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Foreign physicians may obtain immigrant visas
(“green cards”) through the second preference category of employment-based
immigration (EB-2) by filing a labor certification. Available through the
EB-2 category is the Physician National Interest
Waiver (“NIW”) which relieves petitioners from the labor
certification process. NIW green cards are available only to physicians who
agree to work full time in a designated health professional shortage area or in
VA hospital and where a federal agency or state department of public health has
determined that the physician’s work is in the public interest. Physicians who entered
the U.S. before Jan 9, 1978 and have been practicing since that time may obtain
a green card as a Special Immigrant Physician.
I. Second
Preference Category (EB-2)
To obtain an immigrant visa in the EB-2
category, a Form I-140 (Petition for Alien Worker) must be filed with the USCIS
Regional Service Center that serves the area of intended employment. Before the
Form I-140 can be filed with the USCIS in the EB-2 category, the alien must
first obtain a labor certification from
the U.S. Department of Labor. Please see the section entitled Labor Certification for detailed information
on the process and procedure.
In addition to the general document requirements for labor
certifications, physicians and surgeons are also required to submit one of the
following:
1.
Evidence that the foreign physician has passed Parts I and II
of the National Board of Medical Examiners Examination; or
2.
Evidence that the foreign has passed the Visa Qualifying
Examination (VQE) offered by the National Board of Medical Examiners and is
competent in oral and written English; or
3.
Evidence that the foreign on January 9, 1977: (a) was a doctor
of medicine fully and permanently licensed to practice medicine in a State, (b)
held a valid specialty certificate issued by a constituent board of the
American Board of Medical Specialties, and (c) was practicing medicine in a
State; or
4.
Evidence that the individual is a graduate of a school of
medicine accredited by a body or bodies approved for that purpose by the United
States Commissioner of Education.
II. Physician
National Interest Waiver
The Physician National Interest
Waiver (“NIW”) is available only to practicing and licensed physicians who agree to work full time in a
designated health professional shortage area or in a VA hospital and where a
federal agency or state department of public health has determined that the
physician’s work is in the public interest. Before receiving permanent
residence, the physician must work as a physician for an aggregate of 5 years
in the shortage area (or, 3 years in the shortage area if the NIW was filed
before November 1, 1998). The NIW for physicians in underserved areas is
available only to:
- A petitioner requesting a national interest waiver on
behalf of a qualified foreign physician, or
- A foreign physician self-petitioning for second
preference classification, based on medical service in a Health and Human Services
Department (HHS)-designated underserved area or a Department of Veterans
Affairs (VA) facility, still must meet all eligibility requirements for this
immigrant classification in order to be eligible for the national interest waiver.
Petition Document Requirements
The petitioner or self-petitioner must submit the
following evidence with Form I-140 (Petition for Alien Worker) to support the
request for a national interest waiver:
- For foreign physicians planning to divide the practice
of full-time clinical medicine between more than one underserved area, the
following evidence must be submitted for each area of intended practice:
o
If the foreign physician will be an employee; a
full-time employment contract (issued and dated within 6 months prior to the
date the petition is filed) for the required period of clinical medical
practice, or an employment commitment letter from a VA facility.
o
If the foreign physician will establish his or her own
practice, the physician’s 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 actually take to establish the practice.
- Evidence that the foreign physician will provide
full-time clinical medical service:
o
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
o
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 Federal agency or the department of
public health (or equivalent) of a State (including territories of the United
States and the District of Columbia) attesting that the foreign physician’s
work is or will be in the public interest
o
An attestation from a Federal agency must reflect the
agency’s knowledge of the foreign physician’s qualifications and the agency’s
background in making determinations on matters involving medical affairs so as
to substantiate the finding that the alien’s work is or will be in the public
interest.
o
An attestation from the public health department of a
State, United States territory, or the District of Columbia must reflect that
the agency has jurisdiction over the place where the foreign physician intends
to practice clinical medicine. If the foreign physician intends to practice
clinical medicine in more than one underserved area, attestations from each
intended area of practice must be included. Attestations from the public health
department of a State, United States territory, or the District of Columbia
that does not have jurisdiction over the place in which the foreign physician
intends to practice clinical medicine will not be accepted.
Evidence that the physician has satisfied
section 212(a)(5)(B) of the Act.
If applicable, evidence of the Service-issued
waivers of the requirements if the foreign physician has been a J-1
nonimmigrant receiving medical training within the United States. (See section
entitled J-1 nonimmigrant for detailed
information regarding waivers of the two year home residence requirement.)
Medical Service Requirement
A foreign physician may not receive lawful
permanent resident status until such time as he/she has worked full-time as a
physician for an aggregate of 5 years in the shortage area; or, 3 years in the
shortage are if the doctor petitioned for the NIW before November 1, 1998. A
recent court decision has 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. There is no longer a set time limitation to complete the required
medical service; however, an NIW physician must submit interim evidence of
compliance with the medical service requirement.
Concurrent filing
An NIW Physician is allowed to file Form I-140
and Form I-485 (Adjustment of Status)
concurrently with the USCIS, if an immigrant visa is immediately available, prior to the date by which the physician has
completed the 3 or 5 year service requirement. However, USCIS will not grant
final approval of the I-485 application for adjustment of status (nor will a
visa be issued) until the physician has met the service requirement.
During the pendency of the I-485 application for
adjustment of status, NIW Physicians are eligible for employment authorization.
In fact, they must request employment authorization in order to provide the
required medical service, unless they are already authorized to perform such
services in lawful nonimmigrant status. To ensure that the physician intends to
pursue and complete the required medical service, USCIS may request evidence of
meaningful progress toward completing the service obligation. If the USCIS
determines that the physician is using the pending I-485 application for
adjustment of status solely as a means to obtain employment authorization to be
used in areas or occupations other than the service in the shortage area, the
application for employment authorization will be denied.
When filing prior to the service requirement
being fulfilled, applicants will not be scheduled for fingerprinting until the
submission of evidence that the service requirement has been satisfied.
Additionally, the Form I-693 (sealed medical examination results) required for
Form I-485 should be submitted with evidence that the service requirement has
been satisfied.
Final compliance requirement
When the medical service requirement is satisfied,
physicians must provide evidence of final compliance with the 3 or 5 years
service requirement no later than 120 days after the completion of the service
requirement. Proof of employment includes:
- Employment documentation such as individual federal
income tax returns and W-2 forms as proof of the amount of medical service the
physician has completed; and
- A contract, an employer’s statement of understanding,
or a commitment to self-employment as proof of a commitment to complete the
medical
NIW Physicians should also
submit the Form I-693 (sealed medical examination results) at this time.
Approval/Interview
Some physicians, at the USCIS
discretion, will be interviewed before issuing a final decision on the
application for adjustment of status. Properly documented cases should be
approved without requiring an interview.
III. Special
Immigrant Status
Special immigrant status is available, by means of a
"grandfather clause", to certain foreign physicians who have
practiced for a long period of time in the United States. No labor
certification is required. In order to qualify for permanent residence as
special immigrant, the foreign physician must:
- Be
fully and permanently licensed to practice medicine in a State in the U.S.
on or before January 9, 1978, and was practicing in a State on that date;
- Have
entered the U.S. as an H or J nonimmigrant prior to January 9, 1978; and
- Have
continuously practiced medicine since their date of entry.
Petition Document Requirements
Petitions are filed on Form I-360, Petition for
Amerasian, Widow(er) or Special Immigrant with the appropriate USCIS Regional
Service Center along with the following supporting documents:
- Letters from the person's employers, detailing his/her
employment since January 8, 1978, including the current employment; and
- Copies of relevant documents that demonstrate that the
person filed for meets all the above criteria.
The information contained in this web page is intended strictly to be used for information purposes and to educate the public in a general manner. The information contained in this page should not be considered legal advice, legal consultation, expressed or implied representation or a formal or an informal retention of this office. To create a formal attorney-client relationship a retainer must be signed and a fee must be paid to this office. Our response to any of your questions, comments, concerns etc. does not establish an attorney-client relationship. By responding to your questions we do not consider ourselves your attorneys. The response to your questions is strictly informational in nature and should not be considered or used as legal advice in any manner. The information contained on this site is general information on immigration laws and issues. The general information that is included in this web page will not cover the various exceptions and loopholes that are prevalent in the Immigration laws. We hope that our web page will educate you and hopefully enhance your understanding of Immigration laws.
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