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National Interest Waiver (NIW) for Physicians

By special provision of law, a physician committing to at least five years of clinical employment in a shortage area in the U.S. can apply for lawful permanent resident status without
involving the labor department. Thus, no advertising of the job for PERM labor certification is required.

A National Interest Waiver (NIW) allows a clinical physician to adjust to Permanent Resident status without advertising to prove that qualified American physicians are unavailable
(a labor certification). Under U.S. Citizenship and Immigration Services (USCIS) regulations, a physician can qualify for an NIW by serving as a clinician in an area designated as a Health Profession Shortage Area (HPSA), Mental Health Professional Shortage Area (MHPSA), Medically Underserved Area (MUA), or at a Veterans’ Affairs (VA) facility. Eligible physicians must follow strict procedural requirements to qualify.

The NIW physician process has two steps. First, the support of the state department of health or VA must be obtained in the form of a “public interest” letter. Many states have their
own set of procedures for obtaining public interest letters. Second, the employer or the physician petitions USCIS for the NIW on Form I-140 showing a five-year job commitment in a shortage area. If the EB-2 priority date is current, the physician can concurrently file an Adjustment of Status (AOS) application.

National Interest Waiver Requirements 

To be eligible for the NIW, a physician must agree to work full-time (40 hours a week) in clinical practice for an aggregate five years. The clinical practice must be located within an
HPSA, MHPSA or MUA, or at a VA facility.

There is no time limit for completing the required five years of medical service. Qualifying medical service includes time before or after the I-140 filing. If a physician has
obtained a J-1 waiver, the physician will begin accumulating the required five years of service on the date the physician changes from J-1 to H-1B status, but no time spent in J-1 classification counts towards meeting the five-year requirement.

Physicians serving in designated shortage areas must be vigilant that their specialty area does not lose its designation during the five years of required medical service. The aggregate
five-year period may be served in multiple shortage areas.

Initial Evidence Required for NIW Application

Physicians petitioning for an NIW must submit the following evidence:

  1. Either an employment contract for the five-year period of clinical medical practice, an employment commitment letter from a VA facility, or reliable evidence of self-employment. USCIS stipulates the employment agreement be dated within the six months prior to the date the NIW petition is filed. A physician who is establishing his or her own full-time practice must submit a sworn statement committing to the full-time practice of clinical medicine and describe the steps the physician has taken or intends to take to establish the practice. For example, USCIS often requires a business plan, office lease and proof of financing for self-employed NIW practitioners.
  2. Evidence that the worksite is located in a geographical area designated by the U.S. Department of Health and Human Services as an HPSA, MHPSA or MUA. Alternatively,
    evidence of the physician’s facility being under the jurisdiction of the VA must be provided if a physician is employed by the VA.
  3. A letter from a state department of public health or federal agency asserting that the physician’s work is in the public interest. The letter must be dated within the six months
    preceding the date that the NIW petition is filed. Note that state health departments have the discretion to deny requests for public interest letters.

In some circumstances, a physician can seek an NIW based on past employment in a VA or shortage area. This would require a public interest letter from the state health department or VA. While some agencies may accommodate such a request, the agency may deny the request depending on the circumstances, such as if the physician requests a letter from a state health department in a state where he or she no longer works.

Concurrent Adjustments of Status Application

If there is no quota delay in the EB-2 category, the physician and his or her dependents can submit the AOS application, consisting of Forms I-485 for Permanent Resident (“green
card”) status, I-765 for employment authorization (“EAD”), and I-131 for advance parole to travel (“AP”), concurrently with the I-140 filing. USCIS will approve the EAD/AP card after a few months, but will not approve the green card until the physician has completed the required five years of medical service. The EAD/AP card is issued for between one and two years at a time and is renewable for as long as the I-485 remains pending. Unlike the typical I-485 application, the USCIS medical exam report is not required until the physician submits evidence of having completed the five years of service.

Please note that although the EAD gives the physician work authorization, it is recommended that the physician maintain his or her H-1B non-immigrant status throughout the
NIW period to avoid an interruption of work authorization if there is a delay in processing an EAD extension.

The NIW physician can travel outside the United States using the EAD/AP card or by maintaining H-1B status.Upon receipt of the I-485, USCIS will note the date the physician began medical service, provide the physician with a list of evidence that needs to be submitted after two and six years respectively, and create a projected timeline noting the dates by which the physician must send evidence to USCIS.

Evidence Needed After Two Years of Medical Service

Within 120 days following the second anniversary of the approval of the I-140, a physician must submit the following evidence showing completion of at least 12 months of
qualifying medical service:

  1. An employer letter specifying the date that the physician began medical service in the practice area or facility and stating that full-time medical service has been rendered
    during the two years. Any breaks in medical service should be noted.
  2. The physician’s W-2 forms and individual federal income tax returns that are available upon the second anniversary of the NIW I-140 approval must be submitted.
  3. If the physician established a private practice, the physician must submit documents noting the actual establishment of the practice, including incorporation or LLC
    documentation of the medical practice, if applicable; business license; and business tax returns and tax withholding documents available upon the second anniversary of the NIW
    I-140 approval.

Evidence Needed After Five Aggregate Years of Medical Service

Within 120 days following completion of the five years of medical service, a physician must submit:

  1. An employer letter specifying the date that the physician began medical service in the practice area or facility and noting that full-time medical service has been rendered for
    the required five years. Any breaks in service should be noted.
  2. The physician’s W-2 forms and individual federal income tax returns for the five years of medical service.
  3. If the physician established a private practice, the physician must submit documents noting the actual establishment of the practice, including or LLC documentation of the
    medical practice, if applicable; business license; and business tax returns and tax withholding documents.
  4. Additionally, the medical examination report must be submitted at this time.

Upon approval of the I-485, the physician and any of his/her dependents will receive their green card(s).

© Copyright 2013 - 2022 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VIII, Number 46
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About this Author

Sandra Bruno, Miller Mayer Law Firm, Immigration Law Attorney
Associate

Sandra Bruno is an Associate in Miller Mayer’s Immigration practice group.

Ms. Bruno practices immigration law, with a focus on employment-based immigration exclusively. She assists employers in obtaining non-immigrant and immigrant status for their employees. She has extensive experience working with post-doctoral researchers, professors, engineers, scientists, scholars, and individuals of extraordinary ability. Ms. Bruno also represents individuals on a variety of family-based immigration and naturalization matters. Prior to joining Miller...

607-273-4200
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