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.
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:
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 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
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:
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.)
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.
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.
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:
NIW Physicians should also submit the Form I-693 (sealed medical examination results) at this time.
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.
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:
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: