National Interest Waiver (NIW) for Physicians
Individuals who possess an advanced degree (Master’s level or above) and/or who can demonstrate exceptional ability in their field may be eligible to apply for a “National Interest Waiver”. Two kinds of National Interest Waiver petitions are available:
- The standard NIW petition; and
- The physician NIW.
In both cases, the I-140 petition is filed directly with the immigration service, without the need for a Department of Labor certification.
In order to qualify for a standard National Interest Waiver, an individual must:
- Hold an advanced degree in their field (Master’s degree or above) OR be able to demonstrate exceptional ability in their field; and
- Satisfy all three of the following criteria:
- The individual’s work must be of “substantial intrinsic merit.” This has been interpreted broadly in recent years, but the following eight factors serve as a general guideline:
- Improving the U.S. economy;
- Improving wages and working conditions of U.S. workers;
Improving education and training programs for U.S. children and underqualified workers;
- Improving healthcare;
- Providing more affordable housing for young and/or older, poorer U.S. residents;
- Improving the environment of the United States and making more productive use of natural resources;
- Improving international cultural understanding; and/or
- A request from an interested government agency.
- The benefit of the individual’s work must be national in scope, not serve only a localized geographical area. Professionals doing important work with a local impact (such as social workers and teachers) no longer qualify. There are, however, special rules for physicians working in a VA hospital or medically underserved area.
- Waiving the labor certification process must be “in the national interest”. This is a particularly vague and subjective standard. The USCIS is not consistent in how they evaluate this standard, but it is usually satisfied by showing that the work of the individual is of such a high caliber and importance that a labor certification would not be logical. This type of petition does not require employer sponsorship.
National Interest Waiver petitions for physicians are an option for primary care physicians and specialists who commit to working five (5) years in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), Mental Health Professional Area (MPHSA for Psychiatrists only), Physicians Scarcity Area (PSA), or at a Veteran Affairs facility. Dentists, chiropractors, podiatrists, and optometrists are not eligible for this category.
The NIW physician petition must include a letter of support from a federal agency or state department of health stating that the physician’s employment is in the public interest. Each federal agency and state department of health has different criteria that must be met before a letter of support will be issued.
The I-485, Adjustment of Status applications for the physician and his or her family may be filed concurrently with the I-140 NIW petition if visa numbers are available, but will not be adjudicated for final approval until the five years of work in the designated area are completed. Applications for employment and travel documents may also be submitted with the I-485. Applications to renew the EAD must include evidence that the physician is completing the five-year service requirement.
NIW physicians may transfer to another employer located in an underserved area during their five year commitment, but a new I-140 petition must be filed. The I-140 AC21 portability regulations, which normally allow applicants to switch employers without filing a new I-140, do not apply to this category. However, the previously accrued experience will count towards the five-year requirement. The USCIS has removed the six-year time limit for completing service in the designated shortage area, but reserves the right to deny permanent residence if the physician appears to be using the EAD benefit of the pending adjustment of status application for employment in other areas or occupations.