I-485 Applications for NIW Physicians Who Have J-1 Waiver
Posted Nov 02, 2001

William R. Yates, Deputy Executive Associate Commissioner of the Immigration Services Division, INS Office of Field Operations, recently issued a memorandum concerning Adjustment of Status applications for NIW Physicians in underserved areas.

Questions have been raised as to whether a physician in the process of fulfilling his or her service requirements under section 214(l) of the Immigration and Nationality Act (the "Act") (referring to those who have obtained the J-1 waiver) may file the adjustment of status application prior to completion of her/his required period of service in an underserved area. The adjustment of status in this type of case would be based upon an approved National Interest Waiver (NIW) I-140. Section 214(l)(2)(B) of the Act states that no one who has received a waiver and has failed to complete the stated requirements can apply for permanent residence without first complying with the requirements of 212(e) (the two-year home residency requirement).

INS regulations interpret the statute such that the alien may not even file the adjustment application until the requirements of section 214(l) are fulfilled. This interpretation justifiably guards against inadvertently granting adjustment to an alien who has not fulfilled the waiver requirements.

The September 6, 2000 interim rule addressing NIWs for physicians, however, permits the beneficiaries to submit an adjustment application upon approval of the I-140. The statute also provides that the NIW provision should not preclude the doctor from filing the adjustment of status application before completion of the period of service in the underserved area.

Particularly since many NIW physicians are former J-1 visa holders who have obtained waivers of the two-year foreign residence requirement, and have changed their status to that of H1B nonimmigrant with a three-year commitment, the INS has decided that:

a) A physician who received a waiver under section 214(l) of the Act AND who is the beneficiary of an approved I-140 based upon NIW may apply for adjustment of status upon receipt of those approvals. However, the service may not approve the adjustment application until the physician has completed the service requirement under both section 214(l) and section 203(b)(2)(B)(ii)

b) The H1B physician must fulfill her/his time commitment with the H1B employer. The only exception to this requirement is the provision for obtaining permission to complete the period of service with a different H1B employer, as outlined in section 214(l) of the statute and in the INS regulations.

c) After fulfilling the service requirement, the physician may continue his/her employment with the H1B petitioner in order to satisfy the remaining two years of the NIW five-year service requirement or may seek a different employer, provided the place of full-time employment is with a U.S. Department of Veterans Affairs facility or in a U.S. Department of Health and Human Services designated medically underserved area.

A physician who has received a waiver under section 214(l) of the Act, but who has not received an approved I-140 with an approved NIW, may not apply for adjustment of status until s/he has completed the service requirement under section 214(l) of the Act. Of course, in such a case the person would need a basis for filing for adjustment; most likely either an employment-based petition (other than an NIW) or a family-based petition.