NIW for Physicians and Doctors in Underserved Areas

Physicians are some of the most useful people in the world. Without them, there’s no telling where we would be as a species. Because of their value, the USCIS tends to extend a helping hand through the immigration process. If you are a doctor looking to obtain an EB-2 green card, keep reading to find out how you can be eligible for a National Interest Waiver for physicians.

EB-2 Green Card

Because you can only obtain a National Interest Waiver for physicians through an EB-2 green card, it helps to know the basics of this immigrant visa.

The EB-2 is reserved for people who fall into one of two categories:

  • People who have exceptional ability in their field. This can be demonstrated through awards, acclaim by peers, or a substantial salary.
  • People who hold advanced degrees (master’s or higher) and wish to work in the U.S. within the field of that degree.

What is an NIW?

One of the first steps in the process towards any employment-based green card is to obtain an employer who will sponsor you through the process. This requires your employer to get a PERM Labor Certification and go through an extensive recruitment process in order to determine if any qualified American workers are available for your position.

On top of that, there is the possibility of getting audited by the Department of Labor, which could lengthen the processing time for up to a year and a half.

Because the only exception to this rule is the EB-1A green card, which requires international acclaim, it would seem as though there isn’t a place for entrepreneurs, lawyers, and doctors in this system.

That’s where the National Interest Waiver (NIW) comes in. With this, you can waive the PERM requirement and bypass the need for an employer altogether, allowing people like practicing physicians to live and work permanently in the U.S.

However, you must be able to prove to USCIS that your practice will be beneficial to the U.S. and that it is in America’s best interest to waive your employer requirement. As of now, there are two kinds of National Interest Waivers: the standard NIW and the physician NIW.

For the standard NIW, the evidence that qualifies as “in the national interest” can vary from case to case. Generally, you want to be able to demonstrate one or more of the following things:

  • Your entry into the U.S. will benefit the economy.
  • You will create jobs for U.S. workers.
  • Your entry will benefit education or health care.
  • You will create housing opportunities for underprivileged U.S. citizens.
  • Your entry is requested by an agency of the U.S. government.

National Interest Waiver for Physicians

However, in 1999, the Nursing Relief for Disadvantaged Areas Act was implemented. This created a new set of rules for doctors attempting to obtain a National Interest Waiver for physicians. The new requirements are:

  • You must be a J-1 physician in one of these disciplines: pediatrics, internal medicine, obstetrics, psychiatry, or family medicine.
  • You must sign an agreement to work for at least five years in your practice.
  • You need to work in one of the following areas:

Attestation Letter for an NIW

You will need to get an attestation letter for an EB-2 NIW from an appropriate body depending on where you are to serve. If you are applying through the Department of Veterans Affairs, you can apply through the Veterans Affairs facility where you will be employed.

If you are planning to serve in a shortage area, you will need a statement from a government agency or the state department of health saying that your qualifications make it so that your work is considered in the public interest. Each state has its own process when it comes to applying for an attestation letter. You will need to contact the correct officials in the state to learn about the required procedures. The letter must be issued and dated within the six months preceding the date the NIW petition is filed.

Required Documentation for an NIW for Physicians

The following documentation must also be submitted as part of your supporting evidence for the NIW green card application:

Employment Contract

You must present an employment contract for the required five-year period of clinical medical practice or an employment commitment letter from a VA facility. The agreement must be dated within six months prior to the date the NIW petition was filed.

If you are going to establish your own practice, you must present a sworn statement indicating your commitment to full-time clinical or medical practice. The sworn statement must describe the steps you have taken so far or plan to take in establishing the practice. If you have made financial commitments toward establishing the practice, you can submit related documents such as an office lease. In lieu of that, you can present a well-detailed business plan for the proposed private practice.

Evidence of the Right Worksite Location

The supporting documents must include evidence showing that your full-time medical service will be in any of the following places:

It is important to note that in the standard NIW case, not all listed factors need to be met. However, for doctors, all four major requirements must be fulfilled in order to qualify for a National Interest Waiver for physicians.

Foreign doctors that seek a National Interest Waiver for physicians fall into one of two categories:

  • Physicians who will be working for an employer but do not wish to go through the PERM Labor Certification Process
  • Physicians who have their own practice and therefore cannot obtain a PERM for themselves

How Physicians Can Apply

One of the most difficult and time-consuming aspects of this process is getting the statement that shows how your work is in the national interest of the U.S. Because of this, it is usually a good idea to begin with this step so that it does not conflict with other steps.

You can get your statement from the Department of Veterans Affairs facility in the area that you will be working or contact the state department of health in the state that you will practice.

Once you have your statement, you will need to apply for the National Interest Waiver for physicians with the USCIS. When you file your I-140, you need to provide the following:

  • Proof that you have a full-time contract for the first five years of your employment in the U.S. This is only required if you will have an employer in the U.S.
  • If you are starting your own practice, then you will need to provide a sworn statement saying that you will be practicing full-time in the underserved area for the full 5 years. You should also submit any evidence that you have taken or intend to take steps to establish your practice.
  • Proof that you are a fully licensed physician who has passed a U.S. medical licensing exam. You must also be able to speak, write, and understand English.
  • If you originally came to the U.S. under a J-1 visa, then you will need to submit your J-1 waiver approval notice.

Steps to Getting an NIW for Physicians

File Form I-140

All EB-2 applicants must file a Form I-140, Petition for Alien Worker, and will need to submit the form along with all the supporting documents listed above. Your Form I-140 must be submitted to either USCIS Texas Service Center or Nebraska Service Center, as those are the two service centers that process NIW applications.

File Form I-485

After the approval of your Form I-140, the next step is to file Form I-485, Application to Register Permanent Residence or Adjust Status, when the immigrant visa number becomes current. You can also submit Forms I-765 and I-131 along with your I-485 petition. Form I-765 is filed to request for Employment Authorization Document while I-131 is for Advance Parole, otherwise known as a travel document. USCIS allows adjustment of status applicants to file these two forms along with their I-485 due to a longer processing time. On the order hand, Forms I-756 and I-131 are processed within a few months.

As an NIW physician applicant, your adjustment of status will not be approved until you have completed the required five years of medical service. Upon receiving your I-485 petition, USCIS will notice the date you started your medical practice. They will also send you a list of evidence to submit within a given period of time after you might have started the service. Until USCIS is convinced that you have fulfilled the required years of service, your adjustment of status will remain pending.

For example, a physician with a five-year service requirement must submit initial evidence within 120 days after the second anniversary of the I-140 petition approval. This initial submission must include well-detail, documented evidence of at least 12 months of qualifying employment during your first two-year period in service. Then there will also be another evidence submission at the end of the five-year aggregate service requirement.

The good news is that, while the adjustment of status application is pending, your employment authorization document (EAD) and advance parole (AP) document will serve as a valid work permit and travel document, respectively. So you won’t have to worry about being flagged for unauthorized employment or have any issues embarking on international travel. 

Your EAD and AP can be renewed for as many times as needed while the I-485 remains pending. However, immediately you complete your required medical service years and your I-485 is approved, you get your green card, meaning you won’t need the EAD and AP anymore. Your green card covers all requirements for lawful permanent residence, which include valid employment and traveling freely in and out of the U.S.

NOTE: While the EAD can serve as your valid work permit, it is advisable to still maintain your nonimmigrant status throughout the NIW period. This is to avoid experiencing a gap in work authorization in the event that there is a delay in processing an EAD renewal. 

National Interest Waiver Concurrent Filing

It is also possible to file your I-140 and I-485 petitions concurrently (at the same time) if there is no quota delay. Whether concurrent or separate applications, you can always file I-765 and I-131 applications with your I-485 and expect them to be processed within a few months while waiting for I-485 approval.

Required Evidence After Two Years of Medical Service

Within the 120 days after the second anniversary of your I-140 approval, you will need to demonstrate the completion of at least 12 months of qualifying medical practice by submitting the following evidence to USCIS:

  • An employer letter indicating the date you started medical service in the facility or practice area. The letter must state that you have rendered full-time medical service during the two years. If you had any breaks within the two-year period, it must be noted in the letter.
  • Your federal income tax returns and W-2 forms that will be available after the second anniversary of the I-140 approval
  • If your NIW I-140 approval is used to establish a private practice, you must submit documents specifying the actual establishment of the business including LLC or incorporation documentation. You may also need to present business tax returns and tax withholding documents, as well as a business license

Required Evidence After Five Aggregate Years of Service

Within 120 days after completing the required five years of medical service, you must submit evidence similar to the above items to USCIS. The difference is that you are going to need to provide all documents after the required five-year period. In addition, you will also submit a medical examination report.

If all the above steps are completed, your Form I-485 adjustment of status petition may be approved, and you and your dependents will receive your green card and become lawful permanent residents.

NIW for Physicians FAQ

NIW for Physicians in Underserved Areas

Can time as a J-1 holder count toward the service requirement

Unfortunately, the five-year service requirement only begins when you are under EB-2 NIW status and are working in the underserved area.

Can I change the location of my practice to a different underserved area?

Of course. There are no restrictions to moving your practice so long as the first five years are spent serving any medically underserved area in the U.S. However, you will need to file a new I-140 detailing the reasons for moving before relocating.

What if my area is no longer considered underserved?

During the application process, if the proposed area is no longer considered underserved, then you will need to locate to an area that is underserved. However, if this happens while you are working in an underserved area within your 5-year service period, then you will not be required to move to a different area.

Can I get an NIW based on past employment in a shortage area or VA facility?

Yes, you may apply for an NIW based on your past employment in a VA facility or shortage area. This will require submitting a public interest letter from the VA or the state health department. Keep in mind that the state department has the prerogative to grant or deny your request for such a letter. For instance, some agencies may not honor a request from a physician who no longer works in a facility within the state.

When can I file for adjustment of status?

You will be able to file for adjustment of status when the USCIS receives evidence that you have been working in a medically underserved area for the full five-year period. Only then will the USCIS make a decision on your I-485 form to change your status. Because there are regular intervals in which you will be required to submit evidence, be sure to work with your immigration attorney to make sure that all the requirements are met.

How Our Immigration Attorneys Can Help

Because the requirements for a National Interest Waiver for physicians can easily vary from case to case, it helps to have an immigration attorney look at the details of your case to determine what qualifies as evidence of national interest.

Our lawyers specialized in employment-based immigration and a ready and willing to help you obtain an NIW and be on your way to your green card. To schedule a consultation with one of our experienced attorneys, you can fill out this contact form giving us an overview of your particular case.