Written by attorney Carl Michael Shusterman

NIWs for Physicians

Generally, if a person qualifies for a green card under the EB-2 category, they must persuade their employer to undergo the PERM process. However, in 1999, Congress passed a law exempting certain foreign-born physicians from this requirement.

Initially, INS regulations greatly restricted which physicians were eligible for NIWs. However, our law firm sued the INS in Federal Court, and, in 2006, we prevailed in our lawsuit. As a result, the restrictive regulations weresignificantly modified by the government.

Foreign physicians who agree to practice in a Health Professional Shortage Area (HPSA), a Medically Underserved Area (MUA), a Mental Health Professional Shortage Area (MHPSA) or for the Veterans Administration (VA) may either self-petition or have their employer submit a petition in the EB-2 category under the National Interest Waiver (NIW). To obtain the benefits of this law, the physician must: (1) agree to work full time in a health shortage area or for a Veteran’s Affairs (VA) facility; (2) a federal agency or state public health department has to determine that the work is in the public interest; and (3) the physician must work full time for an aggregate of five years before he or she is eligible for a green card.

An NIW physician who will be employed in a HPSA, MUA, MHPSA or a VA facility must contact the state Department of Health in the state where the practice site is located, and obtain a letter stating that the physician’s work will be in the public interest. Each state has its own procedures for applying for the letter.

The next step is for the foreign physician to apply for the NIW by submitting the following evidence with Form I-140 (Petition for Immigrant Worker) to the USCIS. If a foreign physician plans to serve at more than one practice site, the following evidence must be submitted for each work location:

The foreign physician’s full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a Veterans Affairs (VA) facility.

Evidence that the foreign physician will provide full-time clinical medical service:

in a geographical area or areas designated by the Secretary of HHS as having a shortage of health care professionals and in a medical specialty that is within the scope of the Secretary’s designation for the geographical area or areas; or

in a facility under the jurisdiction of the Secretary of VA.

A letter (issued and dated within 6 months prior to the date on which the petition is filed) from a State Department of Health or the Department of Veterans Affairs attesting that the foreign physician’s work is or will be in the public interest.

If the foreign physician was a J-1 nonimmigrant who received medical training in the United States, he or she must also provide a copy of the USCIS approval notice of the J-1 visa waiver (I-612).

If the foreign physician will establish his or her own practice, the physician must submit a sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to take to establish the practice.

Evidence that the foreign physician has passed a U.S. medical licensing examination and is competent in oral and written English.

Provided visa numbers are available, the physician and his or her family members can apply for Adjustment of Status along with the I-140 NIW petition. This enables the physician’s spouse and children to obtain both EAD work permits and Advance Parole travel documents.

Green cards will be granted after the completion of 5 year service requirements. In addition, the NIW physician is required to submit HPSA service compliance documentation to the USCIS within 120 days after the second and the sixth anniversaries of the date that NIW immigrant petition was approved. When the USCIS is convinced of the five year service, they will be able to grant the green card.

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