INS Issues NIW Regulations for Physicians
Posted Sep 16, 2000

Finally, INS has issued the regulations that will facilitate the adjudication of National Interest Waivers for physicians serving in medically underserved areas or at Department of Veterans Affairs facilities. This amendment of Section 203(b)(2) of the INA is authorized by the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95, which allows physicians who are willing to practice full-time in an area designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals or in a facility operated by the Department of Veterans Affairs (VA) to obtain a waiver of the job offer requirement for the Green Card. These regulations will go into effect on October 6, 2000.

While cases filed before November 1, 1998 will only require 3 years of service in the underserved area, National Interest Waivers under the 1999 law will be approved for those physicians who have agreed to work full-time for an aggregate of 5 years in a clinical practice designated by HHS as a Primary Health Professional Shortage Area, Medically Underserved Area, or Mental Health Professional Shortage Area or at a VA facility. Currently, physicians in designated shortage areas are limited to the fields of family or general medicine, pediatrics, general internal medicine, obstetrics, gynecology, and psychiatry. The physician must provide as evidence that s/he will work in an HHS designated shortage area or a VA facility attestations from HHS, VA, a federal agency with knowledge of the physician’s qualifications and experience (such as the medical director of a U.S. military hospital, The Peace Corps, or the Department of State), or a State Public Health Department.

The physician MUST complete her/his 5 years of service within 6 years following the approval of the petition. Any time spent on J-1 nonimmigrant status will not count towards completion of the medical service requirement. Upon approval of the National Interest Waiver, the physician may immediately apply for adjustment of status and an Employment Authorization Document (EAD), which will relieve the physician from maintaining nonimmigrant status until the final adjudication of the adjustment of status application. The physician’s required period of service in the underserved area is counted only from the issuance of the EAD or from the point when the physician changed from J-1 status to H1B status (i.e. whichever occurred earlier).

Approval of the adjustment of status is contingent upon the physician completing her/his medical service. The physician must make an initial submission of evidence no later than 120 days after the second anniversary of the National Interest Waiver approval that documents at least 12 months of qualifying employment since it would be impossible to meet the 6 year deadline if 12 months have not yet been completed by then. At the end of the 5 years of aggregate service, the physician must again submit evidence that s/he has completed the required medical service. Submission of evidence such as individual tax returns and employer documentation of full-time medical service will result in final adjudication. Only then will the physician be scheduled for fingerprinting and be able to submit the required medical examination report.

Interestingly, the physician is not tied to the original underserved area. S/he may relocate to other underserved areas; however, a new petition documenting reasons for the proposed relocation must be submitted. The physician still only has a total of 6 years to complete the required service. If the underserved area in which the physician received approval of the National Interest Waiver loses its designation as an underserved area, the physician will not be required to relocate to another underserved area as the fundamental purpose of the statutory amendment will have been fulfilled by providing vital health care to the needy and allowing these physicians to become an integral element of the community.