National Interest Waivers for Physicians allow IMGs and Canadian-trained doctors to obtain permanent residence if they practice in a medically-underserved area or for the Veterans Administration for 5 years. They can either self-petition or be sponsored by their employer.
The INS issued very restrictive regulations which did not comport with the law. Our law firm sued the INS to invalidate these regulations and won. Now, all physicians may be apply for NIWs, not just primary care physicians. The five years period starts whenever the physician starts to practice in the underserved area (although not while in J status), not just after the I-140 is approved.
We have obtained 1,000+ National Interest Waivers for Physicians as a result of our victory in Schneider v. Chertoff. See below.
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Court Victory in Physicians NIW Case
- Victory for Foreign-Born Physicians in NIW Case in Federal Court
- VICTORY! – 9th Circuit Decision in Schneider v. Chertoff (6-07-06)
- Order From Appeals Court (3-10-05)
- Appellents Reply Brief in NIW Appeal (3-03-05)
- Opening Brief in Support of Appeal in Physicians NIW Lawsuit (10-25-04)
- Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Summary (2-23-04)
- Plaintiffs’ Motion for Summary Judgment in Lawsuit Challenging INS’s NIW Rules for Physicians (12-22-03)
- Complaint in Lawsuit Challenging INS’s NIW Regulations for Physicians (12-09-02)
National Interest Waivers for Physicians – USCIS
The following information is taken from USCIS’s website:
Statutory and Regulatory Authorities
The Nursing Relief for Disadvantaged Areas Act (Nursing Relief Act) of 1999 amended the Immigration and Nationality Act to establish a national interest waiver (NIW) of the DOL’s permanent labor certification process for certain physicians petitioning for advanced degree professional or exceptional ability classification.
USCIS grants a NIW of the job offer requirement, and therefore the permanent labor certification requirement, for any physician seeking advanced degree professional or exceptional ability classification:
- The physician agrees to work full time as a physician in an 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 has previously determined that the physician’s work in such an area or at such facility is in the public interest.
The physician may not receive LPR status until he or she has worked full time as a physician for an aggregate of 5 years in the shortage area, or 3 years in the shortage area if the physician petitioned for the NIW before November 1, 1998.
On September 6, 2000, legacy Immigration and Naturalization Service (INS), now USCIS, issued an interim rule implementing the physician NIW provisions.
Consistent with the statute, the regulations allow filing of a physician NIW and an adjustment application without the physician first completing the 3 or 5 years of service in shortage areas. The regulations include provisions that:
- Require physicians who had an NIW denied prior to November 12, 1999, to complete the 5-year rather than the 3-year service requirement;
- Require NIW physicians to comply with reporting requirements, including submitting initial evidence within 120 days of the completion of the second year of service and additional evidence within 120 days of completing the fifth year of service to establish that they were still engaged in the area of medical practice that was the basis for approval of the NIW; and
- Limit NIW eligibility to physicians who practiced in a medical specialty that was within the scope of the shortage designation for the geographic area.
Schneider v. Chertoff
Plaintiffs in Schneider v. Chertoff challenged specific provisions of the agency’s physician NIW regulations and, in its decision issued on June 7, 2006, the Ninth Circuit found that three regulatory provisions were beyond the scope of the statutory language. The court held that:
- Medical practice completed before the approval of the employment-based petition (except medical practice as a J-1 nonimmigrant) counts toward the service requirement;
- NIW physicians who had immigrant visa petitions filed on their behalf before November 1, 1998, but were denied before November 12, 1999, need only fulfill the 3-year service requirement; and
- The regulatory period of 4 years (where 3 years of service is required) or 6 years (where 5 years of service is required) within which NIW physicians must complete the medical service requirement is not a permissible interpretation of the statute.
On the remaining two challenged provisions, the court held that USCIS has the authority to impose reporting requirements on NIW physicians to ensure compliance with the statute and declined to address the question related to whether medical specialists should be covered under the statute. The plaintiff who raised the claim had his NIW and petition denied due to abandonment, thereby mooting the issue.
USCIS remains committed to advancing the congressional intent of providing quality medical care in designated underserved areas and also is mindful of the states’ direct interest in obtaining necessary medical care in underserved areas and their critical role in coordinating with USCIS in the NIW process.
USCIS, however, is not required to allow a physician with an approved NIW and pending adjustment application to continue receiving interim work and travel authorization for an unlimited period without some evidence that the physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval.
Therefore, while USCIS amended NIW procedures to meet the Schneider decision (for example, not impose a specific timeframe within which the required medical service must be performed), an officer may exercise discretion to deny employment authorization or an adjustment application if he or she believes that the physician is using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.
