National Interest Waivers for Physicians
In addition to standard NIW cases, foreign physicians who wish to practice in the US may also petition for a National Interest Waiver. The Nursing Relief for Disadvantaged Areas Act, which President Clinton approved in 1999, amended the Immigration and Nationality Act to include special rules for requests for National Interest Waivers filed by or on behalf of physicians to work in underserved regions of the US.
Qualifications for a NIW
- The foreign physician must work full-time in a clinical practice for 5 years. The beginning of the five-year time period varies depending on whether the applicant previously secured a J waiver based on service in an underserved area or not.
- The doctor must work in family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, or psychiatry.
- He/she must serve in a Health Professional Shortage Area, Mental Health Professional Area, a Medically Underserved Area, or a Veterans Affairs facility.
- The physician must obtain a determination from a federal agency or state department of health, which has knowledge of the physician's qualifications, stating that the physician's work is in the public interest.
- The physician must be competent in oral and written English.
- He/she must have passed a US medical licensing examination.
Application Procedure
- Apply for the letter from the appropriate state department of health or from the Department of Veterans Affairs to show how the work is in the national interest. This may take some time, so applying for it is generally the first step.
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Apply for the National Interest Waiver with USCIS. Along with the Form I-140 the physician must submit the following evidence:
- A full-time employment contract for the required five-year period of clinical medical practice, or an employment commitment letter from VA facility.
- If the physician is establishing his/her own practice, he/she must submit a sworn statement committing to practice clinical medicine full-time for the required five-year time period. The statement must include a description of how the physician plans to establish the practice.
- Evidence that the physician will provide full-time clinical medical service in:
- A geographical area designated by the Secretary of the US Department of Health and Human Services as having a shortage of health care professionals
- In a facility under the jurisdiction of the Secretary of the Veteran Affairs.
- The letter from the state department of health or the VA attesting that the physician's work is/will be in the public interest.
- Evidence that the physician has passed a US medical licensing exam and is competent in oral and written English.
- If the physician was a J-1 immigrant who received medical training in the US, he/she must also provide a copy of the USCIS J-1 waiver approval notice.
How will time spent in J-1 status affect the NIW mandatory service time period requirement?
Any time spent by the physician in J-1 nonimmigrant visa status does not count toward the mandatory 5-year service requirement. However, for those who fulfilled the J-1 visa waiver service requirement, the USCIS will calculate the service period beginning on the date the physician switched form J-1 to H-1B status i.e. a physician who is subject to the foreign residence requirement will not be required first to serve 3 years to obtain that waiver and then an additional 5 to obtain adjustment of status based on the NIW.
Can a physician relocate to a different underserved area during the mandatory service period?
Yes, but in order to transfer a physician must submit a new I-140 petition to document the reason for the proposed relocation.
How can physicians adjust their status?
A physician may apply to adjust his/her status at the time the I-140 is filed unless green card numbers are not immediately available based on backlogs in the EB-2 preference category. The physician may also apply for an Employment Authorization Document (EAD) and/or advance parole when filing the I-140 to allow him/her to travel outside the US.
The USCIS will only make a final determination regarding adjustment of status after a physician has completed the mandatory service period of practice in an underserved area. The filing requirements for adjustment of status for NIW physicians differ from other AOS applications because of this. A physician will not be scheduled for fingerprinting until the evidence documenting completion of the mandatory service requirement is submitted, which will be at least 5 years after the AOS petition is actually filed.
What is the Difference between a J-Visa Waiver and a NIW?
A J-1 Visa Waiver allows a J-1 visa holder to change or adjust his/her status without returning to his/her home country for two (2) years before returning to the US. To obtain such a waiver, an interested government agency must submit a waiver request along with:
- A copy of the contract between the J-1 physician and the health-care provider for 2-4 years depending on the sponsoring agency
- Proof of the J-1 holder's qualifications and strong recommendations
- Evidence that the physician will practice in a "health professionals shortage area" or a "medically underserved area" as defined by the US Public Health Service of HHS
- Evidence that extensive attempts to recruit a US citizen or permanent resident physician for the position were unsuccessful.
Please note that the approval of a NIW petition does not waive the requirements of the J-1 status category. Therefore a J-1 visa holder must still return home for two years before re-entering the US and filing an adjustment of status petition unless he/she obtains a J-1 Visa Waiver.