Chapter 6 - Physician

A. Petition for Physician Supported by Permanent Labor Certification

1. Determining Whether Physician has met Minimum Requirements for Position

Officers must determine whether the noncitizen physician (physician) met the minimum education, training, and experience requirements of the permanent labor certification as of the date of its filing with the U.S. Department of Labor (DOL) in order to establish the physician’s eligibility for the classification.^[1] Although a permanent labor certification may not specify that a license is required for a physician position, physicians involved in patient care must obtain a license to practice medicine in the location where they are to be employed in the United States as a matter of state or territorial law.^[2]

Therefore, it follows that any candidate for such a position must, at the time of the permanent job offer, either possess a permanent license to practice medicine or be eligible for such a license in the state of the intended employment in order to be qualified for entry into the position. In the case of a physician petition supported by a permanent labor certification, the job offer is considered to have been made as of the date of the filing of the permanent labor certification.

License to Practice Medicine^[3]

Each U.S. state has a medical board that devises its own educational, training, and experience requirements that physicians must meet in order to be granted a permanent license, more specifically, a full and unrestricted license, to practice medicine in that state. A full and unrestricted license to practice differs from a limited license to practice medicine. Limited licensure is typically granted to physicians who are still working towards obtaining the credentials required for full licensure or who may be providing limited medical care, such as a physician who is working at a summer camp as a camp physician for a short period of time.

In general, there are two pathways to obtain permanent licensure to practice medicine as a physician: either as an initial applicant for licensure, or as an applicant for licensure by endorsement.

The initial applicant pathway is for medical school graduates who have never obtained a permanent license to practice medicine as a physician in the United States, or in some instances, Canada. An initial applicant must show that he or she has any requisite medical degree, post-graduate training, residency, and board certifications, and has passed the medical examinations required by the state medical board.

All U.S. states require licensing candidates to make an application for licensure with their medical board to demonstrate that they meet the requirements of licensure regardless of previous licensure.^[4] This pathway is often referred to as an endorsement application and involves:

• A verification of the standing of the applicant’s license(s) issued by another U.S. state or territory, and in some cases by a foreign country; and

• A review of the applicant’s education, training, and medical examinations to determine if the applicant meets the requirements of the state medical board.

U.S. states do not generally allow a physician to practice medicine within their jurisdictional boundaries based on a license issued by another state or territory (referred to as automatic reciprocity). Certain exceptions may exist for physicians practicing at federal medical facilities and in other very limited circumstances.

In some states, applicants must pass medical examinations, such as the U.S. Medical Licensing Examination (USMLE), within a certain number of attempts or within a certain timeframe in order for the examination results to be considered valid for licensure. In addition, approximately 75 percent of the U.S. states require foreign medical school graduates to complete additional post-graduate medical training or residencies beyond that required for U.S. medical school graduates.

In order to approve a petition supported by a permanent labor certification filed on behalf of a physician, the petitioner must show that, at the time of the filing of the permanent labor certification, the physician:

• Possesses a permanent license to practice medicine in the area of intended employment; or

• Has met all of the requirements to be eligible to obtain such a license in the area of intended employment, notwithstanding eligibility requirements that are contingent upon his or her immigration status in the United States.

Some state medical boards do not issue a license to practice medicine unless the applicant presents evidence that he or she is legally authorized to be employed in the United States or has obtained a U.S. Social Security Number (SSN). State licensure criteria relating to the applicant’s U.S. immigration status, such as a requirement that the applicant must be a lawful permanent resident (LPR) or must otherwise possess employment authorization or an SSN, should not be considered relevant to the adjudication of the petition as the petition is the means by which the physician would obtain LPR status and eligibility to accept employment and obtain an SSN in the United States.

Officers review the evidence provided in support of the petition to determine if the physician had a permanent license to practice or was eligible to obtain such a license in the location of intended employment at the time of filing of the permanent labor certification. Information regarding the licensure requirements for U.S. states can be obtained from the Federation of State Medical Boards^[5] and at the various U.S. medical board websites.

2. Foreign Medical Degree Equivalency

The United States is one of the few countries where medical school applicants are required to obtain a bachelor’s degree as a requirement for admission to medical school. As a result, a U.S. medical degree is considered to be an advanced degree.

In many other countries, a person may be admitted to medical school directly out of high school. In these instances, the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than is required for a less specialized foreign bachelor’s degree (generally 3-4 years in duration). In some countries, the name of the degree is “Bachelor of Medicine, Bachelor of Surgery," and the program of study may involve only medicine, to include some limited basic sciences.

A foreign medical degree may qualify as the equivalent of a U.S. medical degree and therefore an advanced degree for purposes of this visa classification if, at the time of the filing of the permanent labor certification application, the following two conditions are met:

Condition 1: The beneficiary:

• Has been awarded a foreign medical degree from a medical school that requires applicants to obtain a degree equivalent to a U.S. bachelor’s degree as a requirement for admission;

• Has been awarded a foreign medical degree, and the petitioner has provided a foreign education credential evaluation that credibly describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States; or

• Has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) or an equivalent examination, such as the USMLE, Steps 1, 2, and 3.

Condition 2: The beneficiary was fully eligible for the position described on the permanent labor certification application on the date that it was filed, and the petitioner has established that:^[6]

• The beneficiary had a full and unrestricted license to practice medicine in the place of intended employment and continues to hold such unrestricted license; or

• The beneficiary’s foreign medical degree meets the medical degree requirements to be eligible for full and unrestricted licensure specified by the medical board governing the place of intended employment.

Each U.S. state, the District of Columbia, and the U.S. territories have a medical board that devises its own medical degree requirements that candidates must meet in order to be licensed to practice medicine in that jurisdiction.

B. Physician National Interest Waiver

1. Purpose, Background, and Legal Authority

Statutory and Regulatory Authorities^[7]

The Nursing Relief for Disadvantaged Areas Act (Nursing Relief Act) of 1999 amended the Immigration and Nationality Act^[8] to establish a national interest waiver (NIW) of the DOL’s permanent labor certification process for certain physicians petitioning for advanced degree professional or exceptional ability classification.^[9]

USCIS grants a NIW of the job offer requirement, and therefore the permanent labor certification requirement, for any physician seeking advanced degree professional or exceptional ability classification:

• The physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and

• A federal agency or a department of public health in any state has previously determined that the physician’s work in such an area or at such facility is in the public interest.^[10]

The physician may not receive LPR status until he or she has worked full time as a physician for an aggregate of 5 years in the shortage area, or 3 years in the shortage area if the physician petitioned for the NIW before November 1, 1998.^[11]

On September 6, 2000, legacy Immigration and Naturalization Service (INS), now USCIS, issued an interim rule implementing the physician NIW provisions.^[12]

Consistent with the statute, the regulations allow filing of a physician NIW and an adjustment application without the physician first completing the 3 or 5 years of service in shortage areas. The regulations include provisions that:

• Require physicians who had an NIW denied prior to November 12, 1999, to complete the 5-year rather than the 3-year service requirement;

• Require NIW physicians to comply with reporting requirements, including submitting initial evidence within 120 days of the completion of the second year of service and additional evidence within 120 days of completing the fifth year of service to establish that they were still engaged in the area of medical practice that was the basis for approval of the NIW; and

• Limit NIW eligibility to physicians who practiced in a medical specialty that was within the scope of the shortage designation for the geographic area.

Schneider v. Chertoff

Plaintiffs in Schneider v. Chertoff^[13] challenged specific provisions of the agency’s physician NIW regulations and, in its decision issued on June 7, 2006, the Ninth Circuit found that three regulatory provisions were beyond the scope of the statutory language.^[14] The court held that:

• Medical practice completed before the approval of the employment-based petition (except medical practice as a J-1 nonimmigrant) counts toward the service requirement;

• NIW physicians who had immigrant visa petitions filed on their behalf before November 1, 1998, but were denied before November 12, 1999, need only fulfill the 3-year service requirement; and

• The regulatory period of 4 years (where 3 years of service is required) or 6 years (where 5 years of service is required) within which NIW physicians must complete the medical service requirement is not a permissible interpretation of the statute.

On the remaining two challenged provisions, the court held that USCIS has the authority to impose reporting requirements on NIW physicians to ensure compliance with the statute and declined to address the question related to whether medical specialists should be covered under the statute.^[15] The plaintiff who raised the claim had his NIW and petition denied due to abandonment, thereby mooting the issue.

USCIS remains committed to advancing the congressional intent of providing quality medical care in designated underserved areas and also is mindful of the states’ direct interest in obtaining necessary medical care in underserved areas and their critical role in coordinating with USCIS in the NIW process.

USCIS, however, is not required to allow a physician with an approved NIW and pending adjustment application to continue receiving interim work and travel authorization for an unlimited period without some evidence that the physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval.

Therefore, while USCIS amended NIW procedures to meet the Schneider decision (for example, not impose a specific timeframe within which the required medical service must be performed), an officer may exercise discretion to deny employment authorization or an adjustment application if he or she believes that the physician is using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.

2. Eligibility

The basic eligibility requirements for the physician are:

• The petitioner has filed a petition under INA 203(b)(2), along with the physician NIW request;

• The physician agrees to work full time in a clinical practice providing primary or specialty care in an underserved area or at a U.S. Department of Veterans Affairs (VA) health care facility for an aggregate of 5 years (not counting any time in J-1 status, but including such time that may have preceded the petition filing);^[16] and

• A federal agency or a state department of public health, with jurisdiction over the medically underserved area, has determined that the physician’s work in the underserved area or the VA facility is in the public interest (and, to the extent that past work is presented, that it was in the public interest).^[17]

Primary or Specialty Care

Since 2000, legacy INS, and now USCIS, has given state departments of health more flexibility to sponsor waivers for physicians willing to work in medically underserved areas. For instance, under the Conrad 30 Waiver program, state departments of health may sponsor waivers for J-1 specialist physicians who will provide services to medically underserved populations (MUP).^[18] The Conrad program is similar to the NIW program as they both have a medical service requirement under which the physician must work in a medically underserved area.

Based on the U.S. Department of Health and Human Services’ (HHS) criteria published in 2000, USCIS (and legacy INS) limited its definition of qualified physicians in designated shortage areas to those who practiced primary care medicine, including family or general medicine, pediatrics, general internal medicine, obstetrics and gynecology, and psychiatry.^[19]

As of January 23, 2007, USCIS began accepting NIW petitions on behalf of primary and specialty care physicians who agree to work full time in areas designated by the HHS as having a shortage of healthcare professionals (for example, health professional shortage area (HPSA), medically underserved area (MUA), MUP, and, at the time, physician scarcity areas (PSA)).

In addition, in 2016 the Administrative Appeals Office clarified that, regardless of whether the shortage designation is seemingly limited to primary care physicians, in addition to primary care and specialty care physicians, medical specialists who agree to practice in any area designated by HHS as having a shortage of health care professionals may be eligible for the physician NIW.^[20]

The Nursing Relief Act^[21] requires USCIS to recognize HHS designations of health professionals without limitation to primary care. Accordingly, USCIS recognizes NIW physicians in primary care and specialty care. A specialty physician is defined as other than a general practitioner, family practice practitioner, general internist, obstetrician, or gynecologist. Dentists, chiropractors, podiatrists, and optometrists do not qualify for the physician scarcity bonus as specialty physicians, and therefore, cannot qualify for the NIW.

A physician or employer must submit evidence showing that a geographic area is or was designated by HHS as having a shortage of health care professionals. The designation must be valid at the time the NIW employment began. If the area loses its HHS designation after the physician starts working, a physician can remain at the facility and the time worked after that point qualifies as NIW employment so long as the employment continues to satisfy all other NIW requirements.

Medically Underserved Areas

In designating areas of the country as “underserved,” the Secretary of Health and Human Services addresses the shortage of family or general medicine and sub-specialist physicians (designations include HPSA, MUP, and MUA). For work that preceded the filing of the petition, the area must have been a designated shortage area at the time the work commenced but need not have retained such designation. For shortage designations, see these sources:

• HHS Health Resources and Services Administration to determine if a geographic area is an MUA or MUP.

• HHS Centers for Medicare and Medicaid Services to determine if a geographic area is an HPSA.^[22]

Physicians serving at VA facilities are not bound by the HHS categories noted above. The VA may petition for physicians who specialize in various fields of medicine, and the location of the work need not be in an underserved area.

Time Limit to Complete the Required Medical Service

The physician has no set time limitation to complete the 3 or 5 years of aggregate service, which may include periods of service prior to the filing or approval of the petition. While there is no set time limitation, a NIW physician must submit interim evidence of compliance with the medical service requirement before USCIS approves the adjustment application.

While officers cannot revoke the approval of a petition or deny an adjustment application for a physician solely because the physician did not complete the 3- or 5-year service requirement within a certain timeframe, officers may deny an adjustment application as a matter of discretion if the physician appears to be using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.^[23]

3. Evidence

Physicians seeking an NIW based on service in an underserved area or at a VA facility must submit the following supplemental documentation with the petition:^[24]

• Employment contract or employment commitment letter covering the required period of clinical medical practice. For work that the physician has not yet started, the contract or employment commitment letter must be issued and dated within the 6-month period before the filing date of the petition.^[25] This 6-month requirement does not apply to work that has been completed or that started before the filing date of the petition.

• Public interest letter from the federal agency or state department of public health attesting that the physician’s work is or will be in the public interest. For work that the physician has not yet started, the letter must be issued and dated within the 6-month period before the filing date of the petition.^[26] This 6-month requirement does not apply to work that has been completed or that started before the filing date of the petition.

If a physician acquired experience with more than one employer, the record must contain evidence of all service in an underserved area or at a VA facility. The physician must also submit evidence to demonstrate that the physician has met all other eligibility requirements for classification as a person with an advanced degree or exceptional ability,^[27] other than the permanent labor certification.

In particular, a physician needing a waiver of the J-1 foreign residency requirement must still obtain such a waiver under INA 212(e) and satisfy all the waiver conditions^[28] (including 3 years of service) before USCIS may approve the physician’s adjustment application.^[29]

Admissibility Requirements

The Immigration and Nationality Act (INA) requires physicians to meet specific admissibility requirements relating to passing professional medical examinations and English language competency.^[30]

The physician must provide evidence that he or she has passed parts I and II of the NBMEE or an equivalent examination as determined by the Secretary of Health and Human Services. The NBMEE, also known as the NBME, ceased to be administered in 1992. The USMLE, which was first administered in 1992, is considered an equivalent examination.^[31]

In addition to having passed either the NBMEE, USMLE, or one of its equivalents, the physician is also required to provide evidence of competency in oral and written English. An Educational Commission for Foreign Medical Graduates (ECFMG) certification showing the physician has passed the English language proficiency test meets this requirement.^[32]

Physicians seeking a physician NIW must provide documentation to establish admissibility^[33] at the time of filing of the petition.^[34] In contrast, physicians filing petitions with a permanent labor certification must establish admissibility^[35] at the time of the filing of the permanent labor certification.

Requests to Practice in a Different Underserved Area

USCIS regulations allow a physician with an approved petition and a pending adjustment application to practice medicine in a different underserved area or a different VA facility. Physicians must follow certain procedures, including filing an amended petition, in order to request such a change of practice.^[36]

Footnotes

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[^ 1] See Matter of Wing's Tea House (PDF), 16 I&N Dec. 158 (Act. Reg. Comm. 1977).

[^ 2] See the American Medical Association’s Navigating State Medical Licensure.

[^ 3] See the American Medical Association’s Navigating State Medical Licensure.

[^ 4] See Physician Licensure Application Fees and Timelines by State.

[^ 5] See the Federation of State Medical Boards website.

[^ 6] See Matter of Wing’s Tea House (PDF), 16 I&N Dec. 158 (BIA 1977). See 20 CFR 656.17(h). See 20 CFR 656.10(c)(7).

[^ 7] See INA 203(b)(2)(B)(ii). See 8 CFR 204.12.

[^ 8] See INA 203(b)(2)(B)(ii)(I).

[^ 9] See Section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (PDF), 113 Stat. 1312, 1318 (November 12, 1999), codified at INA 203(b)(2)(B). Before this law, a qualified physician could obtain a discretionary waiver of the labor certification process by showing that his or her admission or adjustment to permanent residence would be in the national interest of the United States under the same standard as for all other occupations.

[^ 10] See INA 203(b)(2)(B)(ii)(I).

[^ 11] See INA 203(b)(2)(B)(ii)(II) and INA 203(b)(2)(B)(ii)(IV).

[^ 12] See 65 FR 53889 (PDF) (Sep. 6, 2000) (implementing regulations for physician NIW at 8 CFR 204.12 and 8 CFR 245.18).

[^ 13] See Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006).

[^ 14] The court specifically reviewed the statutory language in INA 203(b)(2)(B).

[^ 15] See Schneider v. Chertoff, 450 F.3d 944, 959 (9th Cir. 2006). See Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016).

[^ 16] Or 3 years (not counting any time in J-1 status but including such time that may have preceded the petition filing), if the petition was filed before November 1, 1998.

[^ 17] See 8 CFR 204.12.

[^ 18] See INA 214(l).

[^ 19] See 8 CFR 204.12(a)(2)(i). See 65 FR 53889 (PDF), 53890 (September 6, 2000).

[^ 20] See INA 203(b)(2)(B)(ii). See Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016).

[^ 21] See Section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (PDF), 113 Stat. 1312, 1318 (November 12, 1999), codified at INA 203(b)(2)(B).

[^ 22] See the HHS Health Resources and Services Administration website to determine if a geographic area is a MUA or MUP. See the HHS Centers for Medicare and Medicaid Services website to determine if a geographic area is an HPSA.

[^ 23] If a physician’s adjustment application was denied and the petition’s approval revoked on or after September 6, 2000, but before January 23, 2007, solely because the physician did not complete the 3 or 5 years of medical service within the 4- or 6-year time limit, USCIS allowed such applicants to file, with appropriate fees, a motion to reopen the petition or adjustment application or both within 1 year of January 23, 2007. The January 23, 2007, date derives from the memorandum Interim guidance for adjudication national interest waiver (NIW) petitions and related adjustment applications for physicians serving in medically underserved areas in light of Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006) (“Schneider decision”), HQ 70/6.2, issued January 23, 2007.

[^ 24] For a complete list and detailed explanation of this supplemental evidence, see 8 CFR 204.12(c).

[^ 25] See 8 CFR 204.12(c)(1).

[^ 26] See 8 CFR 204.12(c)(3).

[^ 27] See 8 CFR 204.5(k)(1)-(3).

[^ 28] See INA 214(l).

[^ 29] See 8 CFR 204.12(g).

[^ 30] See INA 212(a)(5)(B).

[^ 31] Previously, the Visa Qualifying Examination (which was administered from 1977 through 1984) and the Comprehensive Foreign Medical Graduate Examination in the Medical Sciences (which was administered from 1984 through 1993) were also considered equivalent examinations.

[^ 32] For information regarding this certification, see the ECFMG website.

[^ 33] See INA 212(a)(5)(B).

[^ 34] See 8 CFR 204.12(c)(4).

[^ 35] See INA 212(a)(5)(B).

[^ 36] See 8 CFR 204.12(f).