Section 1

Stephen M. Perlitsh P.C.

49 West 45th Street, Floor 6

New York, NY 10036

Phone: (212) 840-3878

Fax: (917) 510-0872

National Interest Waivers for Physicians

Section 203(b)(2) of the Immigration and Nationality Act of 1990 permits the filing of an employment-based second-preference immigrant visa petition for an alien who is “either a member of the professions holding an advanced degree” or “of exceptional ability in the sciences, arts or business.” The petition incorporates a request for a waiver of the requirement of a job offer (the labor certification requirement), on the grounds that the alien would benefit the national interest of the United States.

The National Interest Petition, a procedure to obtain Resident Alien Status, can be filed at any time, regardless of status, if a physician will be employed in a HPSA, or perhaps in a MUA, or at a VA facility. The Petition, which is submitted to USCIS, is often referred to as "National Interest Waiver." (It is not to be confused with the J-1 waiver). This petition for an Alien Worker seeks a waiver of the Labor Certification process on the grounds that the services to be rendered by an individual will benefit the National Interest of the United States. Occasionally, USCIS has requested a State License to practice medicine, before approving the Petition. This is probably not required. In most states, the license will not be issued prior to the completion of Residency and the verification of credentials. For positions in New York State, a Limited License would be acceptable. However, completion of Residency and credential verification is required. It is uncertain whether a NYS Limited Permit would be acceptable. Again, the license is probably not statutorily required for processing the petition.

On August 7, 1998, after approving numerous National Interest Petitions for different professions, including physicians who agreed to serve in Health Professional Shortage Areas, the Administrative Appeals Office of the United States Citizenship and Immigration Service issued a decision denying a National Interest Petition for an Engineer employed by the New York State Department of Transportation (hereinafter referred to as “NYSDOT”). The decision was accepted by USCIS as a precedent in the area of establishing what would truly be deemed by the USCIS as being in the "National Interest." NYSDOT signaled the end of the previous policy of approving national interest petitions for physicians who would be employed in HPSA locations. It established extremely difficult guidelines which had to be met, in order to obtain approval of an NIW.

On November 12, 1999, President Clinton signed a bill, known as H.R. 441. This bill , once again allows physicians who agree to serve in HPSA’s, MUA’s and VA facilities, to file National Interest Petitions which will lead to Permanent Resident Status, on the grounds that the services they render will benefit the national interest of the United States.

The guidelines issued by the United States Citizenship and Immigration Service do not follow the actual Bill signed into law. Among the requirements for qualifying for the National Interest Waiver are the following:

1. Physicians must agree to be employed full-time in an area designated by the Secretary of Health & Human Services as being a HPSA or a health care facility operated by the Department of Veteran’s Affairs, as long as a federal agency or Department of Public Health of any state has determined that the alien physician’s services at the facility was in the public interest.

2. Adjustment to Permanent Resident Status will not be granted to the physician until the physician has completed a total of five years (not including time spent as a J-1 physician holder) as a physician employed in an area, or areas, designated by the Secretary of Health & Human Services as being a HPSA, or a facility under the jurisdiction of the Secretary of Veteran’s Affairs. Applications for Adjustment of Status may be filed by the physician prior to the completion of the five-year commitment. However, approval of the application will be reserved until after the five-year employment commitment has been satisfied. The applications for Employment Authorization will be processed in a timely fashion.

3. Physicians whose National Interest Waivers were filed with the USCIS prior to November 1, 1998, but were denied based upon the guidelines issued in NYSDOT, will not have their cases approved, unless an appeal of their prior case is still pending.

b. As an alternative to #5, the State Department of Health attesting that the alien physician’s work is or will be in the public interest and reflecting that they have jurisdiction over the place where the individual intends to be employed , dated and issued within six months of filing the petition.

Once the National Interest Waiver is approved, an Application for Adjustment of Status can be filed, as long as the Priority Date on the case has been reached. If the employee leaves the place of employment listed on the NIW, the individual can still benefit from the approved petition, if more than six months have passed from the filing of the Application for Adjustment of Status and the new position is also in a HPSA or other facility qualifying for an NIW. However, a new National Interest Petition must be filed and approved.

A question which is being raised constantly is whether an individual should file an application for Alien Employment Certification (Labor Certification) or proceed with the National Interest Waiver. For physicians who have been granted waivers of the J-1 two-year foreign residency requirement, and are presently employed in H-1B status, it is uncertain whether the procedure for Permanent Resident Status through Labor Certification will result in the granting of Adjustment of Status in a more expedient fashion than the National Interest Waiver. The Labor Certification process requires the physician to remain employed with the petitioning entity after being granted Permanent Resident Status, unless the Application for Adjustment of Status is pending more than 180 days. See the attached memo regarding Labor Certification. Presently, processing an application for Labor Certification, with Reduction in Recruitment, can average eight months to two years or more, depending on the State of employment. It will take at least six months to process the I-140 petition, and it presently takes a minimum of another year and a half to process the application for Adjustment of Status. Adding on a reasonable period of six months of employment with the sponsoring employer after the Application for Adjustment of Status has been granted, will probably come close to, if not exceed, the five year period in which individuals who elect to utilize the National Interest Waiver process. However, processing times do vary. Please note that time can be saved by processing the last phase of the case at the U.S. Consulate in your home country. An individual can do both cases simultaneously.

Different interpretations exist as to when the five-year requirement starts accruing. If you are a physician who has been granted a J-1 Waiver, the five years start accruing on your first day of employment in H-1B status regardless of when the National Interest Petition was approved. If you are a physician who was never in J-1 status, the five years start accruing upon approval of the National Interest Petition. There is no rhyme or reason for the discrepancy.

Last update: April 25, 2004