The National Interest Waiver (NIW)
To be eligible for a physician NIW, the foreign physician must:
1. Agree to work full-time in a clinical practice. In most cases, the required period of service is 5 years. The beginning of the five year period varies depending on whether the applicant previously secured a J-1 waiver based on service in an underserved area or not.
2. Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.
3. Serve full time as a physician in either a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility.
4. Obtain a statement from a federal agency or a state department of public health in any state that has knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.
Each of these eligibility criteria requires extensive documentation. This is especially true of the requirement mandating that the physician practice full-time for 5 years. Thus, it is important to collect documentation evidencing employment history.
For the statement requirement, 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:
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.
Unfortunately, any time spent by the physician in J-1 nonimmigrant status does not count toward either the 5 year medical service requirement. A physician also has 6 years by which to complete this requirement from the date of filing.
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 underserved area, he or she is granted just one 6-year period to complete the required service time.
Applying for the Green Card
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 (such as H-1B) 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.
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 the required time, and a projected timeline noting the dates by which the physician must send evidence to USCIS.
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.
With the changes to healthcare in the United States, and the fact that an estimated 30 million Americans will soon have health care insurance for the first time, having a sufficient number of primary care providers, particularly those practicing family or general medicine, as well as pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry, is of vital importance. The National Interest Waiver attempts to address this issue, by providing foreign physicians with a path toward permanent residence, on the condition that medically underserved areas are properly served.
For more information regarding the National Interest Waiver, and green cards for physicians, please contact our experienced immigration attorneys.
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