National Interest Waiver for Physicians

The second employment-based preference ordinarily requires a job offer from a United States employer together with an approved labor certification. Both requirements can be set aside where a national interest waiver is granted, an adjudication that is a discretionary one. Physicians, however, have a special exception:  physicians who agree to practice for a period of years in a federally designated shortage area, or at a Department of Veterans Affairs facility, occupy a narrow exception: the statute directs that the waiver be granted, so a petition meeting every condition Congress laid down must be approved rather than merely weighed. Set out below are those conditions, the service that has to be performed, the point at which papers may be filed, and what has to be proved as the service is completed. 8 U.S.C. § 1153(b)(2)(B)(ii); 8 C.F.R. § 204.12.

The conditions that must all be met. The waiver reaches doctors of medicine and doctors of osteopathy. Where a second preference petition (EB2) has been filed and each of the conditions below is satisfied, the waiver must be granted, and with it the requirements of a job offer and a labor certification fall away. 8 U.S.C. § 1153(b)(2)(B)(ii); 8 C.F.R. § 204.12(a).

  1. You agree to work full time, meaning forty hours per week, in clinical practice for an aggregate of five years, not counting time served in J-1 status.
  2. That service is either in a geographic area designated by the Secretary of Health and Human Services as a Medically Underserved Area, a Primary Medical Health Professional Shortage Area, or a Mental Health Professional Shortage Area, in a medical specialty within the scope of that designation, or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs.
  3. A federal agency, or the public health department of a state, a United States territory, or the District of Columbia, has already determined that your work in that area or facility is in the public interest.

The waiver excuses the labor certification, not the service. No immigrant visa may be issued to you, and no adjustment of status may be approved, until the five years of full-time clinical practice have actually been completed. 8 U.S.C. § 1153(b)(2)(B)(ii)(II). Those five years must fall within a six-year window, which begins when the petition is approved if you already hold work authorization, or when the employment authorization document is issued if you needed one before you could begin working. 8 C.F.R. § 204.12(b).

Filing does not have to wait for the service to end. Both the petition and the adjustment of status application may be filed before the required period is finished. 8 U.S.C. § 1153(b)(2)(B)(ii)(III); 8 C.F.R. § 245.18(a). If you were in lawful nonimmigrant status when you filed the adjustment application, you are not required to maintain a nonimmigrant status while it is pending, and the expiry of that status does not make you unlawfully present, so long as you continue practicing as the rules require. 8 C.F.R. § 245.18(d).

What the petition must contain, and what follows later. If you will be an employee, the petition needs a full-time employment contract for the required period of clinical practice, or an employment commitment letter from a VA facility, issued and dated within the six months before the petition is filed; if you will establish your own practice, it needs your sworn commitment to full-time clinical practice for the required period, describing the steps you have taken or will take to set the practice up. The petition also needs evidence that the service will be in a designated shortage area, in a specialty within the scope of that designation, or at a VA facility, together with the public interest determination, and a physician who will divide the practice between more than one underserved area must provide this for each area. 8 C.F.R. § 204.12(c). Evidence is required as the service proceeds as well: within one hundred twenty days after the second anniversary of the approval of the petition, documentation proving at least twelve months of qualifying employment must be filed, with final evidence due once the full period has been served. 8 C.F.R. § 245.18(g).

The ordinary waiver remains an option. A physician who does not wish to commit to service in an underserved area or a VA facility can still seek the general national interest waiver, which is discretionary and turns on the merits of the individual case rather than on a fixed set of conditions. 8 U.S.C. § 1153(b)(2)(B)(i).