Physicians 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).
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.
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:
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: