Immigrant Visa Processing for Foreign Doctors– Labor Certification and National Interest Waiver Petition Options. As a physician eligible for a J-1 waiver, you have two possible avenues to apply for an immigrant visa, based on either a PERM Labor Certification" or a "National Interest Waiver (NIW)." You can file on either or both of these bases. We will be happy to discuss with you which option may be best for you. This memo provides you with general background information on these two processes.
PERM Labor Certification. The PERM labor certification is a three-step process, in which we file first with the Department of Labor (DOL), and then with the US Citizenship and Immigration Services(USCIS).
Step 1. Before filing with the DOL, your employer must recruit for your position. This generally involves two Sunday newspaper print advertisements and three other forms of recruitment. We will work with your employer on the placement of this advertising. We have to file the PERM with the DOL within six months after commencement of the recruitment. Our filing with the DOL is an online filing. We can make a PERM filing only if no U.S. workers who were qualified and willing to assume this position. We also prepare an "audit file," documenting the recruitment process, to submit to the DOL upon its request. The recruitment process can take four to six months, and DOL approval can take from several weeks to several months, and even a year or more if the case is audited by the DOL. Step 2. After your PERM is certified by the U.S. DOL, we file that approved labor certification as part of your immigrant visa petition (form I-140) with the USCIS. This is a fairly straightforward filing in which we demonstrate that your employer is a qualifying U.S. employer and is able to pay your wage, and that you qualify for the position. USCIS processing times for the form I-140 vary, and current USCIS processing times are reported on the USCIS website.
Step 3. After the form I-140 is approved, you either can process for your visa at a U.S. consulate abroad or file an application with USCIS to adjust your status in the United States. There are benefits and drawbacks to each of these, and we can discuss which would be better for you. There are a few general rules, however. If you consular process, you cannot receive your immigrant visa abroad until you have completed your three years in H status required by your J-1 waiver, your spouse and dependent children receive no travel or work authorization until they return to the United States as permanent residents, and you must remain employed by your sponsoring employer until you return in immigrant status, and for some period of time thereafter. If you file with USCIS to adjust your status in the United States, you cannot file to adjust until you have completed your three years in H status required by your J-1 waiver, your spouse and dependent children can receive travel and work authorization during the pendency of your adjustment application, and you must remain employed by your sponsoring employer either (1) until the adjustment is approved and for some period of time thereafter, or (2) for at least six months after filing your adjustment application, whichever occurs sooner.
USCIS permits individuals to file adjustment applications concurrently with filing an I-140 petition. However, since a J-1 waiver physician, whose form I-140 petition is based on a labor certification cannot file an adjustment application until he or she has completed three years in H status, it is unlikely that most J-1 physicians can take advantage of this concurrent filing policy.
Also, an individual can neither consular process nor file an adjustment application unless his or her "priority date" is current. One's priority date is the date of filingof his or her PERM labor certification. Physicians generally qualify for immigrant visas in the EB-2 category, and there have been backlogs in this category expecially for natives of India and China. You can check the current priority date on the Department of State website at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
National Interest Waiver (NIW). The NIW is a two-step process filed exclusively with the USCIS, without any DOL filing. The basis for the filing is that your work in a Health Professional Shortage Area ("HPSA"), a Medically Underserved Area ("MUA") or at a Veterans Affairs (VA) facility is "in the national interest."
Step 1. The USCIS filing is also a form I-140 petition. In this filing, we demonstrate that you will be practicing full-time primary care or psychiatry in a HPSA or MUA or practicing full-time at a VA facility for a period of five years. USCIS regulations authorize a physician to change employers or become self-employed during the five-year service period, as long as the physician continues to work in a HPSA or MUA, or at a VA facility. A new I-140 is required, but the five-year commitment period does not start over. USCIS regulations do not address whether a physician can serve part of this time in a HPSA/MUA and part of the time at a VA facility.
Step 2. Physicians qualifying for an NIW cannot receive their immigrant status until the completion of their five-year commitment. The USCIS has taken the position that NIW physicians cannot consular process but must file applications to adjust status. Unlike PERM applicants, physicians applying for an NIW need not wait for the end of their three year period in H status before filing for adjustment, but can file adjustment applications either concurrently with the form I-140 or at any time thereafter. However, as noted above, the priority date must be current to file an adjustment. The priority date in an NIW case is the date of filing of the I-140 petition. So many physicians, especially those from INdia and China may need to wait before filing their NIW-based adjsutments. Once an adjustment is filed, spouses and dependent children can file for travel and work authorization while the adjustment applications are pending. The J-1 waiver physician can file for travel and work authorization after the three-year H period is completed. The adjustment application will not be approved until the completion of the five-year NIW commitment. The three years a J-1 waiver physician serves in H status are included in this five-year period. This five-year commitment must be completed within six years of commencing work in H. At the end of the five-year period, the physician must submit evidence to USCIS that he or she has fulfilled this requirement. Required documentation includes copies of the physician's W-2 forms and tax returns for the five-year period, current medical examinations for all family members, and either (1) a letter from the physician's employer attesting to the full time practice, or (2) if the physician is self-employed, documentation of the physician's private practice. After submission of this evidence, USCIS will schedule the physician and family members for fingerprinting prior to final approval of the adjustment.
A full description of the PERM process can be found at http://www.millermayer.com/Immigration/LaborCertifications/tabid/202/Default.aspx, and a full discussion of the physician NIW process can be found at LinkClick.aspx.