When an alien applies for
permanent resident status, under the second preference of the employment-based category, on the basis that his/her entry
to the United States would be of ‘National Interest’, he/she may request for a
waiver of an offer of employment. This is known as a ‘National Interest Waiver’. There is no fixed rule or standard
by which an alien may qualify for a National Interest Waiver, and the INS
considers each case on an individual basis. The alien must provide evidence to
establish that his/her admission to the U.S. would be beneficial to the country
and would therefore be in the national interest. This waiver falls under
Section 203 of the Immigration and Nationality Act.
This waiver relieves the petitioner
from filing a Labor Certification.
An applicant would be able to
present a strong case if he/she could show that his/her admission would help
to:
1) improve
the U.S. economy
2) improve
wages and working conditions of U.S. workers
3) improve
educational and training programs for children and under-qualified workers
4) provide
affordable housing for under-privileged U.S. citizens
5) improve
the environment
6) make more
productive use of national resources
A national interest waiver is also
given if the alien’s admission is requested for by an interested U.S.
government agency.
Cases supported by affidavits from
well-known, established and influential people or organizations have a better
chance of being approved.
Under an amendment of the Act,
effective from November 12, 1999, the Attorney General has been directed to
grant a national interest waiver of the job offer requirement, to any alien
physician who agrees to work full time in a clinical practice for the period
fixed by statute. The required period of service is 5 years, but aliens who
have filed their immigrant visa petitions before November 1, 1998, need do only
3 years service. This service must be provided by the alien physician in an
area designated by the Health and Human Services (HHS), as having a shortage of
health care professionals or at a Veteran Affairs (VA) facility. These areas
are designated by the HHS as Medically Underserved Areas, Primary Medical
Health Professional Shortage Areas or Mental Health Professional Shortage
Areas. The alien physician must obtain a prerequisite from the HHS, VA, a
federal agency or a State department of public health that the physician’s work
in such an area is in the public interest.
Although Section 203 (b) (2) (B)
(ii) of the Act states that ‘any physician’ may petition for a national
interest waiver, the INS notes that the HHS currently limits physicians in
designated shortage areas to the practice of family or general medicine,
pediatrics, general internal medicine, obstetrics/gynecology and psychiatry.
Until the HHS establishes shortage areas for other fields of medicine, only the
above-mentioned fields are covered by this rule.
Alien physicians who are already
in the United States holding either J-1 or H-1B non-immigrant status and are
applying for an adjustment of status, may apply for
this waiver under the new provisions of this Act. However, any time spent by
the applicant in J-1 non-immigrant status does not count towards the 5
or 3 year period of mandatory medical service in underserved areas. Also, those
physicians living abroad who have the requirements necessary for practice of
medicine in the United States and are eligible for the EB-2 immigrant visa, may
seek a national interest waiver of the job offer requirement.
The INS recognizes that there may
be interruptions in the service period due to job loss or family problems, and
therefore an interim rule allows the applicant to fulfill the aggregate of 5
years full-time service within a period of 6 years, beginning from the date of
approval of the Form I-140 petition and national interest waiver, and those
cases filed before November 1, 1998 who have to fulfill 3 years may do so
within 4 years. If employment authorization is necessary, then the service
period begins from the date the INS issues an Employment Authorization Document
(EAD).
When applying for a national
interest waiver, the alien must submit all the documents required in a regular
case as well as evidence to establish that the physician will be working in an
HHS designated medical shortage area or a VA facility. An attestation from the
HHS, VA, a federal agency or a State department of public health, certifying
the physician’s qualifications is also necessary.
Click here
to see list of Health Professional Shortage Areas (HPSA).
When determining whether a waiver of the job offer requirement would be in the national interest, the INS requires to establish through supporting documents that the alien possesses unique skill, knowledge, abilities or experience that will benefit the United States or a particular geographic area of the United States. This evidence must show that the alien’s skill, knowledge, abilities or experience is far above others in that particular field. Documents that can prove that the alien will play a ‘key’ role in a project of national, state or local importance will carry a lot of weight. It is not enough to show that the alien is a competent person – he/she must show how he/she is set apart from the others in that field.
According to the rules proposed by
the INS in June 1995, the following four criteria must be met to qualify for a
national interest waiver.
1) The alien
must have at least two years experience in the area in which he/she will
benefit the United States. This period of experience does not include time that
the alien has spent as a part or full time student.
2) The
application for a national interest waiver cannot not be based solely on the
alien’s ability to improve a local shortage of jobs.
3) The alien
must be involved in an undertaking that will substantially prospectively
benefit the United States. The emphasis must be on the particular national goal
that will be promoted.
4) The alien
must be actively involved in the work that will prospectively benefit the
United States. The alien must establish that he/she will play a significant
role in advancing the particular national goal.
Further details may be obtained
from the relevant INS center.
v
National Interest Waiver for Physicians
The information in this article is of a general
nature and may not apply to any specific or particular circumstance. It is not
to be construed as legal advice and does not establish an attorney-client
relationship between The Law Offices of Cyrus S Nallaseth and the viewer.