As a physician eligible for a J-1 waiver, you have two possible avenues to apply for an immigrant visa, based on either a "Reduction in Recruitment (RIR) 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.

RIR Labor Certification. The RIR labor certification is a three-step process, in which we file first with the Department of Labor (DOL), and then with the Immigration and Naturalization Service (INS).

Step 1. Before filing with the DOL, your employer must recruit for your position. This generally involves at least one print advertisement and advertising on "America's Job Bank," a web site established by DOL. We have to file the RIR with the DOL within six months after publication of the print advertisement(s). We will work with your employer on the placement of this advertising. Our filing with the DOL includes a recruitment report, in which we demonstrate that no qualified U.S. workers responded to this advertising who were qualified and willing to assume this position. This RIR is filed with the state DOL office, which then forwards it to the U.S. DOL office. This process can take from about four months to up to two years, depending on backlogs at the state and U.S. DOL offices with jurisdiction over your place of employment.

Step 2. After your RIR 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 INS. 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. INS processing times for the form I-140 vary, but generally are between three and eight months.

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 INS 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 INS 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. .

The INS recently has implemented a policy that individuals can 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.

National Interest Waiver (NIW). The NIW is a two-step process filed exclusively with the INS, 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 INS 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. As a physician must serve in a medical specialty for which the area is designated, and as areas generally are designated only for primary care and mental health, it may not be possible for a specialist (other than a psychiatrist) working in a HPSA or MUA to qualify for an NIW. You may need to amend your employment contract to provide a five year term, and to provide INS with a contract dated within six months of filing. If you intend to be self-employed after your three-year period in H status is completed, we would need to provide INS with a statement of your plans for self-employment. We also need to provide INS with a statement from the health department of the state in which you will be practicing or the VA that your work in that HPSA or MUA is in the public interest. INS 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 may be required, but the five-year commitment period does not start over. INS 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 INS has taken the position that NIW physicians cannot consular process but must file applications to adjust status. Unlike RIR 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. 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 INS 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, 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, INS will schedule the physician for fingerprinting. It is uncertain what INS's processing time for approval is after submission of this evidence.

(rev. 10/20/02)