by Sherrod Seward, Partner | Queen City Immigration Law | 704-500-2075
With uncertainty surrounding the H-1B program, many skilled and educated foreign nationals, especially foreign physicians finishing up their residencies, are looking into other opportunities to remain and work lawfully in the United States. One such option is the second-preference employment-based immigrant category (EB-2) authorized by the Immigration and Nationality Act (INA) section 203(b)(2). As holders of advanced degrees, medical doctors are prime candidates to pursue the EB-2 opportunity. Typically, to obtain permanent residence (“Green Card”) through an EB-2 category, a petitioning employer would have to obtain a labor certification from the U.S. Department of Labor stating that there are no qualified US workers available to fill the job opening. Then, the employer would have to file an immigrant petition for the foreign physicians it would like to hire and sponsor for a Green Card. Fortunately, there are two national interest waivers (NIW) available to avoid having to complete the labor certification process, which means the physicians can self-sponsor to obtain lawful permanent resident status.
There are two National Interest Waivers
Standard National Interest Waiver
Physician National Interest Waiver
The first National Interest Waiver can be granted to individuals a) with exceptional abilities in the sciences, arts, or business or b) who are members of a profession holding advanced degrees. Those individuals must also present a unique benefit to the United States to the extent that it is in the “national interest” of the United States to approve them for lawful permanent residence. Unfortunately, what classifies as “national interest” is determined on a case-by-case basis using a three-prong test set forth in a case of Matter of Dhanasar. The three prongs of the test are as follows:
The foreign national’s proposed endeavor has both substantial merit and national importance;
He or she is well positioned to advance the proposed endeavor;
On balance, it would be beneficial to the United States to waive the job offer and labor
Typically, the EB-2 NIW is obtained by scientists and researchers, however, anyone who qualifies for an immigrant visa under EB-2 category may petition for the waiver. Scientists and researchers are often successful because they hold extremely important patents, have their research published in prestigious publications, or have experience dealing with important matters as a contractor for the Department of Defense. However, other professionals such as dentist, physicians, pharmacist, and business people have been able to successfully petition for an EB-2 National Interest Waiver.
While there is a national interest waiver available specifically for physicians, it is not uncommon for a physician to apply for the standard waiver if they can make a persuasive case. In fact, some physicians apply for both at the same time. The reason is while the physician national interest waiver is easier to obtain for a physician, it comes with stipulations, which some physicians would rather avoid.
The Physician National Interest Waiver is the product of the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95 (“the Nursing Relief Act). Section 5 of this law from President Clinton’s administration amended INA section 203(b)(2) to provide guidelines for a national interest waiver specifically for physicians. The guidelines to obtain the waiver are as follows:
The physician must agree to work full-time in a clinical practice for an aggregate period of at least 5 years. However, the time worked while in J-1 nonimmigrant status shall not count towards the 5-year requirement;
The physician must work in one of the following medical specialties: primary care physician (family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry) or specialty physician;
The physician must work an area that is officially listed as a Health Professional Shortage Area (HPSA), Mental Health Professional Shortage Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), a Veterans Affairs facility, or a Physician Scarcity Area (PSA - for specialists only); and
Finally, the physician must obtain an attestation - a determination from a federal agency or a state department of health that has knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.
The requirements for this waiver can be a big deal for physicians looking to self-sponsor because HPSA, MHPSA, and MUA areas do not include the biggest most desirable cities in the United States. These areas are often the opposite and far away from those cities. In addition, the Veterans Affairs facility might not pay nearly as much as the physician can attract elsewhere. Five years can also be a long time after school and residency to work in an place where the physician does not want to be.
Whichever waiver a physician applies for, they can also apply for adjustment of status to become a permanent resident and for an employment authorization at the same time unless there is a backlog in available visas for the EB-2 category. Fortunately, the EB-2 category has historically been current, except for individuals born in Mainland China and India. (For current priority dates and wait times for the EB-2 and other categories, check our Priority Date Calculator). The petitioner can also obtain advance parole to travel in and out of the country while the case is being adjudicated.
For the Standard National Interest Waiver, the petitioner has to file form I-140 for EB-2, together with a well prepared argument and supporting evidence for the national interest waiver. This argument is very case specific and the assistance of a competent attorney is highly recommended. The application process for the Physician National Interest Waiver is a bit more nuanced.
The first step to the process for a Physician National Interest Waiver should be obtaining an attestation from the appropriate state department of health or the Department of Veteran Affairs because it can take a lot of time. Each state is particular about the procedures to obtain the letter and petitioners should be careful to follow the instructions carefully or risk delaying the entire petition.
Once the letter is obtained, the petitioner is set to prepare the EB-2 petition and the National Interest Waiver. The petitioner should include evidence in the petition that attest to the following requirements for each site that the petitioner intends to work (so if the petitioner desires to work in two different locations during the requisite five years, they would need to file multiple petitions):
A full-time employment contract, an employment commitment letter from a Veterans Affairs (VA) facility, or a sworn statement committing to the full-time practice of clinical medicine for the required period, if starting a practice;
Evidence that the physician will provide full-time clinical medical service in an area that is officially listed as a Health Professional Shortage Area (HPSA), Mental Health Professional Shortage Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), a Veterans Affairs facility, or a Physician Scarcity Area (PSA - for specialists only);
A letter from the Department of Veterans Affairs or a state department of health attesting that the physician’s work is or will be in the public interest;
Evidence that the physician has passed a U.S. medical licensing examination and is competent in oral and written English;
If the 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 2-year home residency requirement waiver.
To get a helpful immigration consultation or case evaluation with a licensed U.S. Immigration Attorney from Queen City Immigration Law please call 704-500-2075.