A Quick Look at Immigrant Physicians By Joseph P. Whalen (March 19, 2012)There are two specific immigrant visa classifications for immigrant physicians thatI am aware of. One is the single occupation eligible for a National Interest Waiver(NIW) that Congress carved out from EB-2 professionals holding advanceddegrees after AAO issued Matter of New York State Dept. of Transportation, 22I&N Dec. 215 (Commr. 1998) (hereinafter "NYSDOT") in which AAO determinedthat it would be the position of INS (now U.S. Citizenship and ImmigrationServices (USCIS)) to grant national interest waivers on a case-by-case basis, ratherthan to establish blanket waivers for entire fields of specialization. See NYSDOT at2 17. This single NIW occupational field is no cake-walk, it comes with specificobligations and a long, complex, drawn-out process.The other possibility is virtually obsolete. It is a fourth preference SpecialImmigrant described in the following section of the Immigration and NationalityAct (INA).INA § 101 [8 U.S. C. § 1101] Definitions.(a) As used in this Act- * * * * * (27) The term "special immigrant" means- * * * * * (H) an immigrant, and his accompanying spouse and children, who- (i) has graduated from a medical school or has qualified to practice medicine in a foreign state, (ii) was fully and permanently licensed to practice medicine in a State on January 9, 19781, and was practicing medicine in a State on that date,1 It is noted that the Iranian Revolution began around October 1977, and intensified in January 1978. Many Iranianssought visas in the U.S. to escape the rising tide of violence, hence immigration fraud sky-rocketed and that seemedto be the reason for that cut-off date. Iran under the rule of Shah Mohammad Reza Pahlavi was a friendly tradingpartner of the U.S. but things changed rapidly when Ayatollah Ruhollah Khomeini, the leader of the revolution,came to power. The Shah left Iran for exile in mid-January 1979.
(iii) entered the United States as a nonimmigrant under subsection (a)(15)(H) or (a)(15)(J) before January 10, 1978, and (iv) has been continuously present in the United States in the practice or study of medicine since the date of such entry;INA § 203 [8 U.S.C. § 1153] Allocation of Immigrant Visas * * * * *(b) Preference Allocation for Employment-Based Immigrants. - Aliens subject tothe worldwide level specified in section 201(d) for employment-based immigrantsin a fiscal year shall be allotted visas as follows: * * * * * (2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. - * * * * * (B) * * * * * (ii) (I) The Secretary of Homeland Security shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if-- (aa) the alien 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 (bb) a Federal agency or a department of public health in any State has previously determined that the alien physicians work in such an area or at such facility was in the public interest.
(II) No permanent resident visa may be issued to an alienphysician described in subclause (I) by the Secretary ofState under section 204(b) , and the Secretary ofHomeland Security may not adjust the status of such analien physician from that of a nonimmigrant alien to thatof a permanent resident alien under section 245 , untilsuch time as the alien has worked full time as aphysician for an aggregate of 5 years (not includingthe time served in the status of an alien described insection 101(a)(15)(J)), in an area or areas designated bythe Secretary of Health and Human Services as having ashortage of health care professionals or at a health carefacility under the jurisdiction of the Secretary of VeteransAffairs.(III) Nothing in this subparagraph may be construedto prevent the filing of a petition with the Secretary ofHomeland Security for classification under section204(a) , or the filing of an application for adjustment ofstatus under section 245, by an alien physician describedin subclause (I) prior to the date by which such alienphysician has completed the service described insubclause (II).(IV) The requirements of this subsection do not affectwaivers on behalf of alien physicians approved undersection 203(b)(2)(B) before the enactment date of thissubsection. In the case of a physician for whom anapplication for a waiver was filed under section203(b)(2)(B) prior to November 1, 1998, the Secretary ofHomeland Security shall grant a national interest waiverpursuant to section 203(b)(2)(B) except that the alien isrequired to have worked full time as a physician for anaggregate of 3 years (not including time served in thestatus of an alien described in section 101(a)(15)(J) )before a visa can be issued to the alien under section204(b) or the status of the alien is adjusted to permanentresident under section 245. * * * * *
(4) Certain special immigrants. - Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified special immigrants described in section 101(a)(27) (other than those described in subparagraph (A) or (B) thereof), of which not more than 5,000 may be made available in any fiscal year to special immigrants described in subclause (II) or (III) of section 101(a)(27)(C)(ii) , and not more than 100 may be made available in any fiscal year to special immigrants, excluding spouses and children, who are described in section 101(a)(27)(M) .The vast majority of employment-based immigrant physicians utilize the EB-2Physician specific NIW. Immigrant physicians are not limited to only that categorybut it was designed specifically for the majority of them. Very well-renownedindividuals might immigrate via EB-1A as an alien of extraordinary ability; or EB-1B as an outstanding professor and researcher; as EB-2 members of the professionsholding advanced degrees or aliens of exceptional ability with either a regular NIWor with a labor certification; or another immigrant pathway including as a relative,diversity “lottery winner”, asylee, or refugee.