National Interest Waiver

National Interest Waiver for Doctors

In order to apply for lawful permanent residence, all immigrant applicants are required to obtain approval from the U.S. Citizenship and Immigration Services (USCIS) for immigrant status classification. An individual may be eligible for the employment based second preference classification based on a waiver of the job offer and labor certification requirements based on a determination that his or her work is in the “national interest.” Because a National Interest Waiver does not require a sponsoring employer, many doctors find this category to be an attractive option.

As appealing as this classification may be, establishing eligibility for a National Interest Waiver (NIW) is not easy. The applicant must submit extensive documentation to establish whether his or her work will: improve the health of Americans or advance medical or scientific research; improve the U.S. economy; improve wages and working conditions for workers; improve educational and training programs; provide more affordable housing; or improved the environment (i.e., more productive use of natural resources).

Physicians Serving in a Medically Underserved Population or for a VA Facility

The immigration regulations provide another basis on which a physician may apply for an NIW (National Interest Waiver). A physician is eligible for this waiver if:

1. The physician agrees to work full-time in a clinical practice for 5 years serving an area designated as a Medically Underserved Area, a Primary Medical Health Professional Shortage Area, or a Mental Health Professional Shortage Area; or serving a VA facility; and
2. A federal agency or State department of public health has previously determined that the physician’s work in the area or facility is in the public interest.

The physician must also provide the following documentation:

1. A letter issued within 6 months prior to the date on which the petition is filed from a federal agency or from the Sate department of public health attesting that the physician’s work is or will be in the public interest.
2. An attestation from a federal agency substantiating the finding that the alien’s work will be in the public interest must state the agency’s knowledge of the physician’s qualifications as well as the agency’s background in making determinations on matters involving medical affairs.
3. Attestation from the State department of public health must reflect that the agency has jurisdiction over the place where the physician intends to practice clinical medicine.

Why Should a Physician Apply for a National Interest Waiver?

1. Doctors are able to self-petition for an NIW (National Interest Waiver), meaning that they are not required to be sponsored by a specific employer, and the doctor need not be a beneficiary of a labor certification. Although the labor certification application process has been streamlined, avoiding the process of having an employer perform recruitment for a position will save time, costs and additional obligations for the employer.
2. One particular boon that is afforded to doctors is the ability to apply for the National Interest Waiver prior to the conclusion of the service agreement. The doctor should note that he or she cannot actually obtain lawful permanent residence until the service requirement is fulfilled. By immediately filing for the adjustment of status application, the doctor is also able to apply for employment authorization and advance parole.
3. When the doctor submits an adjustment of status application, his or her spouse and children may also apply for adjustment of status, and consequently for work authorization and advance parole.

Before applying for lawful permanent residence, a doctor who is in H-1B status after obtaining a J-1 waiver based on a 3 year service commitment must ensure compliance with the service obligation. In these instances, the doctor should fulfill the H-1B service obligation prior to seeking new employment.

When should a doctor apply for a National Interest Waiver?

Doctors should consider applying for an NIW as soon as possible. Because of retrogression in the visa numbers for the second preference employment classification for Indian and Chinese nationals, doctors wishing to pursue lawful permanent residence should try to submit their I-140 Immigrant Petitions as early as possible.

To learn more about obtaining a National Interest Waiver, contact our office to discuss your options with an Immigration Attorney.

Disclaimer: This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel with an experienced Immigration Attorney regarding case specific situations. The above information should not be construed as legal advice. Please note that laws change frequently.