Physician Immigration to the United States: PERM Labor Certification and the Physician National Interest Waiver

A. Petition Supported by PERM Labor Certification

Meeting the Minimum Requirements for the Position

For a physician petition supported by PERM, USCIS determines whether the physician met the minimum education, training, and experience requirements of the permanent labor certification as of the date of its filing with DOL. Even if the PERM does not specify that a license is required, physicians involved in patient care must have a permanent license to practice medicine in the state of intended employment under state or territorial law.

The permanent job offer is considered to have been made as of the PERM filing date. Therefore, at that date, the physician must either possess a permanent (full and unrestricted) license to practice medicine in the area of intended employment, or have met all requirements to be eligible for such a license (excluding requirements that are contingent upon US immigration status, such as a requirement for LPR status or an SSN).

Two Pathways to State Licensure

Each US state has its own medical board that sets licensure requirements. Two general pathways exist:

• Initial applicant: For medical school graduates who have never held a permanent US license. Must show the requisite medical degree, post-graduate training, residency, and board certifications, and have passed the required medical examinations (typically the USMLE).
• Endorsement applicant: For physicians seeking licensure based on a license held in another US state or territory. Involves verification of the prior license's standing and review of the physician's education, training, and exam history against the new state's requirements. No state offers automatic reciprocity — every state requires a formal application.

Approximately 75% of US states require foreign medical school graduates to complete additional post-graduate training beyond what is required of US graduates. Some states impose time limits on USMLE validity (the number of attempts or years within which results remain valid). Officers can consult the Federation of State Medical Boards for state-specific requirements.

Foreign Medical Degree Equivalency

The US requires a bachelor's degree for medical school admission — making a US medical degree an advanced degree. Many foreign countries admit students directly from high school, resulting in longer programs (5–7 years). A foreign medical degree may qualify as equivalent to a US medical degree for EB-2 purposes if, at the PERM filing date, one of three conditions and one additional condition are met:

One of these three conditions:

• The foreign degree was earned from a medical school that requires applicants to hold a degree equivalent to a US bachelor's degree for admission;
• A foreign education credential evaluation credibly demonstrates the degree is equivalent to a US medical degree; or
• The physician has passed the NBMEE (or USMLE Steps 1, 2, and 3) or an equivalent examination.

Plus: The beneficiary was fully eligible for the position on the PERM filing date — either holding a full unrestricted license to practice medicine in the intended state, or meeting all requirements to be eligible for such a license.

B. Physician National Interest Waiver

Purpose and Legal Authority

The Nursing Relief for Disadvantaged Areas Act of 1999 amended the INA to create a physician-specific NIW of the permanent labor certification process. This statutory waiver — distinct from the general Dhanasar-framework NIW available to all EB-2 petitioners — provides an automatic waiver for physicians who meet two conditions:

1. The physician agrees to work full time as a physician in a US Health and Human Services (HHS)-designated shortage area or at a VA health care facility; and
2. A federal agency or state department of public health has determined that the physician's work in the area or at the facility is in the public interest.

The physician may not receive LPR status until completing an aggregate of 5 years of full-time clinical work in the shortage area or VA facility (3 years for petitions filed before November 1, 1998). Time served in J-1 status does not count toward this aggregate, but time served before the petition was filed does count.

What "Shortage Area" Means

HHS designates areas as underserved through several programs: Health Professional Shortage Areas (HPSAs), Medically Underserved Areas (MUAs), and Medically Underserved Populations (MUPs). As of January 23, 2007, USCIS accepts NIW petitions from both primary care and specialty physicians who agree to work in HHS-designated shortage areas. Physicians serving at VA facilities are not limited to shortage area designations — VA facilities qualify regardless of location, and the VA may petition for physicians in various specialties.

The shortage designation must be valid when the physician's NIW employment begins. If the area loses its designation after the physician starts, the already-accrued time and ongoing employment still count as NIW service as long as all other requirements continue to be met.

Eligibility Requirements

• A petition filed under INA §203(b)(2) (EB-2 advanced degree or exceptional ability), along with the physician NIW request;
• An agreement to work full time in clinical practice (primary or specialty) providing care in an underserved area or at a VA facility for an aggregate of 5 years (or 3 years for petitions filed before November 1, 1998); and
• A public interest letter from a federal agency or state department of public health with jurisdiction over the medically underserved area, attesting the physician's work is or will be in the public interest.

Required Documentation

• Employment contract or commitment letter covering the required period of clinical practice. For work not yet started, the contract must be issued and dated within 6 months before the petition filing date. For work already started or completed, no 6-month limit applies.
• Public interest letter from the federal agency or state department of public health. Same 6-month timing rule as above for future work.
• Evidence of the physician's general EB-2 eligibility (advanced degree or exceptional ability evidence, other than PERM).
• Admissibility requirements: Evidence of passing Parts I and II of the NBMEE (or USMLE or equivalent) and evidence of English language competency (ECFMG certification showing passage of the English proficiency test satisfies this).

No Fixed Timeframe to Complete Service

Post-Schneider v. Chertoff (9th Cir. 2006), there is no set time limit within which the 3 or 5 years of service must be completed. Medical practice completed before the petition filing (except time in J-1 status) counts toward the aggregate. However, USCIS may as a matter of discretion deny adjustment of status if the physician appears to be using the pending adjustment solely as a mechanism for employment in areas other than the required shortage area practice.

Changing Shortage Areas

A physician with an approved petition and pending adjustment may practice in a different underserved area or a different VA facility. The physician must follow USCIS procedures, including filing an amended petition, to request such a change of practice location.