2000 Update on National Interest Waivers

September 2000
By Robert D. Aronson

This article concerns the issuance of an Interim Final Rule which was published in the Federal Register, issue of September 6, 2000, which implements the National Interest Wavier provisions for physicians working in designated medically underserved communities or within VA medical facilities.

This new Rule will become effective on October 6, 2000. While this is not as of yet a Final Rule and is therefore open to certain changes resulting from the mandatory 60-day comment period, I believe that a preliminary analysis of these new implementation policies will be of benefit to the physician community.

As background, for years the Immigration and Naturalization Service* had approved National Interest Waiver petitions filed for physicians working within designated medically underserved areas and/or VA medical facilities. By definition, a National Interest Waiver is an immigrant visa petition filed directly to the Immigration and Naturalization Service (INS) under a claim that the foreign national’s continued residence and employment in the United States will serve U.S. national interests. However, owing to an administrative decision issued in August 1998, all such National Interest Waiver petitions as filed for physicians were being denied until the Congress passed new legislation which was signed into law on November 12, 1999, restoring National Interest Waiver entitlement to physicians. This new law provides that a physician could indeed qualify for permanent residence based upon a National Interest Waiver upon his/her completion of a stipulated period of medical service working either within either a designated medically underserved area or a VA medical facility. For cases filed prior to November 1, 1998, this required period of service was set at three years; for all National Interest Waiver petitions filed subsequent to November 1, 1998, the required period of service was set at five years.

However, since last November, the Immigration and Naturalization Service has taken little action in implementing this new legislation, owing to the absence of implementing regulations. Potentially, the issuance of the Interim Final Rule is a proactive first step in the implementation of this legislation, although as discussed below, the initial INS implantation guidelines raise a great many concerns. Some of these issues may get worked out during the 60-day comment period; other issues may be the subject of ongoing discussion and perhaps even litigation.

In my opinion, the primary benefits contained in this new rule of the National Interest Waiver provisions are:

1. The issuance of this Interim Final Rule conceivably will prompt the INS to adjudicate immigrant visa petitions filed under the National Interest Waiver provisions rather than holding them in abeyance as has been the case over these past months;
2. This Interim Final Rule specifically states that a qualifying physician can file an application to adjust to permanent resident status immediately upon approval of the National Interest Waiver petition, thereby qualifying the dependent family members for employment authorization. This unquestionably is a major benefit. However, this adjustment application cannot be approved unless and until the physician has served a full five-year ( in some cases, three year) term in a designated medically underserved area or a VA medical facility.
3. The National Interest Waiver provisions enable a physician to self-sponsor himself/herself – i.e., to file the immigrant visa petition without the direct sponsorship of a specific employer. To be sure the law contains provisions which will require the physician to periodically present confirmation that he/she is indeed working in a designated medically underserved area or a VA facility and failure to do so could lead to revocation of the National Interest Waiver and conceivably subject the physician to removal (i.e., deportation) proceedings.
4. The Interim Final Rule also has certain more liberalized provisions which enable a physician to change employers, provided that the physician continues to work in geographic areas which have been designated as medically underserved or within VA medical facilities. These transfers are not automatic; rather, the requesting physician needs to submit a new immigrant visa petition for every change in employer site.

As briefly stated above, we believe that the issuance of this Interim Final Rule will also induce the Immigration and Naturalization Service to again resume its processing of National Interest Waiver petitions for physicians. Based on a directive issued this past December, the INS stated that it would hold National Interest Waivers in abeyance until regulations were issued. As a result, we have seen a build-up of pending and unadjudicated National Interest Waiver petitions over these past months. Presumably, this bottleneck will now be dissolved, although I cannot predict with any exactitude when we might expect to receive the approval of your own petition.

Probably the greatest benefit contained in new Interim Final Rule is that it will enable physicians and their dependent family members to file their applications to adjust to permanent resident status immediately upon approval of the National Interest Waiver. While a qualifying physician will not actually be able to receive his/her permanent resident status (i.e., the "green card") until the physician has completed the 3/5 year period of service working in a designated medically underserved area or within a VA medical facility, at least the physician will be able to file the adjustment of status application thereby qualifying both the physician and his/her dependent family members for Employment Authorization Documents. Under this rule, once the physician has filed his/her adjustment applications, he/she will no longer need to file H-1B extensions provided that the physician has completed the three-year H-1B service obligation which arose upon receipt of the J-1 waiver.

Please note: the law is absolutely clear in stating that a physician needs to fulfill the required five-year period of service (or in some "grandfathered" cases, three-years of service) working full time (i.e. 40 hours/week) in a designated medically underserved area or within a VA medical facility. In fact, the law contains certain specific provisions which will require the revocation of a previously approved National Interest Waiver in the event that the physician fails to fulfill the mandatory term of service within a designated medically underserved area or within a VA medical facility. In a sense, once a physician files an adjustment application under the new provisions, the physician could open himself/herself to a review by the INS as to any irregularities in employment over the past period of time. Any such irregularities could lead to a revocation of the previously approved National Interest Waiver petition and could then subject the physician to removal (i.e., deportation) proceedings.

In addition, the law is quite confusing as to whether a physician who holds an approved National Interest Waiver immediately gets his/her permanent resident status upon completion of the required five year period of employment or whether the physician needs to continue to work in an underserved area or VA facility upon until permanent residence is granted. If this latter scenario prevails, a physician could wind up working for a substantial period of additional time since the final steps of an adjustment application (i.e., medical examinations and fingerprinting) cannot be undertaken until completion of the required period of service.

There are also other provisions of the Interim Final Rule which are of concern, including:

1. The requirement that the five year service obligation be completed within a six year period of time which simply does not allow for the possibility of unforeseen, emergency circumstances;
2. The fact that for some classes of physicians, the mandatory period of service does not start to run until the National Interest Waiver petition has been approved, thereby discounting any previous periods of authorized employment in the underserved community or in a VA medical center;
3. A restriction of National Interest Waiver entitlement strictly to primary care physicians as opposed to physician practicing in medical specialties;
4. A stipulated requirement that the employment needs to be full-time as defined as 40 hours per week which could create a problem with certain types of employment positions in which the definition of "full time" involves a lesser period of employment;
5. The requirement that an approvable National Interest Waiver contain a recommendation statement from a federal agency or a State Department of Health issued within the previous six month period of time indicating the public interest in the physician’s employment in the designated medically underserved area;
6. The requirement that the physician or his/her employer file successive National Interest Waiver petitions upon relocation to another underserved community or VA medical facility within the required period of service;
7. An ongoing, time sensitive, and highly rigorous requirement of showing ongoing compliance with the commitment of service to an underserved community or a VA medical facility which carries dire consequences upon non-fulfillment;
8. A requirement that a federal agency attest to the physician’s qualifications for National Interest Waiver purposes rather than a far more sensible and appropriate requirement of having the agency’s review limited to a statement of the need for and the public interest in the physician’s employment in a designated medically underserved area and/or a VA medical center;
9. A disallowance of the right of local healthcare agencies of a State’s department of health to issue a public need statement, despite that fact that it is precisely these agencies which have the most complete knowledge of the local health coverage situation;
10. A very conservative and perhaps unfair interpretation which restricts unduly National Interest Waiver cases qualifying for "grandfathered" treatment which would thereby require a three-year as opposed to a five-year service obligation.

Many of these above-listed issues will undoubtedly be addressed in this immediate forthcoming period of time. Hopefully, many of these initial INS rules will become revised and we believe that there is legal authority which may well lead to an amelioration of some of the more problematic provisions of the new INS implementation procedures.

By Robert D. Aronson
September 2000

* At the time this article was written, the Immigration and Naturalization Service (INS) served as the main immigration body of the U.S. Government. Since March 2003 immigration processing functions are a part of the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS).

This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Ingber & Aronson to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences.

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