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U.S. IMMIGRATION SYSTEM | hOT TOPICS NATIONAL INTEREST WAIVERS FOR PHYSICIANS Owing to the serious maldistribution patterns of physicians, broad areas of the United States are medically underserved. The Congress sought to address this situation by conferring National Interest Waiver entitlement to physicians who choose to work for five years in designated medically underserved areas. This National Interest Waiver approach provides a streamlined, generally time-efficient pathway to permanent residence, principally by enabling the alien physician (rather than the employer) to serve as the immigration sponsor, and by eliminating any type of further recruitment/advertising obligation. The Congress initially created the National Interest Waiver alternative in 1990, and then enacted special physician-related provisions in 1998. But in the implementation of the statutory directive, the legacy Immigration and Naturalization Service (INS) enacted certain highly restrictive provisions that excluded specialty care physicians from National Interest Waiver entitlement and set up certain additional disincentives for pursuing this National Interest Waiver option. As a result of a judicial decision entitled Schneider v Chertoff, U.S. Citizenship and Immigration Services issued a Memorandum on January 23, 2007, that modified and enlarged the scope of National Interest Waiver eligibility for physicians. In our opinion, this modification brings Service policy into greater alignment with Congressional intent. The major enlargements resulting from this Memorandum are: 1) availability of National Interest Waivers to physicians practicing in specialty medical disciplines rather than solely primary care positions; 2) recognition by the Service of all periods of a physician’s lawful employment in a medically underserved area as counting toward fulfillment of the mandatory five-year service obligation, rather that adherence to the previous policy of disallowing certain periods of employment services; 3) elimination of an artificial, mandatory six-year limit within which the five-year service obligation needs to be completed; 4) an unequivocal statement accepting the ability to concurrently file an I-485 Adjustment of Status Application even during the three-year J-1 service obligation; and 5) an enlargement of qualifying areas to include not just the Health Professional Shortage Areas (HPSA) and Medically Underserved Areas (MUA), but also to include areas designated as Physician Shortage Areas (PSA). |
Aronson & Associates, P.A. |