The provision for National Interest Waivers enables any worker with an advanced degree or exceptional ability to self-file an I-140 immigrant petition in the EB-2 category without employer sponsorship or a labor certification, if their work is deemed in the “national interest” according to a 3-prong test.
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 Matter of Dhanasar test, 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.
Adjustment of Status
Physicians who qualify for the PNIW are still subject to the per-country caps for the EB-2 immigrant category, and must wait for their priority date to become current before they are eligible to apply for adjustment of status in the U.S. However, physicians with a previously-approved I-140 petition may port their priority date from that earlier application to the PNIW I-140, which may enable them to apply for adjustment of status if that date is current according to the Department of State’s visa bulletin. The I-485 application may be filed once a visa number is available, even if the 5-year service requirement has not been completed; however, the I-485 application will not be approved by USCIS until the service requirement is met. USCIS requests evidence of progress toward completing the requirement, such as pay statements, tax returns, and recently-dated employment confirmation letters, at the 2- and 6-year anniversaries of the I-140 approval.
To determine whether the Physician National Interest Waiver may be an option for your permanent residence, we recommend consulting with an attorney to evaluate whether your current of past medical work may qualify, and to determine a potential timeline and filing strategy.
By: Rebecca Chen
Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.