Physician National Interest Waivers (NIWs)

Physician National Interest Waivers ("NIW's"). Most J-1 waivers for physicians in conjunction with an application for permanent residence are based upon the national interest waiver ("NIW") category. Over the past 15 years foreign national physicians have had widely varying success in applying for permanent residency status in the United States. Since 1990, one path by which these physicians have remained in the United States is to apply for national interest waivers to circumvent traditional immigration certification requirements.

US immigration laws contain certain provisions that enable foreign nationals to qualify for permanent residence under the sponsorship of their employers. In most instances, employers must undergo a complex recruitment and advertising effort to prove that qualified US workers are not available to fill the position in question. This application process is generally complicated, time-consuming, and intense in that it requires employers to demonstrate that they are not decreasing the availability of jobs for US citizens by employing workers from abroad. Under this framework, foreign physicians are regarded primarily as a threat to the job security of US national doctors. The process is referred to as labor certification. A national interest waiver eliminates the requirement of obtaining a labor certification.

The national interest waiver ("NIW") is an alternate path to permanent residence. This visa classification recognizes that foreign physicians willing to work in medically underserved areas provide "gap-filling" services that contribute to the overall welfare of the population. Such physicians can apply to be excused from the traditional certification process if they provide documentation that it is in the "national interest" of the United States to admit them as permanent residents. NIW does not create an unqualified entitlement to permanent resident status, as foreign physicians must fulfill a five-year service commitment to a medically underserved area prior to obtaining permanent resident status. The practice must be located within an area that is designated as a Medically Underserved Area ("MUA"), a Primary Medical Health Professional Shortage Area ("HPSA"), a Mental Health Professional Shortage Area ("MHPSA"), or within a Veterans Affairs (VA) facility.

Physicians who agree to work full time in a designated health professional shortage area or in VA hospital and where a federal agency or State department of public health has determined that the physicians work is in the public interest for an aggregate of five years (not including time in J1 visa status) can obtain an NIW green card. The required five-year period of service need not be completed within the same shortage area. National interest waivers under this category are issued only to practitioners of general medicine, pediatrics, family medicine, internal medicine, obstetrics/gynecology, and psychiatry. Currently, physicians working at VA hospitals are not limited to primary care.

Shortage Designation.

The Shortage Designation Branch in the HRSA Bureau of Health Professions National Center for Health Workforce Analysis develops shortage designation criteria and uses them to decide whether or not a geographic area or population group is a Health Professional Shortage Area or a Medically Underserved Area or Population. More than 34 federal programs depend on the shortage designation to determine eligibility or as a funding preference. About 20 percent of the U.S. population resides in primary medical care Health Professional Shortage Areas.

• Health Professional Shortage Areas (HPSAs) may have shortages of primary medical care, dental or mental health providers and may be urban or rural areas, population groups or medical or other public facilities.
• Medically Underserved Areas (MUA) may be a whole county or a group of contiguous counties, a group of county or civil divisions or a group of urban census tracts in which residents have a shortage of personal health services.
• Medically Underserved Populations (MUPs) may include groups of persons who face economic, cultural or linguistic barriers to health care.

The Department of Health and Human Services (HHS) maintains a database for these areas.

In general, employers must be located in federally designated Health Professional Shortage Areas ("HPSAs") or Medically Underserved Areas ("MUAs") to obtain waivers for J visa holders, and the physician must practice primary care or psychiatry. However, the Veterans Administration (VA) sponsors both specialists and primary care physicians in its facilities across the U.S.

Sponsoring Agencies. Several federal agencies currently sponsor IMGs for waivers. These include the Appalachian Regional Commission (ARC), the Department of Health and Human Services (HHS), and the VA. Each federal agency still sponsoring J physicians has its limitations. ARC only sponsors J physicians in some 13 Appalachian states, while HHS sponsors some 200 J physicians annually in research positions and has recently started sponsoring a few primary care physicians. The VA only sponsors physicians directly employed by one of its facilities.

Common Misconceptions About Rural Practice. Some J-1 Physicians do not have a realistic appreciation of what serving in a rural HPSA community can involve. Some potential problem areas which may be encountered are:

1. A physician's expectations of rural practice are often very different from actual conditions, i.e. (i) medical equipment/technology will almost always be less than "state of the art", (ii) physician patient loads and responsibilities are often much greater because you may be expected to treat every patient that "walks in the door", (iii) s/he may be the only physician available for "on call" emergencies, etc.
2. Some physicians fail to make the effort or commitment required to assure the rural practice is successful. Failure to gain the trust and acceptance of the rural community can cause many to avoid utilizing his or her medical services.
3. A rural community can be the best environment for a young family today because of the crime and population density in many U.S. urban areas. Unfortunately, a physician's family members often do not see it that way. The spouse and/or children may become resentful and dissatisfied in a small town environment. (limited access to entertainment, shopping, dining, etc.)

Delaying the Two Year Requirement Deadline. When a suitable J-waiver position is currently unavailable, some J-1 Physicians may be qualified for and will seek O visa non-immigrant status, as an interim measure. This allows them to stay and work in the U.S. while exploring potential waiver options. Some choose O status in order to accumulate surplus funds with which to supplement their income when they leave the U.S. to satisfy the two-year requirement.

Returning Home is an Alternative to a J Waiver. You have an education, a medical license and are probably approximately thirty-two years of age. Projections indicate ever increasing shortages in most medical specialty fields as the U.S. population continues to age. Two years is not a long time if a waiver eligible position is either unavailable or undesirable. For my clients who choose to return "home", I advise that before departing the United States they obtain a medical license in a state where they expect to live and can locate an employer who will need someone with their qualifications in two years. Then a labor certification can be started as soon as they complete their residency and either an immigrant ("green card") or an interim H-1B visa can be waiting for their return to the U.S. as soon as they complete the two-year requirement back home.