NIW vs. Labor Certification for Physicians

MurthyDotCom and MurthyBulletin readers were provided with information on the National Interest Waiver (NIW) option for international medical graduates (IMGs) in our August 29, 2008 article, NIW for Physicians Completing J-1 Waiver Service. In contrast, the labor certification-based permanent residence (green card) option for IMGs is explained here for our readers. These options are not limited to IMGs who previously held J-1 status, but are also available to IMGs who completed training in another status, including H1B. Generally, a physician who utilized the H1B for training may find the labor certification option more attractive, for reasons provided.

Basic Labor Certification Based Green Card Process

Labor Certification

The most common employment-based route to permanent residence starts with a labor certification. Basic information about the labor certification process, known as PERM, is available on MurthyDotCom. The employment-based labor certification case is based on a full-time, permanent job offer by a U.S. employer. The process consists of three steps, the first of which is the labor certification. The labor certification approval is necessary to proceed to the remaining two steps.

I-140/I-485

The second and third steps in the employment-based process are the I-140 employer petition for foreign national worker and the I-485, application for adjustment of status. The I-140 is filed upon approval of the labor certification. The timing of the eligibility to file the I-485 is far more complex. While the procedures allow for the filing of the I-485 with the I-140, this is only permitted if the priority date is current for the specific employment-based category (most likely EB2 for IMGs), and based on the country of birth of the IMG to allow for the filing of the I-485.

I-485 Timing Issues

As outlined above, there are two fundamental requirements that must be met in order to file the I-485. First, a visa number must be available in the category of the case, and for the applicant’s country of birth. This is based upon the case’s priority date (the date the labor certification was filed in this instance). This date must be current or available, based on information published monthly by the U.S. Department of State (DOS). The DOS Visa Bulletin employment-based category chart is used to determine one’s priority date by finding the cell in the table based on the category (EB2) and the country of birth. The Visa Bulletin is issued monthly and can change drastically from one month to the next. In the EB2 category, the need to wait extended periods of time to file the I-485 due to a lack of visa numbers generally is a problem faced by those born in India or China. All other IMGs can usually file the I-140/485 concurrently, but there can be months in which this would not be possible, based upon the content of the DOS Visa Bulletin.

The second requirement applies only to former J-1 physicians. In a labor certification case, unlike the NIW, the I-485 filing is not permitted until the three years of employment, required under the terms of the waiver, are completed. These physicians must complete the waiver obligation, and have visa numbers available to file their I-485s. The ability to apply for the employment authorization document (EAD) as well as the ability to obtain advance parole (AP) is dependant upon an I-485 filing.

Considerations and Comparisons to NIW Cases

More Employer Involvement in Labor Certification Case

The labor certification case must be employer sponsored; unlike the NIW, which can be self petitioned by the IMG. In the labor certification case, the employer must demonstrate an ability to find a willing, available, and qualified U.S. worker for the job. The worker recruitment requirements are highly regulated, as is the entire process. Thus, the employer must be willing to work within the legal parameters of PERM. It is not simply a matter of signing an offer letter, as an employer unfamiliar with the process may incorrectly believe.

All Geographic Locations and Medical Specialties are Eligible

Unlike the NIW, a labor certification-based case can be filed by a U.S. employer without consideration of the geographic location, and without any restrictions relating to the physicians field or specialty.

No Five-Year Service Requirement

This type of green card case is based upon a permanent (meaning indefinite) job offer. The foreign national physician is expected to work for the employer for a reasonable period after the case is approved. While not required, most physician beneficiaries work for their employers / sponsors during all or most of the green card application process. This amount of time can vary considerably, depending in large part upon the timing of the I-485 filing, discussed above. Thus, for some, the process and commitment to the employer is well under five years, while for others, it is greater. An IMG considering this process should do so through the hospital or other employer with whom s/he has an anticipated long-term, mutually-agreeable relationship.

Job Flexibility

In labor certification-based green card cases, there may come a time when the foreign national beneficiary is able to change jobs without disrupting the pending case. This arises once the case is eligible under the provisions of the law referred to as AC21. The basic eligibility for this is an approved I-140 petition and an I-485 application that has been pending for at least 180 days. At that time, the case can continue through an alternative job offer, as long as the new position is in the same or a similar job classification. Unlike the NIW, there is no need to re-file any application or petition in order to make this job change.

Other Issues

Physicians should not think of these options as mutually exclusive. It is possible, in some instances, to pursue both options, and utilize the one that is ultimately most advantageous. Physicians whose training is competed in H1B status often have issues regarding the six-year limitation. The ability to extend the H1B beyond the six-year limit depends upon green card case filings. These requirements must be considered when developing a long-term strategy.

Conclusion

Of the NIW and the labor certification-based green card process, each has certain advantages and disadvantages that vary depending upon the IMGs needs and the employment. For some, the NIW may not be an option at all, while for others it may be a good option. Since there are many considerations, and the process for either the NIW or the labor certification involves a wide variety of immigration law nuances, it is advisable to work with an experienced and knowledgeable immigration attorney to help analyze the options that work best for the physician and applicable family members.