Chapter 16 National Interest Waivers for Physicians

• Jurisdiction: United States

Another category that physicians commonly use to file for permanent residency is the Physician National Interest Waiver (PNIW). Like PERM, discussed in Chapter 15, the PNIW is in the EB-2 preference category, which presents challenges for individuals from countries backlogged in the EB-2 category (currently nationals of India and China).

What is the PNIW?

The PNIW provides a path to permanent residency for physicians who work five years in a federally designated shortage area or a veteran’s hospital. Like the J-1 waiver for physicians going to shortage areas, a federal agency or department of public health in any state must find the physician’s employment to be in the public interest. Permanent residency applications may not be approved in the PNIW category until the physician has finished the five-year service commitment.

U.S. Congress created the PNIW category in 1999.[1] For the first few years after the law was passed, no cases were approved because U.S. Citizenship and Immigration Services (USCIS) had not issued regulations. A lawsuit forced the agency to issue regulations permitting filings. However, a number of restrictions were placed in the regulations that were never mentioned in the law passed by Congress, so the category remained largely under-utilized.

Following a second lawsuit in 2006, the U.S. Court of Appeals for the Ninth Circuit ruled in Schneider v. Chertoff[2] that several sections of the PNIW regulations were illegal. USCIS then issued new regulations in 2007 that largely addressed the issues in the lawsuit. The category has been much more widely used in the years since.

What types of shortage areas qualify for the PNIW?

USCIS regulations state that PNIW work must be in a Department of Health and Human Services (HHS)–designated Medically Underserved Area or with a Medically Underserved Population (MUA/MUP), a Primary Medical Health Professional Shortage Area (HPSA), a Mental Health Professional Shortage Area (MHPSA), or a Department of Veterans Affairs (VA) facility. The regulations also permit filings in a “medical specialty that is within the scope of the [HHS] Secretary’s designation for the geographical area or areas.” This language refers to Physician Scarcity Areas, a designation that no longer exists.

Does the position need to be full-time?

Yes. The PNIW statute requires a physician’s work be full-time if it is the basis for the application. “Full-time” is defined in USCIS regulations as 40 hours per week. This raises the practical question for physicians in positions that are not necessarily 40 hours per week, but average 40 hours or more.

For example, a physician working in a hospital may work seven days on and seven days off. USCIS has, as a general matter, approved petitions in such cases if a physician’s contract states that the position will average at least 40 hours per week (or 160 hours per month). However, the agency has never issued any guidance on what full-time actually means.

Does the work need to be clinical or will other types of physician positions qualify?

USCIS regulations require that the work be full-time in a “clinical medical practice.” Neither the regulations nor the statute speaks to time devoted to non-clinical duties (such as a mixed research and clinical position or a position that involves administrative duties), but a safe assumption would be that the physician will need to actually be treating patients an average of 40 hours per week.

Are there “flex” slots in the PNIW category?

No. Unlike J-1 waivers where up to 10 of a state’s Conrad 30 waiver slots can be used by physicians working outside of designated shortage areas (if treating patients traveling from shortage areas), there is no such exception in the PNIW rules.

Are there limits on the number of PNIWs a state can file each year?

...