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National Interest Waivers for Physicians

by Gregory Siskind, Esq

This week, USCIS released a memorandum implementing the 2006 Ninth Circuit Court of Appeals decision that ruled that several USCIS regulations governing physician national interest waivers were “ultra vires”. In other words, they reached farther than what Congress intended. The memorandum also made other critical changes that are discussed below.

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:

• 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.

What laws and regulations govern physician NIWs?

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. USCIS did not adjudicate cases under the law and was eventually sued for its delinquency. USCIS then responded by issuing regulations which became effective October 6, 2000. Several provisions in the regulations were invalidated by the Ninth Circuit Court of Appeals in Schneider v. Chertoff (2006). USCIS implemented Schneider and announced additional changes to the NIW program in a January 23, 2007 memorandum to the field from USCIS Associate Director for Domestic Operations Michael Aytes.

How is a physician NIW different from a standard NIW?

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.

2. Serve either in an areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.

3. 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.

What types of physicians may apply for an NIW?

Under the original USCIS regulations, only primary care physicians could apply for NIWs. However, the Aytes memorandum now states that specialty care physicians can also apply for NIWs. Primary care physicians can show they are working in Health Professional Shortage Areas (HPSAs), Mental Health Professional Shortage Areas (MHPSAs), Medically Underserved Populations (MUPs) , Medically Underserved Areas (MUAs) and Primary Care Physician Scarcity Areas (PSAs). PSAs were created by Medicare legislation passed in 2004. Specialists can document a shortage area by showing work in a Specialty Physician Scarcity Area (PSA). Links to PSAs can be found at http://www.cms.hhs.gov/HPSAPSAPhysicianBonuses/. MUPs and MUAs can be found at http://muafind.hrsa.gov/. HPSAs and MHPSAs can be found at http://hpsafind.hrsa.gov/.

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 shortage area) 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 shortage area 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.

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.

2. 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.

3. 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.

4. 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.

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

6. 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?

Prior to the Schneider case, USCIS regulations required physicians to complete an aggregate of five years of full-time service 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. USCIS’ January 23, 2007 Memorandum from Michael Aytes, Associate Director for Domestic Operations again attempts to give USCIS discretion to deny if progress is not made to their liking and some are already questioning whether USCIS is violating Schneider. The Aytes memorandum states the following on the subject:

“USCIS, however, is not required to allow a physician with an approved NIW and pending adjustment application to continue receiving interim work and travel authorization for an unlimited period without some evidence that the physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval. Therefore, while USCIS will not impose a specific timeframe within which the medical service must be performed, an adjudicator may exercise discretion to deny employment authorization or an adjustment application if he or she believes that the physician is using the pending adjustment of status application solely as a means for employment in areas or occupations other than medical service in the designated area.”

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. Prior to the Schneider case, USCIS regulations mandated 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 began 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) and the Aytes memorandum now states that USCIS will credit the time a physician served in a qualifying capacity in shortage areas and in Veteran Affairs facilities prior to the approval of the Form I-140 if

1. the physician was in a lawful status at the time of service and
2. the service otherwise meets the NIW regulations

Also, the Aytes memorandum requires the public interest letter from the sponsoring government agency to note that the letter covers past periods of employment that the physician wishes to have credited towards his or her service requirement and must make a “present statement” for purposes of qualifying future medical service employment. Doctors who have already completed their service may submit a retroactive certification or attestation letter from the sponsoring agency. And a letter used in the past as part of a J-1 waiver application may be used to prove that past employment was part of the national interest. Finally, the doctor must also show that the location of the work was in a qualifying shortage area or VA facility at the time of the service.

The Aytes memorandum now provides that people denied based on the six year time limit under the old regulations, may file (with fees) a motion to reopen if they are

1. currently in the US after a lawful admission
2. maintaining lawful status
3. have not been in removal proceedings or subject to a removal order and
4. have not already become a permanent resident.

Motions to reopen must be filed no later than January 23, 2008. Motions must be accompanied by proof of progress toward completing the service requirement.

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 and an NIW will be approved as long as the doctor continues to satisfy all other NIW requirements.

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 pre-Schneider USCIS regulations, physicians with the 5-year service requirement must have made 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 have documented 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 have been submitted that demonstrating employment for the final years of the 5-year aggregate service requirement. Alien physicians with the 3-year service requirement were only required to submit evidence once, at the conclusion of the 3-years aggregate service.

The Aytes memorandum has altered the process in light of Schneider. USCIS will continue to require submitting reports within 120 days after the 2nd and 6th anniversaries of the I-140 approval showing that the doctor either finished or is in the process of finishing the required years of service.

What evidence must be submitted to prove that the physician has been making progress to complete required service in an underserved area?

The Aytes memorandum lists evidence of compliance and requested documentation to be included with initial petitions and in response to requests for evidence:

1. Employment documentation such as tax returns and W-2 forms showing periods of time worked in the required location
2. A contract, an employer’s statement of understanding, or a commitment to self-employment as proof of a commitment to complete the medical service in the shortage area;
3. Explanation and proof concerning any breaks in, or any delay in the commencement of, the full-time medical service employment; and
4. Proof of other valid immigration status under which any non-qualifying employment has been or is being performed.

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 and the Aytes memorandum affirms that if a physician fails to file proof of his or her completion of the service requirement in a timely fashion, the agency will deem the application abandoned, deny the application for adjustment of status and revoke approval of the Form I-140.


About The Author

Gregory Siskind, Esq. 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 gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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