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



Physician NIW Green Card

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Physician NIW Green Card; Surgeons in Operating Theater 200470801-001Physicians in pursuit of lawful 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. Both primary care physicians and certain specialists may qualify.

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

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

Eligibility for Physician NIW

  1. Physician NIW applicants work full-time in a designated shortage area; and,
  2. Applicants must also show previous determination by a federal agency or State Department of Health that their work in a shortage area or facility was in the public interest.

Physician NIW May File while Completing J-1 Home Residence Requirement

Physicians may file a National Interest Waiver (NIW) and an I-485 even when completing the J-1 home residence requirement. They may also file applications for advance parole and work permit along with the I-485. However, a visa number must be available for them to do so.

Must Complete Period of Service to Receive Lawful Permanent Resident (LPR) Status

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

Medical practice completed before I-140 approval (except for medical practice while holding J-1 status) counts toward the service requirement. So, for example, the 3 years of medical practice necessary to satisfy a J-1 waiver can count toward the service requirement. But the additional 2 years need not be with the same employer through which the physician obtained a J-1 waiver.

Completing the aggregate 5 years of service has no time limit.

Must Be Pursuing Type of Medical Service Contemplated in NIW Approval

USCIS may deny an I-485 if evidence is inadequate to show that physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval. USCIS may 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 and Form I-140 to support a Physician NIW. Physicians planning to divide full-time practice of clinical medicine between multiple underserved areas must submit evidence for each geographical area of intended practice.

Evidence from Physician and/or Employer:

  • Physician employees require: (1) full-time employment contract issued/dated within 6 months prior to filing date for required period of clinical medical practice; or (2) employment commitment letter from VA facility.
  • If physician will establish a practice, sworn statement: (1) committing to full-time practice of clinical medicine for required period; and (2) describing steps physician has taken/intends to take to establish practice.
  • Evidence of full-time clinical medical service: (1) in geographical area(s) designated by HHS as having shortage of health care professionals and in medical specialty within scope of HHS designation for geographical area(s); or area designated as having shortage of specialists; or (2) in VA facility.
  • Evidence that physician meets INA §212(a)(5)(B) admissibility requirements.
  • If applicable, evidence of USCIS-issued §212(e) waiver if physician was J-1 Visa holder receiving medical training in the US.

Evidence from Federal Agency or State Department of Health

  • Letter issued/dated within 6 months prior to filing date from Federal agency or department of public health or equivalent of US state (including US territories and District of Columbia) attesting that physician’s work is/will be in the public interest. Attestations from federal agencies must reflect agency’s knowledge of physician’s qualifications and background in making determinations on matters involving medical affairs to substantiate finding that physician’s work is/will be in the public interest.
  • Attestation from State public health department must reflect agency jurisdiction over place of intended practice. If physician intends to practice in more than one underserved area, application must include attestations from each intended area. Attestations from public health departments with no jurisdiction over place of intended practice are unacceptable.

Physician NIW: Reporting Requirements Following I-140 Approval

USCIS requires reports within 120 days after the second and sixth anniversaries of the Physician NIW I-140 approval. These should show that the physician has 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 including individual federal income tax returns and W-2’s as proof of completed medical service.
  • Contract, employer statement of understanding, or commitment to self-employment as proof of commitment to complete medical service in shortage area.
  • Explanation and proof concerning any breaks in, or any delay in commencement of, full-time medical service employment. And,
  • Proof of other valid immigration status under which any non-qualifying employment has been or is being performed.