NATIONAL INTEREST WAIVERS
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 USCIS 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:
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.
WAIVER FOR PHYSICIANS
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 USCIS 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.
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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 Jethmalani & Nallaseth PLLC and the viewer.