H-1C DOL Regulation for Nurses

INS Health Care Workers (Therapists) Regulation of 01/16/2001

Physician NIW Regulation 09/06/00

Summary of Physician Regulation

• Are the New Statutory Provisions Available to Any Physician?
  Section 203(b)(2)(B)(ii) of the Act states that any physician may petition for a national interest waiver. While the statutory language says ``any physician,'' the Service notes that HHS currently limits physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry. Unless HHS establishes shortage areas for other fields of medicine, only these fields of medicine are covered by this rule.
  The Service anticipates that the majority of physicians petitioning under the new provisions will be those that are already admitted to the United States in a valid nonimmigrant status. The Service expects that many J-1 nonimmigrant medical doctors in training, as well as physicians practicing medicine in H-1B nonimmigrant status, will apply for this waiver since many J-1 and H-1B physicians practice or are in training to practice family or general medicine. It is unlikely that
  many physicians living abroad will have completed the necessary licensing and certification procedures in order to qualify for this particular EB-2 immigrant visa. Any physician living abroad who has met the requirements necessary to practice in the United States, however, may seek a national interest waiver of the job offer requirement, if the physician can meet the requirements of section 203(b)(2)(B)(ii).
• 
  How Much Time Will the Service Give an Alien Physician To Complete His
  or Her Aggregate Service?
  The interim rule establishes that physicians petitioning for EB-2 immigrant status with a request for a national interest waiver must fulfill the aggregate 5 years of full-time service within a 6-year period following approval of the petition and waiver (within 4 years of approval of the petition and waiver for cases filed before November 1, 1998). The Service is of the opinion that granting physicians one additional year to accumulate the needed aggregate time is more than reasonable.
  The Service realizes that situations will arise that cause some physicians to have interruptions in the respective medical practice, such as job loss through no fault of their own and the ensuing search for new employment in an underserved area, pregnancy, or providing care to ill parents, children, or other family members. Nevertheless, the Service does not consider it appropriate to allow physicians to remain in the United States indefinitely without satisfying the service requirement. The Service will, therefore, deny the application for adjustment of status and revoke approval of the visa petition and
  national interest waiver in any case in which the alien physician fails to submit, within the time fixed by the interim rule, the required documentary evidence establishing the physician's compliance with the service requirement.
• 
  Does Time Spent by the Alien Physician in J-1 Status Count Toward the
  Mandatory Service Time Period?
  No. The Act plainly states that any time spent by the alien physician in J-1 nonimmigrant status does not count toward either the 5 or 3-year medical service requirement.
• 
  What Evidence Will Physicians Need To Submit?
  This interim rule establishes what documentary evidence is necessary for physicians desiring to take advantage of the statutory amendment. However, most of this documentation is similar to what a physician would be required to submit if he or she were not applying for the national interest waiver. In a national interest waiver case, however, the evidence must establish that the physician will work in an HHS designated shortage area or a VA facility and that the petition is
  supported by the needed attestations from either HHS, VA, another Federal agency that has knowledge of the physician's qualifications, or a State public health department.
• 
  Can Any Federal Agency Issue a Needed Attestation?
  This interim rule provides that, in order to provide an attestation, the Federal agency must possess knowledge of the alien physician's skills and have experience in making similar type attestations. In addition to HHS and the VA, this might include, for example, attestations from the medical director of a United States military hospital, The Peace Corps, or the Department of State.
• 
  Are Similar Limits Placed on State Departments of Health?
  Yes, the interim rule establishes that the needed attestation must come from a State department of public health (or the equivalent), including United States territories and the District of Columbia. While the Act, as amended, states that ``a department of public health in any State'' may provide the needed attestation, the Service has concerns
  over how a completely decentralized system of providing attestations can effectively address the problem of physician shortages. In particular, the Service sees problems with an attestation procedure operating without a central authority in each State having oversight of the process and oversight of where the physicians are actually practicing. Therefore, the interim rule places the authority with each State department of public health to make the necessary attestations.
  Nothing in this interim rule prevents local departments of public health from urging the central State health department to issue attestations concerning the merits of a particular alien physician and that physician's desire to practice medicine in an HHS-designated underserved area. This policy of placing the authority to render a needed attestation with the State public health department is consistent with Service regulations that address waivers of the 2-year return home requirement for J-1 nonimmigrant physicians. See 8 CFR 212.7(c)(9)(i)(D).
  The Service is also restricting such attestations to physicians intending to practice clinical medicine within the agency's territorial jurisdiction. For example, the Service will not accept an attestation from the State of Maryland Public Health Department regarding a physician proposing to practice medicine exclusively in Pennsylvania.
• 
  Is There Any Special Provision for Long-Pending Petitions?
  As noted, most alien physicians must work in the area designated by the Secretary of HHS as having a shortage of health care professionals (or at the VA facility) for at least 5 years before the alien physician may obtain permanent residence status. A special rule applies if the alien physician is the beneficiary of an immigrant visa petition filed before November 1, 1998. In that case, all the other requirements apply but the alien physician may obtain permanent residence after only 3
  years of qualifying service. The Service has established an administrative method to implement the noted effective dates by
  providing guidance at 8 CFR 204.12(d) for each group of possible petitioners and beneficiaries.
• 
  Is This Waiver Available to an Alien Physician Who Is the Beneficiary
  of an Immigrant Visa Petition That the Service Denied Prior to the
  Amendment's Enactment Date of November 12, 1999?
  If a Service decision that denied an immigrant visa petition became administratively final before November 12, 1999, the alien physician may obtain the benefit contained in the interim rule only through the filing of a new immigrant visa petition with the required evidence. The Service will not entertain motions to reopen or reconsider denied cases because the provisions of section 203(b)(2)(B)(ii) of the Act were not in effect when those particular cases were denied. Under established precedent, in order for an alien to receive a priority date, his or her petition must be fully approvable under the law that is in effect at the time of filing. See Matter of Atembe. 19 I&N Dec. 427 (BIA 1986). The denial of a motion to reopen or reconsider, however, will be without prejudice to the filing of a new immigrant visa petition.
  This restriction applies only if the denial became final before November 12, 1999. That is, if the petitioner had filed a timely appeal of the Administrative Appeals Office (AAO) which was still pending as of that date, or, if the AAO affirmed the denial but the petitioner had already sought judicial review by November 12, 1999, it will not be necessary to file a new petition. In making provision for cases filed before November 1, 1998, however, section 203(b)(2)(B)(ii)(IV) of the
  Act makes it clear that Congress intended to apply this new provision to all petitions that were actually pending on November 12, 1999. If a case was pending before the AAO or a Federal court on November 12, 1999, the Service will support remand of the case to the proper Service Center for a new decision in light of the new amendment. If the case is
  still pending before a Service Center, the visa petitioner may supplement the record with evidence that satisfies the requirements of section 203(b)(2)(B)(ii) of the Act.
• 
  At What Point in the Process May an Alien Physician Apply for
  Adjustment of Status?
  Section 203(b)(2)(B)(ii)(III) of the Act allows any physician in receipt of an approved immigrant petition with an accompanying national interest waiver request based on full-time service in a shortage area to immediately apply for adjustment of status to that of lawful permanent resident. With a non-frivolous adjustment of status application pending, the alien physician is eligible to apply for an Employment Authorization Document (EAD) pursuant to 8 CFR 274a.12(c)(9). (Physicians with approved immigrant petitions and national interest waivers based on service in a shortage area should
  file the application for adjustment of status and the application for an EAD simultaneously.) This relieves the physician of having to maintain any type of valid nonimmigrant status prior to the final adjudication of the adjustment of status application. That is to say, the alien physician, under section 245(c)(7) of the Act, must have been in a lawful nonimmigrant status when the alien physician files the adjustment application, but need not remain in lawful nonimmigrant status during the entire period of medical service.
• 
  At What Point Does the Service Begin Counting the Physician's 5 or 3-
  year Medical Practice Requirement?
  In general, the alien's 5-year or 3-year period of medical service begins when the alien starts working for the petitioner in a medically underserved area. If the physician, other than those with J-1 nonimmigrant visas, already has authorization to accept employment at the facility, the 6-year or 4-year period during which the physician must provide the service begins on the date that the Service approves the Form I-140 petition and national interest waiver. If the physician must obtain employment authorization before the physician can begin working, the 6-year or 4-year period begins on the date the Service issues an EAD. Since section 203(b)(2)(B)(ii)(II) of the Act specifically prohibits any time served in J-1 nonimmigrant status as counting towards the 5-year service requirement, J-1 physicians with approved Form I-140 petitions will have their medical service under this rule begin on the date the physician starts his or her employment with the petitioner, and after the Service issues an EAD.
  The interim rule does include a special provision for former J-1 nonimmigrant physicians who have obtained foreign residence requirement waivers. Section 214(l) of the Act, as previously amended by section 220 of Public Law 103-416, provides a special waiver of the foreign residence requirement for alien physicians who are willing to work at VA facilities or in HHS-designated underserved areas. Under section 214(l), 3 years' service as an H-1B nonimmigrant is sufficient. The
  interim rule makes clear that for aliens who already have a waiver under section 214(l) of the Act, the Service will calculate the 5-year or 3-year period of services of the national interest waiver under section 203(b)(2)(B)(ii) of the Act beginning on the date the alien changed from J-1 to H-1B status. That is, an alien who is subject to the foreign residence requirement will not be required to first serve for 3 years to obtain that waiver and then to serve an additional 5 years to obtain adjustment of status based on the national interest waiver.
• 
  Will the Service Hold Open an Adjustment of Status Application for the
  Aggregate 5 or 3-year Period?
  Section 203(b)(2)(B)(ii)(II) of the Act prohibits the Attorney General from making a final determination on any adjustment of status application submitted by a physician practicing medicine full-time in a medically underserved area until the physician has had the opportunity to prove that he or she has worked full-time as a physician for an aggregate of 5 or 3 years, depending on filing date. Physicians should note that this period of service does not count any time the physician
  has spent in a J-1 nonimmigrant status.
  The interim rule establishes two points where the alien physician must submit evidence noting his or her practice of medicine in an underserved area. First, physicians with the 5-year service requirement must make an initial submission of evidence no later than 120 days after the second anniversary of the approval of the immigrant petition, From I-140. The physician must document at least 12 months of qualifying employment during the first 2-year period. If a physician
  has not worked at least one year of this 2-year period, it will be mathematically impossible for the physician to reach his or her five-year mark within six years. At the end of the physician's four-year balance, evidence must be submitted that documents the employment of the final years of the 5-year aggregate service requirement. Alien physicians with the 3-year service requirement will only be required to submit evidence once, at the conclusion of the 3-years aggregate service.
  As evidence, the Service will request individual tax return documents, and documentation from the employer attesting that the physician has in fact performed the required full-time clinical medical service. If a physician obtained the waiver based on his or her plan to establish his or her own practice, the physician must submit documentation proving he or she did so, including proof of the incorporation of the medical practice (if incorporated), business licenses, and business tax returns.
• 
  Are the Adjustment of Status Filing Requirements Different for These
  Alien Physicians?
  Yes. Since the Attorney General is prohibited from making the final adjudication on a physician's adjustment of status application, until the physician has submitted evidence documenting the medical service in a shortage area or areas, the interim rule establishes two modifications to the adjustment filing procedure. First, physicians will not be scheduled for fingerprinting at an Application Support Center until the physician submits evidence documenting the completion
  of the required years of service. Second, physicians will not submit the required medical examination report at the time of filing for adjustment. The medical report will instead be submitted with the documentary evidence noting the physician's fulfillment of the 5 or 3-year medical service requirement.
• 
  Can an Alien Physician Relocate to Another Underserved Area During the
  5 or 3-year Service Period?
  Yes, physicians will not be prohibited from relocating to other underserved areas. However, the interim rule establishes that any physician desiring to relocate must submit a new petition that documents the reasons for the proposed relocation. The interim rule, at 8 CFR 204.12(f), establishes the necessary procedures for the alien physician and the new petitioner to follow.
  The Service will take into account the amount of time the physician is engaged in full-time practices in calculating the aggregate medical service time in the underserved areas. For example, if the physician completed 3 years of service before approval of a second petition, then only 2 more years of service would be needed to qualify for adjustment of status. However, petitioners and beneficiaries should note that the authorization to begin a medical practice in a new area does not
  constitute the beginning of a new 6-year period. Regardless of the number of moves, physicians are granted just one 6-year period to complete the required service time.
• 
  Will the Service Require a Physician To Relocate to Another Underserved
  Area If the Initial Area Loses Designation as an Underserved Area?
  The interim rule does not require that a physician relocate to another underserved area should the area the physician is practicing full-time clinical medicine lose its designation as an underserved area. The purpose of such a designation is to foster a greater physician presence in underserved areas. The Service believed one of the desired results of the statutory amendment is for physicians to take up residency in these areas and become integral parts of the community. Once an area is no longer designated as an underserved area, however, the Service can no longer grant national interest waivers for
  physicians to practice in that area (other than for physicians who will work in a VA facility).
• 
  What Action Will the Service Take If the Alien Physician Does Not
  Submit the Required Evidence Needed To Complete the Adjustment Process?
  The interim rule establishes, at section 245.18(i), that the Service will deny the application for adjustment of status and revoke approval of the Form I-140 if a physician fails to file proof of the physician's completion of the service requirement in a timely fashion. Back to Top

HHS Designation of Health Professional Shortage Areas:Lists of Designated Primary Medical Care, Mental Health, and Dental
Health Professional Shortage Areas; Notice

Pages 56027-56076: Pages 56077-56126: Pages 56127-56176: Pages 56177-56186 Back to Top