[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, The Physician Immigration Handbook.]
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?
No. Unlike the Conrad 30 J-1 program, there are no limits on the number of PNIWs a qualified sponsoring agency can file each year.
What types of government agencies can sponsor a physician for a PNIW?
USCIS rules largely mirror the J-1 program. State and territory health departments and federal agencies can sponsor PNIWs. The actual language of the 1999 PNIW statute only speaks to sponsorship by a federal agency or a department of public health in any state. Individuals involved in the drafting of the law have complained that the law was intended to include local health departments in the states, but USCIS has ignored such complaints and the matter has never been challenged in the courts. Until that happens, letters must come from state-level health departments or federal agencies.
When does the five-year service requirement start?
In order for the PNIW to provide a path to permanent residency, the physician must work five years in a federally designated shortage area or a veteran’s hospital. The five-year requirement starts:
- Upon approval of the Form I-140, Immigrant Petition for Alien Worker, for the PNIW;
- Upon issuance of an employment authorization document if a physician needs one to begin working; or
- Upon the date a physician changed from J-1 nonimmigrant status to H-1B status if the physician received a waiver of the J-1 home-residency requirement based on a shortage-area waiver.
Can a physician get credit for work done in a shortage area before the application is filed?
Yes, as long as the work was not performed in J-1 status and as long as the sponsoring government agency credits the time in its PNIW support letter.
Does the five years of service need to be continuous?
Prior to the Schneider lawsuit mentioned above, USCIS required the five years of PNIW service be completed within a six-year period. The Schneider court ruled that the statute did not require this explicitly and USCIS revised its regulations to simply require that the physician document that he or she is making progress toward completion of the five-year service requirement. USCIS now requires that the physician submit evidence of progress toward completing the service requirement within 120 days of the second and sixth anniversaries of the I-140 approval.
USCIS will issue a request for evidence as part of a Form I-485, Application to Register Permanent Residence or Adjust Status, to collect documentation on this requirement. However, physicians from EB-2 backlogged countries cannot apply to adjust status, so these physicians will need to submit such documentation on their own during the time-frames noted above.
USCIS noted in a guidance memorandum issued after the Schneider decision that while there is no longer a requirement to complete the service requirement within six years:
“USCIS adjudicators … may deny an application for adjustment of status as a matter of discretion if the physician appears to be using the pending adjustment of status application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.”
So physicians still face a risk of denial if they are not working in shortage areas at least at the times when USCIS sends out its requests for demonstrating progress toward meeting the five-year service requirement.
Can a physician file for adjustment of status before the five-year service requirement is completed?
Yes, assuming the rest of the adjustment-of-status requirements can be met. This is an important benefit for many physicians who can file for adjustment of status and its related benefits (such as travel and work authorization) at the time the PNIW-based I-140 is filed.
One important exception to this rule is for physicians who are ineligible to adjust because an immigrant visa is not immediately available. Since the EB-2 category was created in 1990, only Indian and Chinese nationals have faced backlogs in the category; as of the time of writing this book, both nationalities continue to face EB-2 backlogs.
Can a physician change employers during the five-year period?
Yes. Physicians may change to a new employer or location and get credit toward the five-year period if the new employment is also in a qualifying shortage area and the physician files an I-140 (with fee) notifying USCIS of the change. The application must include proof that the work is full-time in a shortage area; there is a new contract (or statement in the case of self-employed physicians) binding the physician to work the required period left to satisfy the five-year requirement; and there is a new letter from a sponsoring government agency attesting that the new work is in the public interest. The physician will retain the priority date from the earlier filing.
Can physicians satisfying a three-year J-1 waiver service requirement file adjustment applications in PNIW cases?
For those satisfying a J-1 three-year service requirement, an adjustment application normally cannot be submitted until the service obligation is completed. PERM applications and I-140 petitions for these physicians can be submitted during the three-year period, but the adjustment application must wait. An exception is made for PNIW applicants as long as a visa is available to the physician in the EB-2 category (i.e., the doctor is not from a country with a backlog in the EB-2 category and is not lacking a current priority date).
Can specialists file for PNIWs?
Yes. Prior to the Schneider case, USCIS only approved cases for primary-care physicians. The actual 1999 law creating the PNIW category contained no such limitation, and after USCIS’s loss in the Schneider case, the agency began accepting petitions from specialists as well as primary-care physicians. However, sponsoring federal and state health agencies are free to impose their own rules limiting applications to primary care.
What does an employment contract need to contain in order to satisfy PNIW requirements?
There are only a few requirements in USCIS’s immigration regulations regarding the PNIW:
- The agreement must be for full-time employment in a qualified shortage area.
- The agreement must be for five years. The five-year requirement for the contract has been the subject of controversy over the years. USCIS requires a five-year contract dated within six months of filing the I-140 application; however, the statute clearly contemplates physicians getting credit for time spent in an underserved area (with the exception of time spent on a J-1 visa). USCIS is generally satisfied if the contract has a five-year term even if the start date of the contract is a date in the past (and the date of execution of the agreement is less than six months in the past). A five-year term from the current date is another option and the employer and physician can choose to allow either party to terminate the contract at will in order to provide flexibility.
- The contract also needs to commit the physician to work in an underserved area (so it should list the specific work location) and that the time spent working at a location or locations will be no less than 40 hours per week.
- As a matter of good practice, however, the location should list the HPSA or MUA/MUP identification number.
Can a physician self-petition in the PNIW category?
Yes. Either an employer or physician may be the signatory on an I-140 PNIW petition.
Can a physician be self-employed in the PNIW category?
Yes. For physicians establishing their own practices, USCIS will permit the physician to substitute a sworn statement for an employment contract. The statement must commit the physician to the full-time practice of clinical medicine for the required period and describe the steps the physician has taken or intends to take to establish the practice.
Can a physician use the same government agency letter for both the J-1 waiver and a PNIW?
Yes, as long as the letter is dated within 180 days of the filing of the I-140 petition and as long as the letter notes the sponsoring agency is supporting both the J-1 waiver and the PNIW.
What does the letter from the government agency need to say?
The letter must attest that the physician’s work is or will be in the public interest. For federal agencies, the letter must reflect the agency’s knowledge of the doctor’s qualifications and the agency’s background in making determinations on matters involving medical affairs in order to substantiate the finding that the doctor’s work is in the public interest. For state health departments (including U.S territories and the District of Columbia), the letter must show that the sponsoring agency has jurisdiction over the place where the doctor intends to practice clinical medicine. If the doctor intends to practice in locations in more than one state, separate attestation from each state must be included.
Can a state impose restrictions in addition to the federal PNIW requirements?
Yes, similar to J-1 waivers, sponsoring agencies can impose a range of additional requirements on PNIW applications. Examples include—
- Limiting waivers to doctors who received J-1 waivers;
- Liquidated damages contract requirements;
- Additional support letters;
- Additional restrictions on the types of qualifying shortage areas;
- Minimum service requirements in a shortage area before the filing of the NIW; and
- Limitations on the types of specialties permitted to apply.
Can an I-140 PNIW petition be premium processed?
As of the date of publication of this book, premium processing is NOT available in PNIW cases.
How does the physician notify USCIS that he or she has completed the service requirement and is eligible to adjust status?
USCIS regulations require a physician to prove final compliance no later than 120 days after completing the five-year service requirement. The physician must notify the USCIS service center with jurisdiction over the place of employment and provide evidence that the requirements are complete. These may include the following:
- Tax returns for the entire service period.
- Attestations from the employer or employers regarding the full-time medical service requirement being met and explanations for any breaks in employment other than routine breaks, such as paid vacations.
- For doctors who established their own practices, documentation that the practice was established, including incorporation documents, the business license, and tax documents.
- For physicians who moved locations and did not previously submit a public interest letter from a government agency signing off on the location, that letter must be included as well.
What are the advantages and disadvantages of applying for a PNIW versus a PERM petition?
For physicians not subject to EB-2 backlogs, the ability to file an adjustment-of-status application (and the accompanying employment and travel authorization application) at the time of submitting the PNIW I-140 petition can be helpful for spouses and children needing work authorization, and it may make travel easier for physicians who might face nonimmigrant visa consular delays because of administrative processing.
- PNIWs can be self-petitioned by physicians, whereas PERM petitions require an employment relationship without the physician holding an ownership interest in the practice.
- The PNIW physician may take longer to get to permanent residency because the physician cannot adjust until the five-year service requirement is met.
- The PNIW application does not require additional recruiting (unless a sponsoring agency adds such requirements).
- The PNIW can be transferred between employers.
- The physician can cover the costs of a PNIW petition, while the employer must cover PERM-related costs.
- For physicians facing the H-1B cap or the six-year time limit on the H-1B and who are not subject to EB-2 backlogs, the PNIW may allow a physician to work at an employer despite the H-1B limitations.
- PERM petitions can be submitted for any type of location and not just shortage areas.
- PERM petitions do not require the consent of a sponsoring government agency.
- PERM petitions do not actually require a physician to sign an employment agreement.
PERM petitions have a very high success rate as well as PNIWs because of the national physician shortage.
[1] Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. No. 106-95 (Nov. 12, 1999), available at https://www.govtrack.us/congress/bills/106/s455.
[2] Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006).
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.