Background

In 2000, the Immigration and Naturalization Service (INS) released regulations detailing how foreign physicians serving as clinicians in Health Profession Shortage Areas (HPSAs), Medically Underserved Areas (MUAs), or Veterans Affairs facilities can be eligible for a National Interest Waiver (NIW). Eligible physicians must follow strict procedural requirements to qualify. A National Interest Waiver allows an applicant to adjust to permanent resident status without a labor certification.

The NIW physician process has two steps. First, the physician self-petitions INS for a NIW on Form I-140 showing a five-year job commitment in a shortage area. Once the I-140 is approved, the physician submits an Adjustment to Permanent Resident application. Until the physician has completed the required five years of medical service, the INS will not approve the adjustment of status application or grant Permanent Resident status. Rather, INS will require the physician applicant to provide annual confirmation, through W-2s, 1040s and other proofs, that the five-year service obligation is being satisfied.

National Interest Waiver

What are the Requirements?

To be eligible for an NIW, a physician must agree to work full-time (40 hours a week) in a clinical practice for a total of five years. The clinical practice must be located within an area that is designated as a Medically Underserved Area (MUA), a Primary Medical Health Professional Shortage Area (HPSA), a Mental Health Professional Shortage Area (MHPSA), or within a Veterans Affairs (VA) facility. Further, a physician serving in a MUA, MHPSA, or HPSA must provide services in a medical specialty for which the area is designated. For example, a physician who received a J waiver through the VA based on specialty practice likely could not leave the VA system after the initial three-year service obligation to work in a HPSA, because HPSAs are only designated for primary care.

Additionally, a physician must accumulate the required five years of medical service within the six-year period beginning on the date the NIW is approved (Form I-140). If a physician has obtained a J-1 waiver and changed to H-1B nonimmigrant status, however, the physician will begin accumulating the required five years of service on the date the physician changes from J-1 to H-1B status, not on the date of I-140 approval. No time spent in J-1 classification counts towards meeting the five-year requirement.

Initial Evidence Required for NIW Application

Physicians petitioning for a NIW must submit the following evidence:

1. Employment contract for the five-year period of clinical medical practice, or an employment commitment letter from a VA facility or reliable evidence of self-employment. The INS requires the employment agreement to be dated within the six months before the date the NIW petition is filed. This requirement means that the employment agreement used for J-1 waiver purposes cannot be used. If the physician is establishing his or her own full-time practice, the physician 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, INS often requires a business plan, office lease and proof of financing for self-employed NIW practitioners.

2. Evidence that the physician will provide full-time clinical medical service in the geographical area and medical specialty designated by the Secretary of the Health and Human Services (HHS). 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 federal agency or state department of public health asserting that the physician's work is in the public interest. The letter must be dated within six months before the date the NIW petition is filed. A government attestation must be submitted reflecting the agency's knowledge of the alien's qualifications and the agency's background in making determinations on matters involving medical affairs so as to substantiate the finding that the physician's work is or will be in the public interest. An attestation from a state public health department must reflect that the agency has jurisdiction over the practice area. Many J-1 waiver recommendations will not satisfy these requirements, and a new letter from a state public health official may be required.

Please note that if a physician is to split his or her full-time clinical service between two areas that the aforementioned evidence must be submitted for both areas of practice.

Adjustment of Status Application

Once a physician's National Interest Waiver (I-140) petition is approved, the physician submits an Adjustment of Status to Permanent Residency (Form I-485) application to the INS. The INS will hold the application until the physician fulfills the five-year medical service commitment.

Evidence Required for Adjustment of Status

A. Initial Adjustment of Status Filing

Upon receiving an approved NIW, a physician and spouse and children may submit a completed Form I-485, together with forms requesting work permits and travel permission if desired. Unlike the typical I-485 applicants, the physician will not be scheduled for fingerprinting by the INS until the physician's competition of the required five years of service. Second, the INS medical exam report should not be submitted until the physician submits evidence of the completion of the five years of service.

If the NIW physician applicant is a J waivered physician, then H-1B status must also be maintained for the first three years.

Upon receipt of the form I-485 the INS will note the date the physician began medical service, provide the physician with a list of evidence that is needs to be submitted after two and six years, and a projected timeline noting the dates by which the physician must have sent evidence to INS.

B. Evidence Needed After Two Years of Medical Service

Within 120 days after 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.Employer attestation 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 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 at 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 of the medical practice (if incorporated), business license, and business tax returns and tax withholding documents available at the second anniversary of the NIW I-140 approval.

If an NIW physician also has a three-year service obligation pursuant to a J waiver recommendation, no additional evidence is needed at the two year juncture, unless requested by INS.

C. Evidence Needed After Five Aggregate Years of Medical Service

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

1.Employer attestation 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 incorporation of the medical practice (if available), business license, and business tax returns and tax withholding documents.

4.Additionally, the medical examination report must be submitted at this time.

Upon receiving the aforementioned documentation, INS will schedule a fingerprinting appointment and an adjustment interview with a Service officer (unless waived by INS). Upon the completion of the adjustment interview the physician and his or her dependents will be granted permanent resident status (green cards).

Important Notes about Travel and Eligibility

A physician with a NIW may travel outside the United States during his or her five-year medical service period by obtaining advance parole before travel. To apply for advance parole a physician submits an Application for Travel Document (Form I-131) to the INS. Alternatively, if the physician is maintaining H-1B status, he or she can travel on an H-1B visa.

Physicians serving in areas designated by Health and Human Services (HHS) must be vigilant that their specialty and area are not de-designated during the five years of required medical service. Time spent serving areas after they are de-designated cannot be included in the aggregate five years of medical service.

Note: Current litigation claims that the INS regulations overstep the intentions of the statute passed by Congress. Until the outcome of the litigation is known, however, it is highly advisable to follow the procedure outlined in the regulations.

(rev. 10/20/02)