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National Interest Waiver Petitions

National Interest Waiver Petitions

The EB-2 classification requires a labor certification by the petitioning employer unless a national interest waiver is obtained. To obtain a national interest waiver the applicant must demonstrate that granting the EB-2 petition is in the national interest.

There are two kinds of national interest waiver applications available. One type is for physicians and the other type is for all other cases. The Administrative Appeals Office has established seven main factors that are considered in determining whether a particular job is in the national interest:

  • Improvement of the U.S. economy;
  • Improvement of the wages and working conditions for U.S. workers;
  • Improvement of educational and training programs for U.S. children and under-qualified workers;
  • Improvement of health care;
  • Provision of more affordable housing for young, aged, or poor U.S. residents;
  • Improvement of the U.S. environment and more productive use of the national resources; and
  • Admission is requested by an interested U.S. government agency.

More recently, the Administrative Appeals Office has focused on three factors:

  • The worker seeks employment in an area of “substantial intrinsic merit;”
  • The proposed benefit the worker will provide is “national in scope;” and
  • The national interest would be adversely affected if labor certification were required. In other words, the national benefit provided by the worker is so great as to outweigh the national interest in the labor certification process.

A physician national interest waiver is different from a standard national interest waiver. To be eligible for a physician national interest waiver, the foreign physician must:

  • Agree to work full-time in a clinical practice for five years unless the immigrant visa petition was filed prior to November 1, 1998, in which case the period of required service is 3 years;
  • Work in one of the following medical specialties: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, or psychiatry;
  • Serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Shortage Area (MHPSA – for psychiatrists only), Medically Underserved Area (MUA), or a Veterans Affairs facility; and
  • Obtain a determination from a federal agency or a state department of health that has knowledge of the physician’s qualifications, which states that the physician’s work is in the public interest.

A period of service in an underserved area can affect a physician’s ability to apply to adjust status. A physician can simultaneously file for adjustment of status when filing the I-140 petition unless green card numbers are not immediately available based on backlogs in the EB-2 category.

By applying for adjustment of status, the physician can also obtain an employment authorization document. This relieves the physician of having to maintain any type of valid nonimmigrant status. However, the physician may have an independent requirement to maintain H-1B status as part of a J-1 waiver service obligation.

While USCIS will allow the physician to apply for adjustment of status and obtain work authorization, USCIS will not make a final determination on any adjustment of status application submitted by a physician who is seeking a national interest waiver until the physician has practiced medicine full-time in a medically underserved area for an aggregate of 5 or 3 years, depending on the application filing date.

Upon receipt of the adjustment application on Form I-485, USCIS will note the date the physician began medical service, provide the physician with a list of evidence that must be submitted after the required period and provide the physician with a timeline by which the physician must send evidence to USCIS.

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