Adoption of AAO Decision Clarifies Eligibility of Specialists for Physician NIWs04 May 2016
The U.S. Citizenship and Immigration Services (USCIS) has adopted a decision of the Administrative Appeals Office (AAO) addressing the requirements for medical specialists seeking a physician-specific national interest waiver (NIW). This solidifies a long-standing practice by the USCIS, which allows all physicians, both primary care and specialists, to qualify for the NIW by working in a designated medical shortage area.
Physician National Interest Waivers
The NIW for physicians is a pathway to permanent residence for doctors who commit to working for five years in geographic locations designated by the U.S. Department of Health and Human Services (DHHS) as having a shortage of physicians. For many years, this category was limited to primary care physicians practicing family medicine, pediatrics, internal medicine, obstetrics / gynecology, or psychiatry. The rationale behind this is that the DHHS designations of under-served areas only considered the availability of primary care, not specialists. Specialists could only qualify by working for the Veterans Affairs medical facility.
In 2007, as the result of a federal court’s holding in Schneider v. Chertoff, there were important changes to the physician NIW category. These changes included the availability of the NIW option for specialists. However, the USCIS policy memoranda on the Schneider case references physician scarcity areas (PSAs), and could be read as requiring specialists to work in PSAs to qualify for the NIW. PSAs have not existed since January 2008 and were less common than other types of designated shortage areas.
Overview of Matter of H-V-P
The newly adopted case, Matter of H-V-P, involved a hematologist / oncologist who sought approval of an NIW petition based upon work in a location designated as a health professional shortage area (HPSA) and a medically under-served area / population (MUA/P). The NIW petition was denied because the work location was not a PSA.
The matter was appealed. The applicant argued that neither the law nor the Schnieder case interpretation supported a limitation to PSAs for specialists. In addition, evidence was presented showing that, since the Schneider decision, NIW petitions have regularly been approved for specialists working in any designated shortage area. This broad interpretation is further supported by the wording in the adjudicator’s field manual (AFM) that accompanied the Schnieder memorandum.
AAO Determine Congress Intended to Provide Broad Eligibility to Physicians
In ruling in favor of the applicant, the AAO observed that, if the NIW option for specialists was limited to the nonexistent PSA program, no specialists could obtain NIW approvals. The AAO determined that such an interpretation ran counter to Congress’s intent to improve access to medical care in under-served areas.
The adoption of Matter of H-V-P does not reflect a change in physician NIW practice. However, it is an important clarification of an issue that periodically created uncertainty for specialists. This statement of policy should serve to end any confusion in this area and result in benefits for both physicians and patients in medically under-served areas.
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