National Interest Waivers and Physicians

The employment-based second preference visa (EB-2) is reserved for individuals holding advanced degrees or its equivalent, or foreign nationals who possess exceptional ability. Generally, EB-2 petitions must be accompanied by an approved labor certification from the Department of Labor. That lengthy process, however, can be waived by requesting a National Interest Waiver (NIW). A NIW permits an individual who qualifies under either EB-2 subcategories (advanced degree or exceptional ability) to forego the PERM process, which is the procedural pathway to obtaining a Labor Certification, and receive a green card without having to test the labor market.

Essentially, a NIW is just an EB-2 applicant asking the government to waive the Labor Certification requirement, because their employment would be in the interest of the United States. Why is this significant? Well, the PERM process is often lengthy and expensive, as it requires an employer to conduct a series of recruiting activities before submitting a labor certification application, so bypassing this step has obvious benefits.

How to Qualify for a National Interest Waiver as a Physician

The Immigration and Nationality Act (INA) does not specifically list the occupations that would qualify an applicant for a NIW. Rather, seven criteria are listed to help guide adjudication of these applications, and usually these waivers are granted to individuals that have shown exceptional ability in the sciences, arts or business. A Physician NIW, on the other hand, is a variation of the NIW available only to certain medical professionals. USCIS may grant a NIW to a physician who agrees to work for a period of time (generally five years) in a designated underserved area. To qualify, a physician must:

• Agree to work full-time in a clinical practice;
• Work in a primary care (such as a general practitioner, family practice practitioner, general internist, pediatrician, obstetrician/gynecologist or psychiatrist) or be a specialty physician;
• Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA) or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA); and
• Obtain a statement from a federal agency or a state department of health that has knowledge of the physician’s qualifications and that states the physician’s work is in the public interest.

Benefits of a Physician NIW

The NIW is a useful and beneficial tool for international medical graduates to utilize in obtaining permanent residency in the U.S. It is important to keep in mind, however, a physician NIW is separate from the J-1 waiver of the two-year home residency requirement. A NIW serves an entirely different purpose, but for J-1 waiver beneficiaries, a NIW may be something to consider, and there are a couple reasons why. First, the three years of qualifying service required under a J-1 waiver counts towards the five-year NIW requirement. Next, the physician NIW category permits the filing of Form I-485 while an applicant is completing a J-1 service requirement. That means eligible dependents may also file Form I-485 and even obtain EADs and advance parole. On top of that, international medical graduates are permitted to self-petition. There must still be a qualifying job offer, but the employer does not need to sponsor the case.

In addition, physician NIWs also allow for employment with a practice owned solely or in part by the international medical graduate, which is an option unavailable in PERM labor certification cases.

If you are interested in applying for a physician NIW, please visit our website to schedule a consultation with one of our knowledgeable attorneys today!