average 40 hours of work per week, when their position does not require them to work 40 hours every week. A physician working in a hospital seven days on, seven days off, for example, would not adhere to the literal interpretation of working 40 hours every week, while adhering to the general interpretation of averaging 40 hours of work per week. Though USICS has never issued any definitive guidance on what the term full-time means, the agency has generally approved petitions such as the one previously outlined, as long as a physician’s contract states the position to average at least 40 hours per week for a total of 160 hours per month.

Does the work need to be clinical or will other types of physician positions qualify?

According to USCIS regulations, the work needs to be full-time in a, “clinical medical practice.” There is no specific language in neither the regulations nor the statute which speaks to time devoted to non-clinical duties, such as a mixed research and clinical position or a position that involves administrative duties. It would be safe to assume, however, that the physician needs to actually be treating patients an average of 40 hours per week.

Are there “flex” slots in the PNIW category?

Unlike J-1 waivers, which have an allowance for up to 10 of a state’s Conrad 30 waiver slots for physicians working outside designated shortage areas, no such exception exists in the PNIW rules.

Are there limits on the number of PNIWs a state can file annually?

Unlike the Conrad 30 J-1 program, no limitations are placed on the number of PNIWs a qualified sponsoring agency can file each year.

What types of government agencies can sponsor a physician for a PNIW?

The USCIS rules for the J-1 program are largely the same as those for the PNIW program. State and territory health departments and federal agencies are capable of sponsoring PNIWs. The specific language of the 1999 PNIW statute speaks exclusively to sponsorship by a federal agency or a department of public health in any state. Those who were involved in the drafting of the law have complained about how the law’s intention was to include local health departments in the states, but USCIS has subsequently ignored those complaints and the matter has never been challenged in the courts. Until this happens, letters need to come from state-level health departments or federal agencies.

When does the five-year service requirement start?

If the PNIW is to provide a path to permanent residency, the physician is required to work five years in a federally designated shortage area or veteran’s hospital. The five-year requirement begins:

1. Upon approval of the Form I-140, Immigrant Petition for Alien Worker, for the PNIW;
2. Upon issuance of an employment authorization document if a physician needs one to begin working; or
3. Upon the date a physician changed from J-1 nonimmigrant status to H-1B status if the physician received a waiver for the J-1 home-residency requirement based on a shortage-area waiver.

Can a physician get credit for work done in a shortage area before the application is filed?

As long as the work in question was not performed while in J-1 status and the sponsoring government agency credits the time in its PNIW support letter, the physician can get credit for that work.

Does the five years of service need to be continuous?

Before the previously mentioned Schneider lawsuit, USCIS required the five years of PNIW service to be completed within 6 years. That ruling held the statute did not explicitly require this, and USCIS thusly revised its regulations to require the physician to document his or her progress towards the completion of the five-year service requirement. USCIS now requires the physician to provide evidence of this progress within 120 days of the second and sixth anniversaries of the I-140 approval.

USCIS will then issue a request for evidence as part of a Form I-148, Application to Register Permanent Residence or Adjust Status, to collect documentation on this requirement. Physicians from E-2 backlogged countries cannot apply to adjust status, however, so these physicians will be required to provide such documentation on their own within the time-frames previously mentioned.

In a guidance memorandum which was issued after the Schneider decision USCIS noted that, while there is no longer a requirement to complete the service requirement within six years:

USCIS adjudicators… may deny an application for adjustment of status as a matter of discretion if the physician appears to be using the pending adjustment of status application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.

Physicians can still face a risk of denial if they are not working in shortage areas at leas at the times when USCIS sends out its requests for demonstrating progress toward meeting the five-year service requirement.

Can a physician file for adjustment of status before the five-year service requirement is completed?

This is indeed the case, but it is contingent upon meeting the rest of the adjustment-of-status requirements. This benefit is imperative for many physicians who are able to file for adjustment of status and its related benefits, such as work authorization and travel, at the time of filing the PNIW-based I-140.

An important exception to this rule pertains to physicians who are ineligible to adjust because an immigrant visa is not immediately available. As of this publication, both Indian and Chinese nationals face EB-2 backlogs, the only countries’ nationals who have been face backlogs since the category was created in 1990.

Can a physician change employers during the five-year period?

Physicians are permitted to change to a new employer or location and get credit toward the five-year period, as long as the new employment is also in a qualifying shortage area and the physician files an I-140, with the accompanying fee, to notify USCIS of the change. The application needs to:

• Include proof that the work is full-time and in a shortage area;
• Include proof of a new contract, or statement in the case of self-employed physicians, which binds the physician to work the required period left to satisfy the five-year requirement; and
• Include a new letter from a sponsoring government agency attesting the new work as being in the public interest.

The physician will retain the priority date from the earlier filing.

Can physicians satisfying a three-year J-1 waiver service requirement file adjustment applications in PNIW cases?

When it comes to individuals satisfying a J-1 three-year service requirement, he or she cannot generally submit an adjustment application until after completing the service obligation. While these individuals can submit both the PERM application and I-140 petition during the three-year period, the submission of the adjustment application must be delayed. There is an exception for PNIW applicants who have an available EB-2 visa, but this is, naturally, limited to individuals who are not from a country with a backlog in the EB-2 category and not lacking a current priority date.

Can specialists file for PNIWs?

Yes. Before the Schnieder case, only primary-care physicians saw their cases approved by USCIS. The 1999 law which created the PNIW category included no such limitation, and USCIS started accepting specialists’ petitions in addition to primary-care physicians following the agency’s loss in the Schneider case. However, both sponsoring federal and state agencies are permitted to implement their own rules, limiting applications to primary care.

For a number of months in 2015 and 2016, because HHS stopped designating locations as specialist Physician Scarcity Areas (PSAs), USCIS began denying specialists’ NIW petitions. February 2016 saw the Administrative Appeals Office overrule USCIS, indicating the PSA was one of the various types of designations that can be accepted.

What does an employment contract need to contain in order to satisfy PNIW requirements?

A few requirements exist in USCIS’ immigration regulations concerning the PNIW:

• The agreement needs to be for full-time employment in a qualified shortage area.
• It needs to be a five-year agreement. This requirement for the contract has been controversial over the years. USCIS requires the five-year contract be dated within six months of filing the I-140 application, but the statute clearly considers physicians getting credit for time spent in an underserved area. The exception to this being time spent on a J-1 visa. Even if the start date of the contract is a date in the past, USCIS, generally, is content as long as the contract has a five-year term and the date of execution of the agreement is less than six months in the past. A five-year term from the current date is an alternative option, and in an effort to provide flexibility, the employer and physician are capable of deciding whether or not to authorize either party to terminate the contract at will.
• The contract needs to commit the physician to work in an underserved area, specifying where the work location will be. Also, the contract should commit the physician to work no fewer than 40 hours per week at the location or locations.
• As a matter of good practice, the location should list the HPSA or MUA/MUP identification number.

Can a physician self-petition in the PNIW category?

Either an employer or the physician is permitted to be the signatory on an I-140 PNIW petition.

Can a physician be self-employed in the PNIW category?

Yes. USCIS will accept an employment contract in place of a sworn statement for physicians who are establishing their own practices. The statement needs to both commit the physician to the full-time practice of clinical medicine for the required and outline the steps taken by the physician to establish the practice.

Can a physician use the same government agency letter for both the J-1 waiver and a PNIW?

As long as the letter is dated within 180 days of the filing of the I0-140 petition and it notes the sponsoring agency is sponsoring both the J-1 waiver and the PNIW, it can be used for both purposes.

What should the letter from the government agency say?

The letter needs to attest to the physician’s work as being in the best interest of the public. With respect to federal agencies, the letter should display both that the agency has knowledge the doctor’s qualifications as well as a background in determining matters involving medical affairs, so the finding of the doctor’s work being in the public interest is substantiated. With regards to state health departments, including those in U.S. territories and the District of Columbia, the letter must demonstrate the sponsoring agency’s jurisdiction over the location in which the doctor intends to practice clinical medicine. If the doctor’s plans include practicing in locations in more than one state, each state needs to provide separate attestation.

Can a state impose restrictions in addition to the federal PNIW requirements?

Much akin to J-1, sponsoring agencies can impose a range of additional requirements on PNIW applications, including:

• Limiting waivers to doctors who received J-1 waivers;
• Liquidated damages contract requirements;
• Additional support letters;
• Additional restrictions on the types of qualifying shortage areas;
• Minimum service requirements in a shortage area before the filing of the NIW; and
• Limitations on the types of specialties permitted to apply.

Can an I-140 PNIW petition be premium processed?

No. As of this publication, premium processing is not available in PNIW cases.

How does the physician notify USCIS that he or she has completed the service requirement and is eligible to adjust status?

USCIS regulations mandate that a physician must prove final compliance no later than 120 days following the completion of the five-year service requirement. The physician needs to provide notification to the USCIS service center with jurisdiction over the place of employment and supply evidence of the requirements’ completion. These can include the following:

• Tax returns for the entire service period.
• Attestations from the employer or employers pertaining to the full-time medical service requirement being met and explanations for any breaks in employment other than routine breaks, such as paid vacations.
• For doctors who established their own practices, documentation of the practice’s establishment, including incorporation documents, the business license, and tax documents.
• For physicians who moved locations without previously submitting a public interest letter from a government agency signing off on the location, that letter needs to also be included.

What are the advantages and disadvantages of applying for a PNIW versus a PERM petition?

• For physicians who are not subject to EB-2 backlogs, it can be helpful to be able to file an adjustment-of-status application, and the employment and travel application that goes with it, when they submit the PNIW I-140 petition. This can be beneficial to spouses and children who need work authorization, as well as making travelling easier for physicians who may face nonimmigrant visa consular delays as the result of administrative processing.
• PNIWs can be self-petitioned by physicians, while PERM petitions need an employment relationship without the physician holding an ownership interest in the practice.
• The PNIW physician seeking permanent residency might see a longer process because the physician is unable to adjust prior to meeting the five-year service requirement.
• The PNIW application does not require additional recruiting, except for instances in which a sponsoring agency includes such requirements.
• The PNIW can be transferred between employers.
• The costs of a PNIW application can be paid for by the physician, while PERM-related costs must be paid for by the employer.
• For physicians who face the H-1B cap or the six-year time limit on the H-1B and who are not subject to EB-2 backlogs, the PNIW could be an option to allow a physician to work at an employer despite the H-1B limitations.
• PERM petitions can be submitted for any type of location and is not exclusively for shortage areas.
• PERM petitions do not require the consent of a sponsoring government agency.
• PERM petitions do not actually require the physician to sign an employment agreement.
• PERM petitions, similar to PNIWs, have a very high success rate, because of the national physician shortage.

 

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