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A foreign national may qualify for the national interest waiver if they have previously qualified for the EB-2 immigrant visa classification. The national interest waiver is contingent on this qualification, and cannot be pursued unless the foreign national first meets the criteria for the EB-2 immigrant visa classification and decides to pursue this classification over others.
To qualify for the EB-2 immigrant visa classification, the foreign national must meet one of two very specific criteria. They must either be a professional with an advanced degree, or qualify as an individual with exceptional ability.
In this context, advanced degree is defined as any degree higher than a bachelor’s degree (think Master’s degree and above). The USCIS will permit individuals who have only attained a bachelor’s degree but who have at least five years of substantial work experience in the same field as their degree to qualify under this criterion. Typically, the USCIS recognizes five years of relevant work experience to be equivalent to a graduate degree. Foreign nationals who have not attained a bachelor’s degree cannot substitute any amount of work experience to gain this classification from the USCIS.
Foreign nationals can also qualify for the EB-2 immigrant visa classification by demonstrating that they are an individual with exceptional ability, which roughly translated to having greater expertise in their field than the average professional. Since this criterion is highly subjective, the burden of proof is on the foreign national to demonstrate their exceptional ability in their immigrant visa petition to qualify for the EB-2 preference classification. To qualify as an individual with exceptional ability, the foreign national must satisfy and provide evidence for at least three criteria as outlined by the USCIS.
While similar in concept, the standard national interest waiver and the national interest waiver for physicians vary in several notable ways. Specifically, the national interest waiver for physicians differs in that there are additional qualifications that must be met and the national interest waiver outlines certain work conditions to which the foreign national must commit upon successful admission to the United States.
To protect the interests of U.S. workers, applicants for immigrant visas who qualify for EB-2 and EB-3 preference classifications are required to undergo the time-consuming labor certification application process. Foreign nationals seeking EB-1 (individuals with extraordinary ability in their field, outstanding professors and researchers, international executives and managers), EB-4 (individuals who come from a set list of very specific and specialized backgrounds, travel.state.gov should be consulted for the extensive list), or EB-5 (investors who plan to invest in enterprises that will stimulate job creation in the United States) preference classifications are not required to undergo the labor certification applicant process.
What this process effectively entails is that the sponsoring employer for the foreign national must demonstrate that there are no ‘minimally qualified’ U.S. workers who are able, willing, and minimally qualified to assume the role. The Department of Labor’s intention behind this is to protect U.S. workers who are otherwise eligible for the proposed role, even if the foreign national is deemed a ‘better fit’ by the employer.
There are many complex steps to the labor certification application process which require significant time and resources to complete. The benefit of the national interest waiver is that it allows the foreign national to circumvent the labor certification application process entirely, however to qualify for either the standard national interest waiver or the national interest waiver for physicians, the foreign national must be able to prove that it is in the best interest of the United States to grant them an immigrant visa without requiring the labor certification application.
Both the standard national interest waiver and the national interest waiver for physicians aim to accomplish the same thing: exemption from the labor certification. However, the requirements for the national interest waiver if a foreign national is applying as a physician are a little bit different.
The physician national interest waiver was established in the year 2000 by the Nursing Relief Act. Part of the bill amends section 203(b)(2) of the Immigration and Nationality Act, outlining special qualifications that foreign physicians may meet in order to circumvent labor certification and receive the national interest waiver. The eligibility requirements are as follows:
First, the foreign national must commit to working full-time in a specified practice for at least five years.
Second, the foreign national must have a background in and will continue to practice primary care (general medicine), pediatrics, internal medicine, obstetrics/gynecology, psychiatry, or may be a specialist. Originally, the national interest waiver for physicians did not cover specialists, however this has been amended and a specialist may acquire a national interest waiver as long as they willing to commit to work in a Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA). It should be noted that dentists and chiropractors are not eligible for the physician’s national interest waiver.
Third, the foreign national must commit to serving the minimum five years while working in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA) if the foreign national is a psychiatrist, a Medically Underserved Area (MUA), or a Veterans Affairs practice. More data regarding federally designated underserved areas can be found on https://data.hrsa.gov/
Lastly, the foreign national must acquire documentation from a federal agency or state public health department certifying that the physician’s intended work is indeed in the public health interest of the United States.
To qualify for the physician’s national interest waiver, the foreign national must successfully pass the U.S. medical licensing examination and provide documentation that they have done so. The U.S. medical licensing examination is required of all individuals, domestic- or foreign-born, who wish to practice as a medically licensed physician in the United States. The examination is comprised of three steps, all of which must be completed by the foreign national before they can be approved to practice medicine in the United States and move forward with the national interest waiver for physicians. For individuals who attended medical school abroad, pass rates for the 1st, 2nd CK, 2nd CS, and 3rd steps of the examination are 72%, 71%, 78%, and 78%, respectively.
Step 1 of the examination is designed to evaluate whether aspiring U.S. physicians have a firm grasp on the basic scientific concepts behind modern medicine. This step is comprised of a single full day of testing. There are seven hour-long blocks with no more than 280 questions total. Typically, domestic medical school students complete this step after their second year of medical school. The topics covered during this step of the examination process include: aging, anatomy & physiology, behavioral sciences, biochemistry, genetics, microbiology, nutrition, pathology, and pharmacology.
Step 2 of the U.S. medical licensing examination is designed to evaluate whether an aspiring U.S. physician can apply medical concepts in patient care. The second step is comprised of two parts: the Clinical Knowledge assessment and the Clinical Skills assessment. The Clinical Knowledge assessment mirrors the Step 1 examination in structure— it is comprised of eight hour-long blocks that make up a single full day of testing. The topics tested in the Clinical Knowledge assessment include: internal medicine, obstetrics and gynecology, pediatrics, preventative medicine, psychiatry, and surgery. The Clinical Skills assessment if further broken up into three parts: the Integrated Clinical Encounter (ICE) exam, the Communication and Interpersonal Skills (CIS) exam, and the Spoken English Proficiency (SEP) exam. Foreign nationals should note that the Clinical Skills assessment is only offered in five cities: Philadelphia, Chicago, Atlanta, Houston, and Los Angeles.
Step 3 of the U.S. medical licensing examination is designed to evaluate whether an aspiring U.S. physician can apply medical knowledge in an unsupervised setting of medicine (i.e. in an ambulatory environment). This final step occurs over two days of testing, with the first day lasting seven hours and the second lasting nine hours. The topics tested in this step of the examination process include behavioral/emotional disorders, central nervous system, circulatory system, digestive system, ears/eyes/nose/mouth/throat, endocrine system/metabolic disorders, infectious diseases, injuries/wound care/toxins/burns, kidneys/urinary tract, musculoskeletal system, neonatal care, pregnancy/childbirth, skin/subcutaneous tissue, reproductive system, and the respiratory system.
This step is only a requirement for foreign nationals who do not intend to join an existing practice in a federally designated underserved area nor join a Veterans Affairs facility. If the foreign national intends to start their own practice in a federally designated underserved area, then it is in the best interest of the foreign national to begin the process of establishing this practice before submitting their immigrant visa petition and physician’s national interest waiver. This step is technically not a requirement, but it will significantly boost the foreign national’s likelihood of attaining the physician’s national interest waiver, as it provides proof behind the sworn statement that they promise to uphold the requirement to work five or more years in a federally designated underserved area.
The foreign national does not necessarily have to travel to the federally designated underserved area where they plan to establish their practice in order to begin making steps towards opening a practice in that location. If the applicant decides to pursue this additional step, they should be sure document all steps taken and include them in the immigrant visa petition.
As part of the application for a physician’s national interest waiver, the foreign national must acquire a statement from the appropriate authorities that confirms the proposed work of the foreign national, once admitted to the United States, will actually be in the national interest of the country.
Chronologically, this step is not required to be executed before those that follow it, however since it may take a period of time to attain the statement letter, it is in the best interest of the foreign national to do this ahead of collecting other documents for the application process.
If the foreign national is planning on joining a practice in a certain state, then they should contact the respective state’s Department of Health to request the statement. If the foreign national is planning on starting their own practice in a certain state, then they should also contact the respective state’s Department of Health to request the statement.
A list containing the website information for each state’s Department of Health information page regarding the physician’s national interest waiver (where available) can be found below. If the foreign national is planning on working for a Veterans Affairs facility, then they should reach out to their future employer for a statement confirming that their proposed role will be in the national interest of the country.
Before submitting the immigrant visa petition, the foreign national should be very careful in collecting the correct documentation, as missing documentation may result in significant delays or even rejection of the immigrant visa petition and/or the physician’s national interest waiver. The required documentation for the physician’s national interest waiver is listed above and should be included in the application packet along with the rest of the immigrant visa petition.
For foreign nationals who plan to join an existing practice, they must include their complete employment contract in their application packet. The role must be permanent and full-time in nature, and this must be communicated within the employment contract. Furthermore, the employment contract must be dated within six months of when the foreign national plans to submit their immigrant visa petition. If the employment contract was issued over six months prior to when the foreign national submits their immigrant visa petition, the foreign national should contact their employer and request a reissued employment contract.
For foreign nationals who plan to join a Veterans Affairs facility, they must include a commitment letter from Veterans Affairs. Same as before, the letter must be dated within six months of when the foreign national plans to submit their immigrant visa petition. If the commitment letter was issued over six months prior to when the foreign national submits their immigrant visa petition, the foreign national should contact Veterans Affairs and request an updated commitment letter.
For foreign nationals who do not intend to join an existing practice but rather intend to start their own practice in a federally designated underserved area, they must submit a sworn statement affirming that will commit to full-time medical practice for at least five years in a federally designated underserved area. If the foreign national wishes to choose this route, they should also outline any steps they have taken to setting up their future practice. The greater the amount of evidence the foreign national can provide in their application packet, the greater the likelihood they will be accepted for the physician’s national interest waiver.
The foreign national must also provide evidence that they will serve in either a federally designated underserved area or in a Veterans Affairs facility. If the foreign national is joining a Veterans Affairs facility, the commitment letter as described above will be sufficient. If the foreign national is either joining or starting a practice, the burden of proof is on the applicant to communicate that the geographic area in which they will be working qualifies as a federally designated underserved area. More information on which areas qualify as federally designated underserved areas can be found on data.hrsa.gov.
As mentioned above, the foreign national must also include documentation indicating that they have successfully passed all three steps of the U.S. medical licensing examination.
The foreign national must also include a letter from the Department of Veterans Affairs or from the respective state Department of Health affirming that the type of medicine the foreign national intends to practice is or in the future will be in the public interest of the United States. Who to contact to acquire this statement letter depends on the state in which the physician intends to practice, and the respective contact information can be found above.
Lastly, if the foreign national previously received J-1 nonimmigrant status and attended medical school in the United States, they must provide a copy of their USCIS approval notice for their J-1 visa waiver
When the applicant has collected all the required documentation for the physician’s national interest waiver and completed the Form I-140, they may submit the application packet to the USCIS. This is done via mail to the respective addresses below.
If Filing Form I-140 By Itself:
If Filing Form I-140 Concurrently with Form I-485 [Application to Register Permanent Residence or Adjust Status]:
Foreign nationals who are seeking the national interest waiver for physicians may simultaneously apply to adjust status if vis numbers are available and they have already completed the five-year minimum service in a federally designated underserved area or Veterans Affairs facility. Those who submit applications for adjustment of status who have not yet completed the five years of service will not have their applications adjudicated until they have completed the requirement.
During the five-year required service period, the foreign national is permitted to relocate to another federally designated underserved area or Veterans Affairs facility to complete their service requirement. The individual will not be penalized in any way for pursuing or completing relocation during this time period. If the foreign national wishes to relocate to another area, however, they must resubmit the immigrant visa petition and the physician’s national interest waiver along with thorough explanation for why they wish to relocate.
In this resubmission, the foreign national should include their new employment contract, commitment letter, or sworn statement and steps taken to create their new practice. The time spent serving in the previous federally designated underserved area or Veterans Affairs facility will still count towards the five-year requirement. For example, if the foreign national practiced in a previously approved federally designated underserved area for two years, and then wishes to relocate to another federally designated underserved area, then they will only be required to practice in that area for another three years before the requirement is considered complete. Foreign nationals should be mindful, however, that they only have a total of six years to complete the five-year requirement. If the five-year service period is not completed in a period of six years, then the foreign national will not be eligible to adjust status or pursue immigrant visa processing.
If the foreign national begins work in a federally designated underserved area, and after they have begun their service requirement, the area loses its designation, the physician will not be required to join another practice or move their practice to a new federally designated underserved area. For example, if a physician begins work in Roy, New Mexico, and after two years of service, the area is determined to no longer be ‘underserved’ and loses its distinction as such, the physician may remain in Roy and work there for another three years while still fulfilling their service requirement.
Some foreign nationals seeking the physician’s national interest waiver have already attained J-1 nonimmigrant visa status. Applicants should be aware that time spent by the foreign national in the United States under the J-1 visa cannot be applied toward the five-year service requirement for the physician’s national interest waiver.
However, if the foreign national has already spent time completing the service requirement for the J-1 visa waiver, the USCIS will start “counting” the five-year service requirement for the physician’s national interest waiver on the date that the foreign national switched from J-1 to H-1B status. This is done so that the foreign national will not be required to first complete three years of service for the J-1 visa waiver, followed by an additional five years for the physician’s national interest waiver.
While in many countries, nurses are required to hold advanced degrees to practice their trade, it is the position of the USCIS that a ‘nursing degree’ does not qualify as an advanced degree. Therefore, nurses who are attempting to apply for an immigrant visa under the EB-2 preference classification may have significant trouble and are encourage to apply under the EB-3 preference classification instead.
Foreign nationals who serve as physicians in their country of origin may still pursue an employment-based immigrant visa under the EB-2 preference classification, even if they do not wish to pursue the physician’s national interest waiver. Perhaps the individual is strongly opposed to serving five years in a federally designated underserved area or Veterans Affairs facility, and would rather apply for a visa without the additional requirements.
To receive an EB-2 immigrant visa as a physician without the national interest waiver, the foreign national must first demonstrate that they qualify for the EB-2 preference classification. As outlined above, the EB-2 visa preference classification requires that applicants either have an advanced degree (defined as a graduate degree or a bachelor’s degree plus minimum five years of relevant work experience) or qualify as an individual with exceptional ability. If the foreign national is an accredited physician in their country of origin, they should have degree roughly equivalent to the U.S. medical degree, which should qualify them under the first criterion for the EB-2 preference classification.
Next, in order to be granted an EB-2 immigrant visa without the physician’s national interest waiver, the aspiring U.S. physician must undergo the arduous labor certification process.
The intent behind the U.S. Department of Labor’s labor certification process for foreign workers is to guarantee that jobs are not being given away to foreign nationals when there exist ‘minimally qualified’ U.S. workers who are able and willing to take on the role.
In order to receive the EB-2 immigrant visa, the physician must have a permanent, full-time job offer from an employer who is willing to sponsor the visa as well as having successfully completed the labor certification application process and having shown that there are no ‘able, willing, and qualified’ U.S. workers to take the place of the foreign national in question.
The last requirement, which also would be a requirement for any of the roles which a foreign national would be seeking in the United States, is to pass the U.S. Medical Licensing Exam, as described above.
While the five-year service requirement of the physician’s national interest waiver may seem lengthy and undesirable, it may be the easiest way to guarantee that the foreign national will have their immigrant visa petition approved, given the number of U.S. citizens graduating from U.S. medical schools seeking the same jobs.