Kirberger PC: a boutique law firm providing US visa and immigration services since 1998.



Physician NIW Green Card

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Surgeons in Operating Theater 200470801-001; Physician NIW Green CardPhysicians in pursuit of permanent residence in the US may be exempt from the PERM labor certification process if they meet requirements for the Physician National Interest Waiver (Physician NIW) green card category.

Petitioners requesting a National Interest Waiver (NIW) on behalf of a qualified physician, or physicians self-petitioning for second preference classification based on medical service in an HHS-designated underserved area or Department of Veterans Affairs (VA) facility, must still meet all eligibility requirements for this immigrant classification to be eligible for the national interest waiver.

Previously, only primary care physicians (defined as family or general medicine, pediatrics, obstetrics/gynecology, general internal medicine and psychiatry) qualified under the Physicians NIW category, except for specialists working for VA facilities. However, specialists now qualify for the Physician NIW regardless of specialty provided that they work in HHS designated geographic areas with a shortage of medical specialists (Physician Scarcity Areas, or PSA’s).

Eligibility for Physician NIW

  1. A Physician NIW applicant must agree to work full-time as a physician in an area designated as shortage by the HHS or a VA facility; and,
  2. A Physician NIW applicant must demonstrate that a federal agency or State Department of Health has previously determined that his or her work in a shortage area or facility was in the public interest.

A physician may file a National Interest Waiver and an I-485, advanced parole and work authorization even when completing the J-1 home residence requirement, although a visa number must be available for him or her to do so.

A Physician NIW applicant may not receive legal permanent resident status in the US until s/he has worked full-time as a physician for an aggregate of 5 years in the shortage area (3 years if the NIW was filed prior to November 1, 1998). In addition, a Physician NIW can be filed before the beneficiary actually completes the 3 to 5 years of service. Finally, a Physician NIW applicant can change jobs, but cannot take advantage of porting under AC21 provisions. S/he may have to re-file the I-140 to obtain a new statement from a relevant state department of health.

Medical practice completed before approval of the I-140 (except for medical practice while holding J-1 visa status) counts toward the service requirement. So, for example, the 3 years of medical practice necessary to satisfy a J-1 waiver are counted toward the service requirement; but the additional 2 years required need not be with the same employer through which the physician obtained his or her J-1 waiver.

There is no time limit on completing the aggregate 5 years of service. However, USCIS may deny an I-485 if there is inadequate evidence to demonstrate that the physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval. An adjudicator may exercise discretion to deny employment authorization or adjustment of status if s/he believes the physician to be using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.

Physician NIW: Required Evidence

The petitioner must submit the following evidence along with Form I-140 to support the request for a Physician NIW. For physicians planning to divide the practice of full-time clinical medicine between more than one underserved area, the following evidence must be submitted for each geographical area of intended practice:

  • If the physician will be an employee, a full-time employment contract issued and dated within 6 months prior to the date the petition is filed for the required period of clinical medical practice, or an employment commitment letter from a VA facility. If the physician will establish his or her own practice, the physician’s sworn statement committing to full-time practice of clinical medicine for the required period describing the steps the physician has taken or intends to take to establish the practice.
  • Evidence that the physician will provide full-time clinical medical service: (1) in a geographical area(s) designated by HHS as having a shortage of health care professionals and in a medical specialty that is within the scope of the HHS designation for the geographical area(s) or is designated as having a shortage of specialists; or (2) in a VA facility.
  • A letter issued and dated within 6 months prior to the date on which the petition is filed from a Federal agency or the department of public health or equivalent of a US state (including territories of the US and the District of Columbia) attesting that the physician’s work is or will be in the public interest: any attestation from a federal agency must reflect that agency’s knowledge of the physician’s qualifications and the agency’s background in making determinations on matters involving medical affairs to substantiate the finding that the physician’s work is or will be in the public interest.
  • An attestation from the public health department of a US State, US territory, or the District of Columbia must reflect that the agency has jurisdiction over the place where the physician intends to practice clinical medicine. If the physician intends to practice clinical medicine in more than one underserved area, attestations from each intended area of practice must be included. Attestations from public health departments of US States, territories or the District of Columbia that do not have jurisdiction over the place in which the physician intends to practice are not acceptable.
  • Evidence that the physician meets the admissibility requirements established by § 212(a)(5)(B) of the INA.
  • If applicable, evidence of the USCIS-issued waivers of the requirements of § 212(e) (2 year home residency requirement) of the Act if the physician has been a J-1 Visa holder receiving medical training in the US.

USCIS will continue to require submission of reports within 120 days after the second and sixth anniversaries of the Physician NIW I-140 approval showing that the physician has either completed or is in the process of completing the required years of qualifying medical service. USCIS will issue an RFE (request for further evidence) for evidence of compliance that may include:

  • Employment documentation such as individual federal income tax returns and W-2 forms as proof of the amount of medical service the physician has completed.
  • A contract, an employer’s statement of understanding, or a commitment to self-employment as proof of a commitment to complete the medical service in the shortage area.
  • Explanation and proof concerning any breaks in, or any delay in the commencement of, the full-time medical service employment. And,
  • Proof of other valid immigration status under which any non-qualifying employment has been or is being performed.