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EB2 NIW 5-year MUA commitment (physician) & EB5?

Philadelphia, PA |

According to USCIS, for a physician applying for a Green Card without labor certification:
"You must agree to work full-time in a clinical practice. For most physician NIW cases, the required period of service is 5 years"

Is this "agreement" binding, in that the I-485 would not be processed under *any* category or is it binding only if applying under EB-2?

That is, can one decide to take EB-5 regional investment route for the GC after, say, two years of service in an MUA? Would the I-485 under EB-5 be processed without a hitch?

Also, can the physician continue on the H1B MUA job in United States for the one year that takes for the EB-5 to be processed?

Thank you.

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Attorney answers 3

Best Answer

A person who has applied for permanent residency based upon the physician National Interest Waiver program you refer to may apply for permanent residency on any other ground he qualifies upon, including EB-5. However, if he is J-1 and obtains a waiver based upon a commitment to work in an underserved area for 3 years, he must satisfy that requirement before he can get permanent residency on any basis whatseover.



Okay, so someone on H1B residency can take up a 5-year commitment job in an MUA and still opt out at any time and choose other options including EB-5 for the GC. Thanks for making that clear. It helps a lot knowing one is not tied in to the five year commitment no matter what.


I agree with my colleague.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


I believe that if one had an approved EB-5 petition, then one could ask the USCIS to apply that approved petition to a pending I-485 even if that I-485 had been filed based on a 5-year physician NIW petition. To expedite matters, one could also pay a new filing fee and submit a new I-485, and then withdraw the pending one upon approval. I don't see any reason why one couldn't continue to work pursuant to an H-1B petition while waiting for an EB-5 petition to be processed.