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NIW for Physicians Completing J-1 Waiver Service
Posted
Aug 29, 2008
©MurthyDotCom
International medical graduates (IMGs) often overcome the two-year home
residence requirement (HRR) through a waiver based on the support of an
Interested Government Agency (IGA). These waivers require three years of
service as a physician in certain designated underserved areas. The grant of
this waiver opens up the possibility of pursuing U.S. permanent residence
(informally, "green card") status. IMGs completing waiver requirements most
commonly choose between two options to file and obtain the green card: the
NIW and the labor certification-based green card process. For physicians,
both options are within the employment-based, second preference category
(EB2). The option available through labor certification will be covered in a
future article. The topic presented to MurthyDotCom and
MurthyBulletin readers at this time is the NIW option for physicians.
©MurthyDotCom
NIW Eliminates the
Labor Certification Requirement
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The NIW is separate from the J-1 waiver of the two-year HRR and serves an
entirely different purpose. The NIW is a waiver or elimination of the
standard requirement of obtaining a certification from the U.S. Department
of Labor (DOL) as the first step in an employment-based green card case.
Thus, the law does not require the employer to advertise the position or
otherwise engage in the labor certification process. The medical care that
must be provided by the physician to qualify for the waiver is considered to
be in the national interest and important enough to override the purpose of
the labor certification process.
(The VA has an internal
policy requiring recruitment efforts in NIW cases.)
©MurthyDotCom
Requirements for IMGs to File for Physician NIWs
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The NIW category discussed in this article pertains ONLY to practicing
physicians. These requirements differ from other NIW cases, which previously
have been discussed in other articles available on MurthyDotCom.
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To be eligible for the NIW, the IMG must meet two basic requirements. These
are:
-
commit to work full time in an area designated by the U.S.
Department of Health and Human Services (HHS) as having a shortage
of health care professionals
or at a Veterans
Affairs (VA) health care facility
AND
-
obtain a determination by a federal agency or a state department of
public health that the IMG’s work at such facility is in the public
interest
For cases
filed after November 1, 1998, the IMG must agree to work in an HHS
designated health care professional shortage area,
or with a VA facility,
for a period of five years before becoming eligible to obtain permanent
residence in the United States.
©MurthyDotCom
NIWs for Physicians Expanded since 2007
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Previously, unless sponsored by the VA, the NIW category for physicians was
limited only to primary care physicians, defined as family or general
medicine, pediatrics, obstetrics / gynecology, general internal medicine,
and psychiatry. However, there were significant changes in 2007 that
expanded the scope of the NIW for physicians and added flexibility. These
changes were the result of a federal court case and subsequent guidance from
the USCIS. Regular readers of MurthyDotCom and MurthyBulletin
will recall our article on this topic,
Physician NIWs Now
Available to all Specialties, published Feb 23, 2007.
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Work before NIW Approval May Count toward
Five-Year Requirement
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The time a
physician serves in a qualifying capacity in an designated shortage area or
a VA hospital
prior to the approval of the NIW petition is counted toward the five-year
requirement, if the physician was in a lawful status other than J-1 and the
medical service meets the applicable criteria. That is, the three years of
work needed for the J-1 waiver are counted toward the five years of service
needed for the NIW. Thus, for a physician who has obtained a waiver of the
J-1 two-year HRR, which requires three years of work in a qualifying area,
the NIW is an attractive option. We note that this additional two years of
work does not need to be with the same employer through whom the J-1 waiver
was obtained. The work simply needs to be in an HHS designated health care
professional shortage area
or with the VA.
©MurthyDotCom
USCIS Cannot Set Time to Complete Five-Year
Requirement
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Following
the federal court litigation and the USCIS guidance memo referenced above,
the timeframe for completion of the five years is no longer in place. The
previous requirement was that the five years of service be completed within
six years.
©MurthyDotCom
While there is no set timeframe for completion of the five-year commitment,
however, this does not mean that the physician can delay completion
indefinitely, while benefiting from an I-485, Application for Adjustment of
Status (AOS) and Employment Authorization Document (EAD). The USCIS can deny
a I-485 as a matter of discretion, if the examiner concludes that the
physician is using the pending I-485 and EAD solely to enable employment
other than the qualifying employment. The elimination of the six-year
requirement should help in situations where, due to personal or family
illness or other matters beyond the control of the physician, more time is
needed to complete the required five-years of medical service.
©MurthyDotCom
Specialists Accepted in PSAs
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As mentioned, prior to 2007 the NIW was limited to
primary care physicians, unless sponsored through the VA. General
eligibility has expanded to specialists. However, the qualifying areas in
which they are permitted to work are more limited, as they must be
classified by the Department of Health and Human Services (HHS) as physician
scarcity areas (PSAs), which have a shortage of specialists. Specialists
remain eligible without this restriction if sponsored through the VA.
©MurthyDotCom
I-485 Filings Permitted with EAD and AP Benefits
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Unlike any other green card category, the physician NIW category permits the
filing of I-485/AOS, even during the time when the applicant is completing a
J-1 waiver service requirement. (This does not eliminate the need for an
available visa number in the EB2 category at the time of the I-485 filing.)
The ability to file the I-485/AOS is significant, as it allows for filing of
the I-485/AOS by eligible dependants, who may also obtain EADs and advance
paroles (APs), which are useful ancillary benefits during the lengthy
processing of I-485s.
©MurthyDotCom
Self-Petitioning Permitted
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Another benefit of the NIW category is the ability of the IMG to
self-petition. While there must be a qualifying job offer forming the basis
of the case, the employer does not need to sponsor the case. Thus, the
employer's effort is typically far less than in cases based upon labor
certification. The category also allows for employment with a practice owned
solely or in part by the IMG. This option is not available in PERM labor
certification cases.
©MurthyDotCom
Job Changes Possible
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It is possible to change employers in the NIW category, but not under the
AC21 portability provisions. Physicians who relocate in order to change
employment while pursuing the NIW option generally are required to go
through certain additional administrative steps. These may include re-filing
Form I-140 and getting a new physician-need statement from a state health
department.
©MurthyDotCom
Conclusion
©MurthyDotCom
The NIW option is useful for IMGs and has become more widely available and
more flexible following changes implemented in 2007. Physicians should not
rule out this option because of misconceptions regarding the nature of
underserved areas. While many underserved areas are located in remote, rural
portions of the United States, many are not. There are numerous urban areas
that qualify - especially in inner cities - as well as a variety of other
locations.
©MurthyDotCom
Interested MurthyDotCom and MurthyBulletin readers should
watch for our upcoming article on the labor certification option for
physicians. |
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