Employment-based, second preference petitions typically require an approved labor certification from the Department of Labor, and an employer to file a Form I-140. The National Interest Waiver (NIW) allows a foreign national to self-petition and file his/her own I-140, avoiding the PERM labor certification process and involvement of an employer. Essentially, a foreign national filing for a NIW is requesting that the labor certification be waived in the interest of the United States.
In order to qualify for EB-2 NIW, a foreign national must demonstrate that he/she has exceptional ability and his/her employment in the United States will greatly benefit the nation. Qualification for the NIW requires the foreign national demonstrates by preponderance of the evidence that:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification.
Physician National Interest Waiver
In addition to the National Interest Waiver procedure described above, a 1999 law passed by Congress established a separate NIW option specifically for physicians who work full-time for 5 years in a clinical medical practice that is in a designated Medically Underserved Area (MUA), an area with a Medically Underserved Population (MUP), a Primary Medical Health Professional Shortage Area (PMHPSA), a Mental Health Professional Shortage Area (MHPSA), or a Department of Veterans Affairs (VA) facility. Physicians who meet this 5-year service requirement are not required to prove eligibility pursuant to the 3-prong test above, and can directly file an I-140 petition based on the Physician National Interest Waiver (PNIW), as the government has pre-determined that clinical medical service in these areas is within the national interest and does not require a test of the labor market. The service can be in primary care or a specialty field, but must be a full-time clinical position.
Qualifying Shortage Areas
If the applicant is not employed by a VA facility, then their work in an MUA, MUP, PMHPSA, or MHPSA must be evidenced by an attestation issued by the relevant state health department with jurisdiction over the area where the service is carried out, confirming that the physician’s work there is in the public interest. Each state has its own procedures and requirements for applying for and issuing the attestation. If the physician’s intended practice will cover shortage areas in more than one state, each state’s health department should provide separate attestations.
The medical service must be evidenced by a 5-year employment contract dated within 6 months of filing the I-140 petition, or a commitment letter from a VA facility dated within 6 months of filing. The I-140 petition may be filed during or after completion of the 5-year period, but in order to have prior medical service counted towards the requirement, it may be necessary for a contract addendum to be executed which takes into account the prior amount of time the physician has worked in the designated area or facility. The addendum will also be necessary to fulfill the requirement that the contract be dated within 6 months of filing the I-140 petition, if the initial employment agreement was executed prior to that time. Physicians who are subject to the 3-year J-1 waiver commitment period may count that employment time towards the 5-year requirement.
Work with Reddy & Neumann
In today’s global economy, being able to navigate the immigration process is critical to your business success. If you are in need of a US work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration attorney office directly at 713-953-7787, or schedule a consultation.