HPSA

The National Interest Waiver EB-2 immigration option provided initially under the Immigration Act of 1990 (IMMACT90) is a valuable immigration option for foreign national physicians seeking lawful permanent residence or “green card.” This option can be of particular value for physicians from India and China due to extended delays in obtaining permanent residence otherwise. The basic premise is that by serving in an underserved area, the physician’s service warrants waiver of the typical labor certification process.

The basic requirements are that a primary care physician or specialist (see USCIS Interoffice Memorandum, Michael Aytes, January 23, 2007, http://www.uscis.gov/files/pressrelease/SchneiderIntrm012307.pdf, “Schneider Memo”) must serve full time for five years “in aggregate” in a federally-designated MUA (medically underserved area), HPSA (health professional shortage area), MHPSA (mental health professional shortage area), or at a Veteran’s facility; additionally, the state department of health or federal agency must provide a letter acknowledging the critical nature of the physician’s service. 8 C.F.R. 204.12, 245.18. Case law provides for aggregating of the physicians service in the underserved area, pursuant to Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006). But remember: the approved petitioner has numerous critical ongoing maintenance / compliance requirements to meet, such as periodic reporting, so as to maintain status.

There are numerous areas and populations in the U.S. that are under-served by physicians. Forecasters predict that this situation will only worsen in the coming years, largely due to the triple threat of demographics (aging boomers), healthcare reform, and reimbursement policy changes.

An ideal means of providing physicians to cover the underserved is through the various immigration programs that enable foreign national medical residents to immigrate to the U.S. Each and every foreign medical resident in the U.S. for graduate medical education (GME) or training on a J-1 exchange visitor visa is subject to the two-year home residency rule or “two year rule.” See INA 212(e), 212(e)(iii). The rule requires foreign national medical residents to return to their home country for two years before coming back to the U.S. This requirement can present an earth-shattering obstacle to these medical residents who may have put down roots and developed romantic and business relationships that call for them to stay here.

Federal interested governmental agency (IGA) programs are one of the win-win immigration programs that enable foreign national medical residents to immigrate by having these physicians serve the underserved, typically for a minimum of three years before applying for permanent residency. A full listing of IGAs can be accessed in The United States Government Manual at: www.gpoaccess.gov/gmanual/browse-gm-06.html.

The IGA’s role is to recommend to the U.S. Department of State (DOS) that the two year rule be waived for a particular foreign national medical resident. After analyzing the recommendation as to policy and program and assuming concurrence, the DOS seconds its approval to USCIS – the final decision-maker in the process. See INA 212(e). The specifications vary greatly by program, and several of the more well-known IGA programs include:

Department of Veterans Affairs (VA) – see www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1219

Department of Health and Human Services (HHS) – see www.globalhealth.gov/exchangevisitorprogram/index.html (Supplement B – Clinical Care)

Appalachian Regional Commission (ARC) – see www.arc.gov/index.do?nodeId=24

Delta Regional Authority (DRA) – see www.dra.gov/programs/doctors/

National Interest Waivers: a physician EB-2 self-petition immigration option

Federal IGA waiver recommendations: Alphabet Soup.