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National Interest Waiver Eligibility for International Medical Graduates for the Journal of the American Medical Association
The United States’ immigration laws contain certain provisions that enable foreign nationals to qualify for permanent residence based upon employment. In most instances, an employer must go through a complex recruitment/advertising effort in order to establish that qualified US workers are not available to fill the position in question. Generally this labor certification application process is complex, time-consuming, and intense in that it requires the employer to demonstrate that the employment of a foreign national will not in any way decrease the availability of positions for US workers. However, an alternative pathway to permanent residence exists on the premise that the immigration of a foreign national can carry broad benefits to the United States. A recent initiative arising from the Immigration Act of 1990, this national interest waiver classification pathway has its antecedents in previous legislative enactments intended to induce “socially beneficial cooperative behavior.” Following the creation of this pathway, many providers willing to work in medically underserved areas successfully used the wavier provisions to expedite their application for permanent residence. Essentially, US immigration policies recognized that foreign physicians relocating to medically underserved communities provided certain “gap filling” services that contributed to the welfare of the US population. Starting in 1998, however, there emerged a growing pattern of denials of national interest waiver cases involving foreign national physicians. These denials were based on the argument that a physician’s contribution to a medically underserved community was local rather than national in scope , or that the stipulated term of a physician’s employment of 3 years (as required for J-1 wavier purposes) was not of sufficient duration to permit the physician to make a true and lasting impact on the community.6 This policy change coincided with the appearance of a number of workforce reports arguing that IMGs departed prematurely from at-risk communities, as well as a growing movement in the US medical establishment advocating harsher policies toward foreign-trained physicians.7 This resistance eventually matured into a blanket denial pattern of national interest waiver requests for foreign physicians as set forth in Matter of New York State Department of Transportation (NYSDOT).8 In essence, NYSDOT established a 3-part test for national interest waiver petitions: 1) the beneficiary must seek to work in an area of “substantial intrinsic merit”; 2) the beneficiary must provide a benefit that is national in scope and that is unmotivated by the alleviation of a local labor market shortage; and 3) the beneficiary must document a record of past accomplishments from which it can be concluded that he/she will serve the national interest to a greater extent than other persons with the same level of education, training, and/or experience.9 In the aftermath of NYSDOT, the Immigration and Naturalization Service (INS) became nearly uniform in its denial of cases filed for physicians under the national interest waiver standards, stating that “there is no indication in the legislative history, statute, regulations, or binding legal precedent that physicians as a group are exempt from the labor certification requirement.”10 Thereafter employers seeking to recruit IMGs were forced to go through the traditional labor certification application process with its attendant delays, uncertainty, and complexity. This situation created a particularly difficult situation for employers with special recruitment needs, such as employers located in designated medically underserved communities and facilities within the jurisdiction of the Department of Veterans Affairs. As a result of above-mentioned legislation, physicians working within designated medically underserved areas and/or within the Veterans Affairs system can again qualify for eligibility to permanent resident status pursuant to a national interest waiver. The crux of this new proposal is the recognition that a physician working in a designated medically underserved area addresses certain important national goals of alleviating physician distribution and practice area imbalance. This new measure does not create an unqualified entitlement to permanent resident status, as physicians applying to this program must fulfill a 5-year service commitment to a designated medically underserved area prior to obtaining permanent resident status. Nevertheless, it is the hope of workforce analysts that it will achieve its aim of facilitating the recruitment and retention of physicians in areas that have been underserved by the health care system. By Robert D. Aronson. * At the time this article was written, the Immigration and Naturalization Service (INS) served as the main immigration body of the U.S. Government. Since March 2003 immigration processing functions are a part of the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Ingber & Aronson to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences |
Aronson & Associates, P.A. |