EB-2:  Physician National Interest Waiver (NIW)

 You may be eligible for an employment-based, second preference visa if you are a physician who agrees to work for a period of time in a designated underserved area.

 

Statutory Language – 8 U.S.C. §1153(b)(2)(B)(ii)

 

(ii)  Physicians working in shortage areas or veterans facilities

 

(I)  In general The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if –

 

(aa)  the alien physician agrees to work full time as a physician in an area or 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; and

 

(bb)  a Federal agency or a department of public health in any State has previously determined that the alien physician’s work in such an area or at such facility was in the public interest.

 

Eligibility Criteria:

• You must agree to work full-time in a clinical practice. For most physician NIW cases, the required period of service is 5 years.  Those who filed an immigrant visa petition before November 1, 1998 are required to perform only 3 years of service.
• You must work in a primary care (such as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist) or be a specialty physician
• You must 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, or for specialists in a Physician Scarcity Area (PSA)
  • o To find these areas please check the following website – http://hpsafind.hrsa.gov/
• You must obtain a statement from a federal agency or a state department of health that has knowledge of your qualifications as a physician and that states your work is in the public interest (This statement is known as an attestation)

 

 

Types of Physicians

Originally, only physicians in the following fields of medicine were eligible for a Physician NIW: family/general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.

Now USCIS will also accept NIW petitions on behalf of specialty care physicians who agree to work full time in areas designated by HHS as having a shortage of specialty-care health professionals, i.e., Physician Scarcity Areas (PSA).  Check the following website to determine if a certain geographic area is a PSA – http://www.cms.hhs.gov/HPSAPSAPhysicianBonuses.  A specialty physician is defined as other than a general practitioner, family practice practitioner, general internist, obstetrician, or gynecologist.

Note that dentists, chiropractors, podiatrists, and optometrists do not qualify for the Physician NIW because they do not qualify for the physician scarcity bonus as specialty physicians.

Five-Year Service Requirement

The physician must work full time in a shortage area or VA hospital for five years before he or she is eligible for an immigrant visa or adjustment of status.  8 U.S.C. §1153(b)(2)(B)(ii)(II).  Note that a three-year requirement applies in certain cases.  Time spent in J-1 status cannot be counted towards the five-year period.  Id.  Therefore, practically speaking, the physician must satisfy the five-year requirement as an H-1B nonimmigrant or as an adjustment of status applicant.

USCIS will credit time a physician served in a qualifying capacity in shortage areas and in VA facilities prior to the approval of the Form I-140 if:  (1) the physician was in a lawful status (other than J-1 nonimmigrant status) at the time of service, and (2) the service meets the regulatory criteria established in 8 C.F.R. § 204.12(a).

Physicians with an approved NIW petition will no longer be restricted to a specific time period in which to fulfill the medical service requirement.  However, USCIS adjudicators may use their discretion and deny an application for adjustment of status if the physician appears to be using the pending adjustment status application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.

Evidence

Shortage Area

If not working at a VA, the physician or the physician’s employer must submit evidence showing that the geographic area in which the physician has worked or is working is or was designated by the HHS as having a shortage of health care professionals.  The designation as a shortage area must be valid at the time the NIW waiver employment began.  If the area loses its designation as a shortage area after the physician starts working there, the physician can remain at the facility and the time worked there will continue to qualify as NIW employment so long as the employment continues to satisfy all other NIW requirements.

For Primary Medical Health Professional Shortage Areas (HPSA) or Mental Health Professional Shortage Areas please check the following website – http://bphc.hrsa.gov/ddatabases/hpsa.dfm.

For Physician Scarcity Areas (PSA) (for specialists) please check the following website – http://www.cms.hhs.gov/HPSAPSAPhysicianBonuses.

Attestation from Government Agency

Physicians must obtain a statement from HHS, VA, or another federal agency (e.g., Department of State) attesting that the physician’s work is in the public interest.  In order to provide the attestation, the federal agency must possess knowledge of the physician’s skills and have experience in making similar types of attestations.  Alternatively, the attestation may be submitted by a state department of health.  Attestations from local authorities will not be accepted.  The certification must explicitly cover any 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.

Procedures

The petitioner must first file Form I-140.  The following supporting documentation must be included with the Form I-140:

• A full-time employment contract from a clinical medical practice in the medically underserved area, or an employment commitment letter from a VA facility, dated no earlier than six months prior to the date of filing;
• Evidence that the physician’s full-time medical services will be provided in a medically underserved area or at a VA facility;
• A letter from a federal agency or a state department of health with jurisdiction, or the District of Columbia, attesting that the alien’s work will be in the public interest;
• Evidence that the alien is a qualified physician pursuant to INA § 212(a)(5)(B)
  • This requirement is typically satisfied by passing the United States Medical Licensing Examination (USMLE) and obtaining certification through the Educational Commission for Foreign Medical Graduates (ECFGMG)
  • Evidence that the alien has completed the five-year service requirement (if the requirement has been met based on medical practice completed before the filing of the I-140 petition); and
  • Evidence that the alien has received a waiver of any INA § 212(e) foreign residence requirement (J waiver), if applicable.

An adjustment application (Form I-485) may be filed concurrently with the Form I-140.  However, USCIS will not approve the adjustment of status until the physician has satisfied the five-year service requirement.  A physician with a pending adjustment application may be issued an Employment Authorization Document (EAD) so that he or she will no longer need to maintain a valid nonimmigrant status during his or her period of service.

If the physician files the Form I-140 before completing the five-year service requirement, the physician is required to submit interim evidence showing that he or she is employed in qualifying service:

• Two Years – This submission must be made no later than 120 days after the second anniversary of the issuance of the I-140 approval.  The evidence must demonstrate that the physician has completed at least 12 months of qualifying service.  Note:  Physicians required to complete only three years of qualifying service are not required to make this interim submission.
• Six Years – Additionally, no later than 120 days after the sixth anniversary of the I-140 approval, evidence must be submitted that documents employment for the minimum period.

USCIS adjudicators should not revoke an approved I-140 solely because the required medical service has not been completed.  However, adjudicators may revoke a petition if the adjudicator determines that the physician who is the beneficiary of the I-140 does not intend to complete the NIW requirements, that he or she never intended to complete the requirements, or for any other applicable bases for revocation of a petition under INA § 205 and enumerated in 8 C.F.R. Part 205.

Evidence of employment will include income tax returns and W-2 forms for the entire period.

 

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