National Interest Waivers For Physicians
Recently, the Ninth Circuit Court of Appeals ruled that several USCIS regulations governing physician national interest waivers were "ultra vires". In other words, they reached farther than what Congress intended. We thought that given the court’s ruling, we would focus on that special green card category in this article.
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, rftf 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:
How is a physician NIW different from a standard NIW?
To be eligible for a physician NIW, the foreign physician must:
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:
a. In a geographical area or areas designated by the Secretary of
b. In a facility under the jurisdiction of the Secretary of VA.
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
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
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.
Uner USCIS regulations, hysicians 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
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.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.