While a PERM Labor Certification usually is required for employment-based immigration, this requirement is waived where a foreign national worker could prove that their case is in the national interest of the United States. This is commonly known as a "National Interest Waiver" (or, "NIW").
Different Types of NIW Case
There are two types of NIW that are available: the regular NIW case and the physician NIW case.
In regular NIW cases, U.S.C.I.S. will look to a set of criteria to determine if the immigration of a particular foreign national worker would be in the "national interest." These criteria broadly include the following: (1) Whether the foreign national worker's admission will improve the U.S. economy; (2) Whether the foreign national worker's admission will improve wages and working conditions for U.S. workers; (3) Whether the foreign national worker's admission will improve educational and training programs for U.S. children and under-qualified workers; (4) Whether the foreign national worker's admission will improve health care; (5) Whether the foreign national worker's admission will provide more affordable housing for young, aged, or poor U.S. residents; (6) Whether the foreign national worker's admission will improve the U.S. environment and lead to more productive use of the national resources; or (7) Whether the foreign national worker's admission is requested by an interested U.S. government agency.
Physician NIW cases are different. To be eligible for an NIW, a foreign national physician must agree to work full-time in a clinical practice for five years. They must work in one of several fields, which might include family medicine, pediatrics, internal medicine, obstetrics/gynecology and/or psychiatry. They must serve for the five year period in a Health Professional Shortage Area ("HPSA"), a Medically Underserved Area ("MUA"), Veterans' Affairs ("VA") facility or - for psychiatrists - a Mental Health Professional Shortage Area ("MHPSA"). They also must obtain a determination from a federal government agency or a state department of health that the foreign national physician's work is in the public interest.
Calculation of the Five Year Service Period
The starting point for the five year service period will vary depending on whether the foreign national worker previously secured a J waiver based on service in an underserved area or not. It should be noted that previous periods of employment in another status (such as H-1B or O-1 status) could qualify. However, time spent in J-1 status would not count towards the five year service period.
While there does not need to be one continuous five year period of employment, U.S.C.I.S. will check after prescribed intervals to confirm that progress is being made towards the satisfaction of this requirement. In addition, it is possible for foreign national physicians to complete their five years in different shortage areas and for a different employer than the original NIW petition sponsor.
Types of Permissible Employment
The NIW requirements could be met through full-time employment, self-employment (where employment authorization is available) or even some combination of multiple employments.
If the foreign national physician will complete the five years of service as an employee, he or she must submit to U.S.C.I.S. a full-time employment contract which covers the required amount of clinical medical practice, or an employment commitment letter from a VA facility. The contract or commitment letter must be dated within six months prior to filing the NIW petition.
If the foreign national physician were to be establishing his or her own practice, a sworn statement must be submitted in which there is an intent to complete the commitment in solo practice in an underserved area. In the statement, there also must be a description of the steps the foreign national physician has taken (or will take) to establish his or her own practice (such as the incorporation of the practice, setting up bank accounts and signing a lease).
U.S.C.I.S. will approve NIW petitions for foreign national physicians who will work in family or general medicine, pediatrics, internal medicine, obstetrics/gynecology, psychiatry. Indeed, U.S.C.I.S. has been approving NIW petitions for specialists working in any designation of shortage area.
Determination that Physician's Work is in the Public Interest
Along with the NIW petition, the foreign national physician must include a letter from the Department of Veterans Affairs - or (where appropriate) from a state department of health. In that letter, the relevant government agency must attest that the foreign physician’s work is - or will be - in the public interest. This letter must be issued and dated within six months prior to the date on which the petition is filed.
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