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Value in Search of Meaning: National Interest Waivers Practice for Physicians Immigration Options for Physicians, Second Edition June 2004 This article concerns the waiver of job offer /national interest waiver provisions pertaining to physicians working in designated medically under-served areas or within the Department of Veterans Affairs (VA).1 These provisions carve out certain special, profession-specific initiatives, mandating the Attorney General to approve national interest waivers for a select class of physicians who are willing to work in the profession for a stipulated period of five years (or, for grandfathered cases as described below, for three years) in designated medically underserved areas or VA facilities. As such, this class of physi-cians is exempted from the general national interest waiver standards as articulated in the Matter of New York Department of Transportation (NYSDOT).2 However, in its regulatory implementation of the statute, the Citizenship and Immigration Services (hereinafter: USCIS or Service) arguably has blunted the congressional intention of having these provi-sions serve as a proactive measure for facilitating the relocation of physicians to underserved practice sites. By way of background, the national interest waiver classification was created in the Immigration and Nationality Act of 1990 (hereinafter, the Act), although the concept of immigration serving the national interest certainly has its antecedents in previous legislative enactments.3 While there may have been little direct leg-islative history behind the national interest waiver pro-visions, the presumed underlying policy corresponds to the basic jurisprudential principle that the law is in-tended either to reward desirable behavior or to induce “socially beneficial cooperative behavior”—i.e., to get people to undertake socially desirable actions which they otherwise might not undertake.4 Therefore, while most employment-based cases for permanent residence rely upon a test of the U.S. labor market, the national interest waiver provisions recognize that an alien’s contributions to overall U.S. national interests can serve as an alternative basis for permanent residence. In the initial period, physicians taking up employment positions in designated medically under-served areas were generally accorded favorable na-tional interest waiver consideration. Specifically, the legacy U.S. Immigration and Naturalization Service (INS) Administrative Appeals Unit provided some guideline factors in the Mississippi Phosphate case, which identified seven factors that were to be fa-vorably considered for national interest waiver pur-poses, including the improvement of health-care.5 In the ensuing period of time, many medical pro-viders located in medically underserved communi-ties utilized the national interest waiver provisions, which, incidentally, became a useful and powerful recruitment tool to get foreign physicians to practice in medically underserved practice locations. The legacy INS seemed to endorse the approvability of national interest waiver petitions by instructing that “the service centers should continue their past prac-tice of favorably adjudicating most national interest waivers for physicians who will be practicing in medically underserved areas of the United States.” 6 However, this generally favorable disposition to-ward national interest waivers for physicians was al-tered dramatically with NYSDOT, which ushered in a change from a fairly consistent pattern of approvals to a near blanket pattern of denials of physician cases. Yet, even in the post-NYSDOT period, the underlying rationale for denying national interest waiver peti-tions for physicians remained somewhat uncertain. Some tribunals maintained that physicians working within designated medically underserved areas rep-resented a local rather than national area of concern. Other cases relied upon a physician’s nonfulfillment of Prong 3 of NYSDOT’s test, which requires a showing of the alien’s extraordinary abilities to countervail the law’s general preference for testing the U.S. labor market through the labor certification process.7 In any case, the prevailing sentiment of the Service was that “there is no indication in the legisla-tive history, statute, regulations, or binding legal precedent that physicians as a group are exempted from the labor certification requirement.” 8 Yet, despite the removal of national interest waiver entitlement for physicians working in medi-cally underserved areas, the U.S. healthcare system unquestionably exhibits certain highly distressing attributes of national importance, including: A grossly expensive national healthcare system that consumes over 14 percent of our nation’s GNP and which, unless checked, will carry major, negative implications to our nation’s fiscal integrity; 9 Although the legislative history is largely silent on this subject, the special national interest waiver provisions for physicians were presumably enacted to address the disequilibrium in the national health-care system and to bring immigration law into alignment with other proactive measures intended to facilitate the relocation of physicians to medically underserved areas. In distilled form, the statutory language contains the following provisions:
Whereas the statutory provisions were signed into law on September 6, 1999, the regulations did not appear for roughly one year. As discussed below, it appears as though various regulatory provisions either directly contradict the statute or, at minimum, contradict the presumably expansive, proactive policy initiative inherent in the statute. This article analyzes the current implementation of the waiver of job offer/national interest waiver provisions for physicians and, in particular, discusses the apparent disconnect between the statute and current implementation policy of USCIS. The primary sources of the law appear at INA §203(b)(2)(B)(ii) and 8 CFR §204.12 (petition process) and 8 CFR §245.18 (adjustment process). In addition, there is a certain complementary overlap between the national interest waiver provisions of the Act and the J-1 waiver provisions for physicians relocating to designated medically underserved areas. 14 Limitation to Primary-Care Physicians The statute extends national interest waiver entitlement to “any alien physician” relocating for the required duration of practice to a designated medically underserved area. Yet, despite the clear statutory language which embraces any alien physician, the Service currently restricts national interest waiver entitlement solely to primary care physicians, i.e., front-line physician providers practicing in the areas of family medicine, general medicine, pediatrics, internal medicine, obstetric/gynecology, and psychiatry. The underlying rationale as provided by the Service is that the current system for making designations of medical underservice is based upon existing ratios between primary-care providers and the general population, which, by implication would exclude medical specialists. 15 There are two essential fallacies to the Service’s position. First, and perhaps most compelling, is the fact that the clear statutory language specifically extends to “any alien physician.” Had the Congress intended to limit applicability of national interest waiver entitlement to primary-care providers, pre-sumably it would have utilized this term of art, as is the case in other provisions of the law.16 Second, although medically underserved areas are designated based on the ratios between primary care physicians and the general population, the underlying policy of designating various areas as medically underserved is essentially intended to provide a manageable, statistically based method of determining the adequacy of healthcare coverage. Therefore, within the Medicare program, a medical specialist working within a designated medically underserved area will qualify for Medicare incentive payment plans.17 In short, there is no requirement that the physician practice primary-care medicine in order qualify for stepped-up Medicare reimbursement coverage; rather, the determinative factor is simply whether the medical specialist will be practicing medicine in a designated medically underserved area. Similarly, immigration benefits in medically underserved areas should not be limited to primary-care physicians. VA Situation In addition to geographic areas and medical facilities designated as medically underserved, the waiver of job offer/national interest waiver provisions also extend to physicians working within medical facilities operated by the Department of Veterans Affairs.18 As is the case in medically underserved areas, the VA system has chronically suffered from an inability to recruit sufficient numbers of physicians owing to a variety of circumstances, including: perceived inferior working conditions, noncompetitive salary arrangements, the preponder-ance of a largely geriatric and socio-economically depressed patient community, etc. In contrast to the situation affecting physicians working in designated medically underserved areas, physicians working in the VA system are not restricted solely to primary-care medicine. As a result, VA facilities can avail themselves of the national interest waiver provisions not only in the recruitment of primary care physicians, but also for medical specialists. Medically Underserved Designations The federal government has two primary ways of designating physician shortage areas. The first is the Health Professional Shortage Area (HPSA) designation, which is applied to areas having a primary care physician-to-population ratio of 1:3500 or lower. In certain cases, the HPSA designation will be given if the primary-care physician-to-population ratios are less than 1:3000. HPSA designations can be given to either an entire geopolitical unit (such as a county) or a sub-area (such as a census tract) or even to certain designated population groups or specific medical facilities. 19 The second federal designation is Medically Underserved Area/Medically Underserved Population (MUA/MUP). In many respects, the MUA/MUP schema represents a more exacting standard than the HPSA designation since it is not limited solely to physician-to-population ratios, but rather factors in a broader number of variables to determine the need for additional physicians in an area. The four variables used in a MUA/MUP designation are: (1) the ratio of primary care physicians to the area’s population; (2) the infant mortality rate; (3) the percentage of the population with income below the poverty level; and (4) the percentage of the population aged 65 or older.20 In general, though, the degree of medical underservice existing within MUA/MUP designated entities is considered less severe than is the case in HPSA designated areas. In order to qualify for national interest waiver entitlement, the physician needs to practice full time in a facility physically located in either a HPSA or an MUA/MUP. It is not sufficient simply to establish that the physician will treat patients drawn from designated medically underserved areas; rather, the determinative fact to establish is that the physician will be working in a full-time capacity in a facility physically located in a designated medically underserved area. Conversely, there is no affirmative requirement for national interest waiver purposes to show that the physician actually treats indigent, minority, or “at risk” patients. Rather, the law establishes a bright-line litmus test which simply presupposes that a physician physically practicing in a designated medically underserved area will indeed treat medically underserved segments of the community.21 While this presupposition is probably correct for physicians working within rural communities, it is probably not equally valid for physicians working within urban practice locations, given the close proximity of fully served neighborhoods (or census tracts) to areas designated as medically underserved. It also should be noted that in order to claim national interest waiver entitlement, an area needs to receive federal designation as medically underserved. Whereas many states have created their own systems for designating medically underserved communities or areas, such state-designated areas cannot serve as a basis for obtaining approval of a national interest waiver petition. Attestation Requirements The attestation requirement is perhaps the most chilling aspect of the national interest waiver provisions in physician practice. While the statute requires that “a Federal agency or a department of public health in any state needs to have previously determined that the alien physician’s work in such an area or at such facility was in the public interest,”22 the regulatory implementation of the statutory provisions creates a complicating, unnecessary, and self-defeating attestation requirement in three specific areas:
First, the regulations require that an attestation from a federal agency in support of a national interest waiver petition needs to endorse the physician’s practice capabilities and to establish the competence of the agency to issue such an evaluation. (Parenthetically, it should be noted that there is no such parallel provision for attestations issued by the state.) It would seem obvious that the congressional intent in requiring an attestation is to establish the need for a physician in a given community. However, the regulations go well beyond the statutory intent by requiring a federal agency to endorse the alien physician’s practice capabilities rather than the need for the physician’s services within a medically underserved community. Functionally, very few federal agencies have the capability to determine a physician’s intrinsic practice abilities. In fact, physician quality standards normally are set by the individual states through their medical licensing boards, which are an integral part of the states’ policing responsibilities for the health and welfare of its residents. It is a major incursion on an area normally reserved to the states as well as an unworkable system for federal agencies to also render substantive judgment on a physician’s practice abilities. Second, although the statutory language specifically refers to a “department of public health in any State,” the regulations limit the public interest statement solely to the state department of public health. In so doing, the regulations disqualify local and county departments of health from issuing valid attestations and instead vest this authority solely upon the state’s centralized and often bureaucratic department of health. Aside from the inherent violation of the statutory injunction, this policy deprives a county or local agency, which presumably is well aware of local community needs, from undertaking a necessary and appropriate function in facilitating the relocation of physicians to a local community. Third, the statute simply states that the attesting agency either at the federal or state level must have “previously determined that the alien physician’s work ... was in the public interest.”26 Regrettably, the implementing regulations require that, for national interest waiver purposes, the attestation statement must have been issued within the six month period prior to the filing of the immigrant visa petition. Functionally, this is highly troubling in that it eliminates the ability of a J-1 waiver beneficiary to utilize the initial interested government agency waiver recommendation which has also been endorsed by the U.S. Department of State (DOS) and, ultimately, the USCIS. In short, the merits of a physician’s relocation to a designated medically underserved area in many cases have already been exhaustively demonstrated as part of the J-1 waiver process. It would seem counterproductive to require the same physician to undergo yet another government clearance process in order to gain approval for a situation which has previously been endorsed as being in the public interest. 212(e) Waiver Approval The Service’s regulations require that a J-1 physician provide evidence of a Service issued waiver under the provisions of Section 212(e) of the Act in order to receive approval of a national interest waiver petition.28 In order to obtain permanent resident status through any available avenue (labor certification, national interest waiver, etc.), a current or previous J-1 physician needs to receive a 212(e) waiver 29 as well as fulfill the other provisions appearing at Section 214(l) of the Act. However, the presence or absence of the waiver is simply not germane to the approvability of the national interest waiver petition. Given that the approval of a national interest waiver petition triggers certain other benefits to an alien beneficiary (see discussion below on adjustment filing procedures) it is counterproductive to require the final USCIS-issued 212(e) waiver approval notice as part of the national interest waiver petition submission. Furthermore, it should be noted that an alien physician’s ability to adjust to permanent resident status is established at the time the DOS issues the waiver recommendation.30 Yet, through its stipulated requirement of the final USCIS waiver approval, the regulations require more stringent and restrictive documentation in order to file a national interest waiver than is required for adjustment purposes. Four/Six-Year Durational Limit for Fulfillment of Designated Service Obligation The statute stipulates that a physician needs to work for a period of five years in a designated medically underserved area prior to gaining eligibility for permanent resident status. (The sole exception is the three-year service requirement (over a four-year period) for certain grandfathered cases in which the petition was filed prior to November 1, 1998.) However, the regulations go on to stipulate that the required period of mandatory service needs to be completed within a six-year period of time, which, in general, commences when the physician receives employment authorization to work in a designated medically underserved area or a VA facility.31 The statute does not contain any such outer-most time limitation for fulfilling the mandatory service obligation. The regulations then go on to state that the physician bears the burden of showing adequate progress toward fulfilling the required five-year service obligation within the allowable period of time. Specifically, the physician needs to comply with a two-step reporting system. The first step needs to be completed within 120 days of the physician’s second anniversary of service in the medically underserved area and consists of “preliminary evidence” indicating that the physician has completed at least one year of employment.32 The second step occurs within 120 days of completing the full five-year service obligation and is a more extensive provision of evidence indicating that the physician has worked in a full-time capacity for the required period of service for the petitioning employer(s) in the medically underserved area(s).33 Failure to provide suitable documentation establishing fulfillment of this service obligation could be regarded as a material breach so as to result in a revocation of the national interest waiver petition itself. Furthermore, there are no provisions in the regulations that recognize extenuating circumstances as justifying the need for a longer period of time in order to fulfill the mandatory five-year service obligation. Given the need and, indeed, the pressure to fulfill the required five-year service obligation within a total period of six years, the commencement date for computing time spent working in a designated medically underserved area or within a VA facility is obviously quite important. Under the current system, the Service computes time creditable toward fulfillment of the five-year obligation as follows:
Duration of Contract The regulations stipulate that a national interest waiver petition needs to include a signed contract covering the “required period of clinical medical practice” which, as noted above, is for five years.35 This is regarded as an unduly burdensome, unwieldy, and unfair obligation since medical providers normally contemplate one-year contracts for physicians. Unquestionably, the burden lies with the applicant to establish a legitimate likelihood and intention of fulfilling the mandatory five-year service obligation. In addition, the law itself provides for mandatory reporting obligations to establish the physician’s progress toward fulfilling his or her five-year service obligation. Furthermore, the failure to fulfill this five-year obligation would be grounds for denying the final approval of permanent residence. In short, the law contains numerous other and more effective review processes to ensure the physician’s fulfillment of the five-year employment service obligation. It seems counterproductive to burden both the employer and the alien beneficiary with a requirement of a five-year contract when this flies in the face of accepted norms of medical employment practice. In contrast, physicians seeking national interest waiver benefits based on employment within VA facilities need only to present an employment commitment letter, which is conforming to existing employment practices within the VA system. It is somewhat perplexing as to why physicians working within designated medically underserved areas face a process that is at such odds with existing practice realities. 36 To be valid for national interest waiver purposes, either the contract or the VA commitment letter needs to have been issued and dated within six months of the date on which the petition is filed.37 Again, this flies in the face of practice reality since the contract or commitment letter would normally have been concluded at the time the parties were pursuing the J-1 waiver the approval, which, as noted above, needs to be included in the national interest waiver petition. Since the J-1 waiver process normally takes over six months, in most instances, more than six months would have lapsed between the commencement of the J-1 waiver process and the filing of the national interest waiver petition, which therefore requires the parties to redraft/update the contract as previously concluded. It should be noted that the regulations do not contain any substantive requirements for the contract. Therefore, for national interest waiver purposes, the parties appear to be free to negotiate at arms length on such issues as noncompete arrangements, liquidated damages, and termination provisions. However, many states have created restrictions on these specific issues as integral parts of their guidelines for their Conrad State 30 Waiver Programs. Multiple Petition Requirement A core concept of job offer waiver/national interest waiver practice is that the underlying basis of the alien’s entitlement to permanent residence does not lie in specific services to a specific employer, but rather in the nature of the alien’s overall employment services as favorably impacting national interests. Owing to this essential concept, the Service’s general policy is that a mere change of employment should not trigger a revocation of the immigrant visa petition, provided that the alien continues to work in the endeavor that initially merited national interest waiver approval.38 However, the physician-specific provisions of the national interest waiver regulations provide that any change in employer—even if such employer is located in the same designated medically underserved community— requires the submission of a new national interest waiver petition, including all of the stipulated supplementary material described above (i.e., attestation statement, et al.) Therefore, the physician not only has to establish a continuation of the underlying services and contributions serving the national interest, but also has to develop a new immigrant visa petition for Service adjudication. Adjustment Eligibility The regulations provide that the alien physician beneficiary of an approved national interest waiver along with his or her dependent family members can immediately file the adjustment applications whether or not the physician has completed the required period of medical service in the designated medically underserved area or within a VA facility. While this application cannot be approved until the physician has completed the required five-year period of service (or three years for grandfathered cases), the mere filing of the adjustment application provides the physician and dependent family members with the right to the benefits of employment authorization and advance parole. However, the adjustment filing procedures also need to be correlated with the H-1B service obligations appearing in Section 214(l) of the Act, which essentially requires that a J-1 waiver beneficiary work for three-years in H-1B status for the petitioning employer prior to gaining eligibility for permanent resident status. Conversely, the nonfulfillment of this H-1B service obligation could represent a material breach of the J-1 waiver so as to lead to a rescission of the waiver and/or ineligibility for permanent resident status. Therefore, national interest waiver beneficiaries previously holding J-1 Exchange Visitor status and who are subject to the H-1B service obligation of Section 214(l) can file their adjustment applications immediately upon approval of the national interest waiver. In most instances, this filing will take place prior to fulfillment of the §214(l) H-1B service requirement (3-years) and the §203(b)(2)(B)(ii) permanent resident requirement (normally, five years). The Service has specifically instructed that physicians can file their adjustment applications prior to their fulfillment of the three-year H-1B service obligation.42 However, such physicians should not apply for an Employment Authorization Document or in any other manner violate the terms and conditions of their H-1B status until they have fulfilled the mandatory H-1B service obligation of 214(l). Conversely, the dependent family members face no such restrictions in their eligibility to ancillary benefits to their adjustment filing. Therefore, even if the principal applicant is barred from obtaining employment authorization or advance parole, the dependents should be able to receive these specific benefits. Once the physician completes the stipulated H-1B service obligation, he or she could then apply for employment authorization. There is an ongoing obligation to work in a full-time (defined as 40 hours/week)43 capacity for the employer of record as located in the designated medically underserved area for the balance of the required five-year term. However, there is no prohibition or other impediment, should the physician work outside of the designated medically underserved area for periods over and above 40 hours/week. The regulations create a special filing procedure for adjustment applications. For national interest waiver beneficiaries, the physician shall withhold both the medical examination and the fingerprints from the initial adjustment application packet. However, once the physician fulfills the five-year service obligation, the physician then has a 120-day period to provide the following: (1) confirmation of having worked for the five year period of time which, per regulation, specifically needs to include copies of the alien’s individual federal income tax returns; (2) documentation from the employer confirming full-time employment over this period of time; and (3) medical examination results. 44 Relative Merits of Labor Certification Application vs. National Interest Waivers The regulations implementing the national interest waiver provisions for physicians present certain complex and seemingly contradictory procedural requirements. In addition, they create a five-year service obligation that needs to be fulfilled in order for the physician to gain eligibility for permanent resident status. Conversely, the labor certification approach carries no equivalent employment obligation and, as such, can afford a physician a more time-efficient pathway to permanent resident status. Furthermore, by definition, national interest waivers are restricted to designated medically underserved areas—i.e., those areas suffering from an endemic shortage of physicians so that a test of the labor market invariably fails to produce qualified U.S. applicants. Given these various disincentives, the issue arises as to when, if ever, a physician would seek to pursue permanent residence under a national interest waiver approach. A physician would probably want to utilize the national interest waiver approach if:
A physician would probably want to utilize a labor certification approach if:
At present, there is a major recognition that there are growing shortages of physicians in the United States which, if left unchecked, could result in alarming malfunctions in the access of major segments of the population to physician services. In particular, rural America and various urban pockets, as well as the medical system administered by the Department of Veterans Affairs, have historically faced major shortages of physicians. The national interest waiver provisions for physicians, appearing a INA §203(b)(2)(B)(ii) were specifically drafted to recognize the national importance of getting physicians to commit to practice situations which historically have been grossly understaffed. Arguably, the imple-mentation of these statutory provisions have injected a number of disincentives and conflicts with the statutory intent, thereby diluting the value of the statute into a less than vibrant shade of meaning. *Robert D. Aronson is a principal in the Minneapolis-based firm of Ingber & Aronson, P.A. He has held various leadership positions both within AILA and the medical communities on immigration issues pertaining to foreign physicians, and speaks and writes frequently on this area of the law. He holds his J.D. cum laude from the Indiana University School of Law and was a Fulbright Fellow at the Law Schools of Harvard University and Moscow State University. He is an Adjunct Professor at the University of St. Thomas, a former fellow of the Walter F. Mondale Leadership Institute, and currently serves as Vice Chair of the Hebrew Immigrant Aid Society (HIAS). He is also the liaison of the American Immigration Lawyers Association (AILA) on J-1 waiver matters with the Department of State. The author wishes to thank Salima Khakoo for her assistance with this article. 1. See INA §203(b)(2)(B)(ii). |
Aronson & Associates, P.A. |