To apply for an EB-2 National Interest Waiver (NIW) petition, an applicant must first qualify either as an “Advanced Degree Professional” who holds an academic or professional degree above the baccalaureate level, or as an “Alien of Exceptional Ability” who holds a degree of expertise significantly above that ordinarily encountered in the alien’s profession.
Physician National Interest Waiver (NIW)
Aliens of exceptional ability and aliens holding advanced degrees in professional fields may apply for permanent residency through the second-preference employment category (EB-2). While a labor certification is typically required for this preference category, the requirement is waived if an applicant can demonstrate that granting the petition is in the "national interest."
A physician may obtain such a National Interest Waiver (NIW) if they intend to practice full-time for a period of five (5) years 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 Veteran Affairs (VA).
NIW processing is available for physicians practicing in primary care and specialty care. Primary care medicine, for example, is defined as family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.
Applicants must provide the U.S. Citizenship and Immigration Services (USCIS) with the following documentation when submitting the I-140 NIW petition:
- An employment contract covering the requisite five (5) years of clinical service in an HHS-designated shortage area or in a VA facility. The employment contract must be dated within six (6) months of the filing of the I-140 petition;
- A letter from a federal agency or state department of health attesting to the physician’s qualifications and that the physician’s work will be "in the public interest." The letter must also be dated within six (6) months of the filing of the I-140 petition;
- Evidence that the physician has a required license for the state of intended employment.
Upon completion of the five-year service requirement, the applicant must submit evidence to USCIS demonstrating that they have completed the requirement, and are therefore able to adjust status to that of permanent resident.
Does time spent by the physician in J-1 status count toward the five-year service requirement?
No. Any time spent by the physician in J-1 non-immigrant visa status does not count toward the five-year NIW service requirement.
Does time spent fulfilling a J-1 waiver service requirement count towards the NIW service requirement?
For physicians who have received a J-1 visa waiver, USCIS will begin calculating the NIW service requirement on the date the physician changed status from J-1 to H-1B.
Can a physician relocate to another underserved area during the five-year service period?
Yes. Applicants who decide to change job locations and/or employers after obtaining the NIW approval will need to submit a new I-140 Petition and provide evidence that their proposed work at a new site and/or with a new employer continues to be "in the public interest."
When can the physician apply to adjust status?
Physicians who received a J-1 waiver, and who currently hold H-1B status, may apply for adjustment of status immediately upon filing the I-140 NIW application, provided that they complete the J-1 Waiver service requirements on a valid H-1B visa assuming the priority date is current. Physicians who have never held J-1 status are eligible to apply for adjustment of status immediately upon filing the I-140 NIW application assuming the priority date is current.