A National Interest Waiver (NIW) allows advanced degree professionals or aliens of exceptional ability to forego the lengthy labor certification process and employer sponsorship normally required for the EB-2 preference category. A Physician NIW is a variation of the NIW available to certain medical professionals. Under a Physician NIW, a qualifying alien physician commits to working for five years in clinical practice in an underserved area or in a Veterans Affairs (VA) facility.
The Physician NIW is usually used by primary care physicians (such as general practitioners, family medicine doctors, general internists, pediatricians, obstetricians/gynecologists, and psychiatrists), but specialty physicians are also included.
The U.S. Department of Health and Human Services (HHS) keeps an updated list of underserved areas eligible for an alien practitioner under this subtype of NIW. These include:
These designations may change over time, so it is important that the area of employment was a designated underserved area at the time the alien began NIW employment. If an alien began working in a location while it was a designated underserved area and that location later loses such designation, the alien can continue to work there and accrue time towards the five-year minimum as long as his or her other general NIW requirements are satisfied.Specific Requirements
A letter from a federal or state department of health is required for a Physician NIW petition. This letter, known as an “attestation,” is used to demonstrate that the alien’s work will be in the public interest for the given scarcity area. Attestation letters and employment contracts (the latter if necessary) must be obtained within six months of filing the NIW petition.
If an alien is working for an already established medical facility, he or she must obtain an employment contract showing commitment for the minimum five-year time period. If working at a VA facility, a commitment letter is similarly required.
Usually, alien petitioners work in underserved areas with an already established medical facility or at a VA facility, but it is possible to take advantage of the Physician NIW by opening a private practice as well. In this case, it is necessary to submit a sworn statement committing to the qualifying clinical practice for the required amount of time and detailing the steps taken and/or planned for opening the practice.Status and Exceptions
Under a Physician NIW, aliens are not eligible to adjust statusto permanent resident until they have completed the required five years of service in an underserved area. U.S. Citizenship and Immigration Services (USCIS) allows petitioners to count the time they’ve worked in a designated underserved area or VA facility before filing their NIW petition towards the five-year minimum in most cases (the main exception being time spent in J status).
If visa numbers are available to an alien at the time he or she files an NIW petition, he or she may also file a Form I-485 and take advantage of the availability of work authorization during the pending stage. Aliens who are not able to file an I-485 at the time of filing an NIW will need to maintain other work authorization in order to stay in the U.S. and work towards the required five years of clinical service. In other words, this subtype of NIW does not confer special work authorization on the physician.
Additionally, approval of a Physician NIW and completion of five years of committed clinical work do not negate other immigrant visa regulations. Most importantly, note that if an alien completes five years of clinical service in a scarcity area before visa numbers become available for the relevant chargeability area, that alien must wait to adjust status. A Physician NIW does not confer special priority for visas: aliens must complete the five years of qualifying employment and have their priority date be current before adjusting status.
Previously, an alien filing a Physician NIW petition had to complete the five years of clinical service within six years. However, since 2007, there has been no time limit after filing the NIW petition in which the alien must complete the qualifying work. The alien is required to provide reports within 120 days of the second and fifth anniversaries of his or her NIW approval date, but these are to ensure that the alien continues to deserve the NIW petition and work authorization card (if applicable) and have nothing to do with a time limit to complete service. The content of such reports includes employment documentation, employment contracts, explanations (if necessary) of any breaks in qualifying employment, and proof of other valid status for any other non-qualifying work that was performed.
The NIW process is complex and, at times, a bit convoluted. We recommend that you seek the assistance of experienced immigration attorneys. Over the past two decades, we have successfully represented thousands of clients in their NIW cases. If you would like to contact us, please call us at (713) 771-8433 or visit us at one of our seven locations. You can also send us an e-mail at firstname.lastname@example.org. Our superior attorneys will ensure that you receive only the highest quality of service.
Read the USCIS ruling (Matter of Dhanasar) governing NIW here. And for more detailed information about the National Interest Waiver, including minimum requirements and USCIS policies, please click on the relevant links on this page: