NIW for Physicians Completing J-1 Waiver Service

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.

NIW Eliminates the Labor Certification Requirement

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.)

Requirements for IMGs to File for Physician NIWs

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.

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.

NIWs for Physicians Expanded since 2007

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.

Work before NIW Approval May Count toward Five-Year Requirement

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.

USCIS Cannot Set Time to Complete Five-Year Requirement

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.

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.

Specialists Accepted in PSAs

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.

I-485 Filings Permitted with EAD and AP Benefits

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.

Self-Petitioning Permitted

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.

Job Changes Possible

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.

Conclusion

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.

International physicians seeking legal assistance with U.S. immigration matters can reach a Murthy Law Firm attorney at Doctors@murthy.com.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.