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National Interest Waivers – Physicians Special Considerations

To qualify for a national interest waiver (NIW) pursuant to INA §203(b)(2)(B)(ii), a physician must commit to working for a total of five years as a full-time clinical physician either at a facility operated by the Veteran’s Administration or in an HHS-designated Medically Underserved Area (MUA)/Health Professional Shortage Area (HPSA). The following are some tips and information on NIW adjudications.

* Requirement for a Five Year Employment Contract. In a 2007 policy memorandum, USCIS confirmed that the NIW petition may be filed at any time before, after or during the five year commitment period and that the five year commitment need not be completed within any specific period of time. However, the regulations still require the submission of a five year employment contract with the NIW petition filing.

This can present challenges for physicians who may have completed some or all of the qualifying five years of employment before filing the NIW petition. Common sense would indicate that the length of the employment contract need only be five years if the physician had not already completed part of the commitment prior to filing the petition. The literal language of the regulation requires “a full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a VA facility.”
In the event that the physician had completed all five years of service before filing the petition, the remaining “required period of clinical service” would be zero and the physician should be able to provide evidence of service completion at the time of filing the I-140 petition instead of an employment contract. In the event that the physician had completed a portion of the service requirement before filing the I-140, the physician should be able to present evidence of the completed portion, together with a signed employment agreement for a term covering the balance of the five years.

Instead, USCIS continues to insist upon an agreement dated within 6 months of filing the NIW petition that either runs for a full five year term, or acknowledges whatever time has already been worked toward the commitment with prior employers. For the physician who is currently working for the same employer with whom he or she began her service commitment, the contract can be amended to extend the term for however long is required to reach a maximum of five years.

The contract addendum should have been executed within 6 months prior to the filing of the NIW petition, and should acknowledge the amount of time the physician has already worked for the employer and the fact that the term of the contract is being extended to cover a total of five years of employment.

Physicians who have already completed the full five year term, or who are no longer employed by the employer with whom they began the service commitment should execute an addendum to their current employment contract within 6 months prior to filing the NIW petition in which both parties acknowledge the time the physician previously worked toward completion of the five year commitment.

In the alternative, such physicians could file the NIW petition with a new five year contract with an underserved area employer notwithstanding that some or all of the qualifying five years of employment was completed before filing the NIW petition. This would not mean that these physicians would have to wait an additional five years to be approved for adjustment of status; USCIS will agree to consider the prior employment evidence in the context of the adjustment of status application.

Upon submission of tax returns, pay stubs and a letter from the prior employer, USCIS will credit the previous time worked toward the five year medical service period required for approval of the I-485. Be sure to document that each location is underserved, or was underserved at the time the physician began practice there. However, at the present time, USCIS will not accept this same evidence in support of the I-140 petition because it does not take the form of a five year contract dated within six months prior to filing the NIW I-140 petition.

What Time Counts Toward the Five Year NIW Commitment Period?

Physicians who are subject to the three year J-1 waiver commitment pursuant to INA §214(l) may count that three years of employment toward completion of a five year NIW commitment. In addition, during an August 2011, USCIS confirmed that physicians who completed U.S. residency or fellowship training in a status other than J-1 may also count that training time toward completion of the five year commitment so long as the training occurred at a location that otherwise qualifies under the statute.

When May the Physician Stop Working at a Qualifying Facility?

USCIS confirmed that a physician who has completed the five year qualifying service commitment need not remain employed at a qualifying site until the I-485 is ultimately approved. This is particularly relevant for physicians from India and China who, because of backlogs in immigrant visa availability, may complete their five years of service long before their adjustment of status applications are ultimately approved.

May Specialist Physicians Submit NIW Petitions?

The physician NIW program was initially limited to primary care physicians (internal medicine, family practice, OB/GYN, pediatrics and psychiatry) unless the physician was to be employed at a Veteran’s Administration facility. In 2007, USCIS issued a policy memorandum confirming that specialist physicians working at non-VA facilities are also eligible for a physician NIW, so long as the facility is located in a Physician Scarcity Area (PSA), Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA).

What Types of Medical Practitioners Qualify for the NIW Petition?

An NIW petition under INA §203(b)(2)(B)(ii) may only be filed on behalf of clinical physicians. Dentists, chiropractors, podiatrists, and optometrists do not qualify, although they may meet the evidentiary criteria for a standard NIW petition filed under INA §203(b)(2)(B)(i).

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