PHYSICIANS & RESEARCHERS

NATIONAL INTEREST WAIVER PETITIONS

Aytes Memo on Adjudication of NIW I-140s for Physicians in MUAs

A 1/23/07 Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, USCIS provides interim guidance for the adjudication of NIW petitions for physicians in medically underserved areas in light of Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006).

Physicians applying for employment-based immigrant visas have several alternatives. With respect to physicians and scientists, the National Interest Waivers (EB2) is divided into two subcategories.

a. The first subcategory is concerned with highly talented physicians and scientists who are seeking to obtain the U.S. Green Card Card based on the claim that his/her immigration is in the U.S. national interest. In this subcategory, the applicant needs to submit substantial documentation to show that his/her permanent presence in the U.S. would substantially benefit this country in the field of medicine, science, etc. The physician/scientist is requesting a waiver of the job offer requirement based on national interest (hence the name ‘national interest waiver’). No U.S. job offer is necessary.

b. The second subcategory concerns physicians already in the U.S. who have accepted positions to practice medicine in underserved areas of the U.S. or for a facility operated by the Veterans Administration (VA). The basic requirements to obtain the U.S. Green Card based on this subcategory are further explained in the answer to question No. 6 below.

The National Interest Waiver category (EB2) is an excellent method of obtaining the U.S. Green Card. It is applicable to both physicians and scientists with exceptional qualifications and achievements who are living outside the U.S., as well as physicians already in the U.S. who have accepted positions in the U.S. in underserved areas or at a Veterans Administration (VA) facility.

Generally, physicians can apply for permanent residency through the usual types of categories, e.g., Extraordinary ability (can be self-petitioned, and does not require labor certification); Advanced Degree (labor certification can be waived if national interest test is satisfied); Exceptional ability (labor certification can be waived if national interest test is satisfied); and Professionals (labor certification is required).

However, there are a few special requirements that may be applicable to physicians. First, a physician “who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the U.S. Secretary of Education (regardless of whether such school of medicine is in the United States)” (this is usually interpreted to mean that accredited Canadian medical schools are treated the same as accredited U.S. medical schools, for this purpose) and “who is coming to the United States principally to perform services as a member of the medical profession” is considered to be “inadmissible” under U.S. Immigration law, unless the physician (i) has passed the requisite parts of USMLE and (ii) is competent in oral and written English.

Another special rule of U.S. Immigration Law applicable only to physicians is that physicians who agree to accept employment for a certain period of time in shortage areas may be able to qualify for a national interest waiver of the labor certification requirement under the Advanced Degree, or Exceptional ability categories.

Generally, the physician must agree to work full time as a physician in an HPSA area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and a Federal agency or a department of public health in any State must determine that the alien physician’s work in such an area or at such facility is in the public interest. The physician can only obtain permanent residency after he or she has worked full time as a physician for an aggregate of five years (not including any time served in the status of J-1 in a shortage area).

H-1B

While the H-1B visa visa is more difficult to obtain than a J-1 visa, and is now subject to persistent backlog problems, the H-1B is a much more ideal choice (for those physicians that qualify) because it is not subject to any two year home residency requirement. Of course, the H-1B visa requires a U.S. employer sponsor (e.g., the hospital, clinic, etc.).

Generally, H-1B visas are available for a number of different types of medical assignments. First, the two general requirements–which are applicable to all physicians entering the U.S. under the H-1B visa–are as follows:

If the physician will perform direct patient care and the U.S. state (of intended employment) requires a license or other authorization, then the physician must have such license or other authorization unless exempt by law therefrom, and

The physician must have full and unrestricted license to practice medicine in a foreign state or has graduated from a medical school in the United States or in a foreign state.

In addition, if the physician will be conducting direct patient care (which is not simply incidental to the physician’s teaching or research), then the physician must also meet the following requirements:

The physician must have passed the requisite parts of the USMLE unless he or she is a graduate of a United States medical school (note that there is some controversy regarding whether Canadian medical grads should be considered to be graduates of U.S. medical schools, for this purpose).

The physician must have competency in oral and written English which is demonstrated by the passage of the English language proficiency test given by the Educational Commission for Foreign Medical Graduates (ECFMG), unless he or she is a graduate of a school of medicine accredited by a body or bodies approved for that purpose by the Secretary of Education (this generally means a graduate of an accredited U.S. or Canadian medical school). These two additional requirements are not applicable if (a) the physician is coming to the United States primarily to teach or conduct research, or both, at or for a public or nonprofit private educational or research institution or agency, and that no patient care will be performed, except that which is incidental to the physician’s teaching or research; or (b) the physician is of national or international renown in the field of medicine, and is a graduate of a medical school in a foreign state.

HHS J-1 Waivers

Commencing on June 12, 2003, the Department of Health and Human Services (DHHS) has begun accepting applications for waiver of the two-year home residency requirement of the J1 visa for physicians who agree to practice clinical primary care medicine in shortage areas for a period of at least three years. Previously, HHS had only accepted applications from physicians involved in medical research of high national importance. This is particularly good news for physicians who need to seek a waiver of the home residency requirement of his/her J1 visa, and who did not or were not able to apply for a Conrad State 30 waiver. Each U.S. State is only allowed 30 Conrad Waivers, and many of the States have been receiving 60-100 Conrad 30 applications each year – hence, there are a number of physicians who can benefit from the HHS waiver program, which does not have any number limitations. The HHS program effectively replaces the USDA waiver program, which was canceled more than one year ago.

The requirements to qualify for an HHS waiver are very similar to that of the Conrad 30 programs in each U.S. State – namely, the physician must practice primary care medicine in a designated underserved area for at least three years (for detailed requirements, visit the HHS website at http://www.globalhealth.gov/exchangevisitor.shtml

There are a few unfortunate requirements of the HHS waiver program for clinical primary care physicians, which could result in the exclusion of many physicians on J1 visa currently, as follows:

(i) the HHS program requires that the physician have completed his residency training prior to the submission of an application for J1 waiver; and

(ii) the HHS program requires that the physician have completed his residency training no more than 12 months prior to the submission of the application for J1 waiver, with some exceptions for applications submitted prior to October 1, 2003.

These requirements make it nearly impossible for physicians just completing their medical residency to apply for HHS waivers and remain in valid immigration status, since the J1 visa most often expires upon the conclusion of residency training. Therefore, physicians will need to attempt to take all steps possible to extend the J1 (for Board exams, etc.) so that they can remain in valid immigration status during the pendency of the HHS waiver application. In addition, physicians previously on J1 visas who currently hold O-1 visas, would be precluded from pursuing the HHS waiver if they had completed their residency more than 12 months prior.

* Up until October 1, 2003, however, the HHS will accept waiver applications from physicians who completed their training more than 12 months ago – hence, physicians in this situation should consider pursuing the HHS waiver without delay.

Please contact the Law Office of Paul B. Christensen, P.A. for further up-to-date information on the HHS J1 waiver program.

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