Analysis of Physician NIW Regulation

On November 12, 1999, President Clinton signed a bill (H.R.441) passed by Congress which contained a broad grant of green cards via "national interest waivers" (NIWs) to physicians who agreed to serve five years in a federally-designated medically underserved area or in a Veterans Administration (VA) facility. The INS announced that it would refrain from deciding any of the NIWs filed with the agency until regulations were published in order not to deprive any physician of his or her rights. Nearly ten months later, on September 6, 2000, the INS issued "interim" regulations which take back much of what was granted by Congress. Apparently someone at the agency is a little confused about the doctrine of separation of powers. The Constitution provides that the Congress writes the law, and the Executive Branch (e.g., the INS) enforces the laws. In its regulations, the INS has effectively rewritten the law.

For example, the law applies to "any alien physician". However, the regulation attempts to restrict the law to the following areas of practice: family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry. Why? Because the Department of Health and Human Services (HHS) designated medically-underserved areas based on the ratio of primary care physicians to patients. Interesting insight, but it is completely at odds with the language of the law. If the law were not so crystal clear, one might point out physicians working for the VA are not required to work in underserved areas. Many of these VA physicians are specialists. Also, Congress allows states to sponsor specialists who work in underserved areas. Finally, in other sections of H.R.441, Congress uses HHS-designated underserved areas as a criteria for the location of hospitals who wish to sponsor registered nurses for temporary visas. Despite the absence of any ambiguity in the language of the law, or any legislative history supporting its position, the INS attempts to restrict the application of the law to primary care physicians.

The law also provides that one requirement of a physician being granted a National Interest Waiver by the INS is that "a Federal agency or a department of public health in any State has previously determined that the alien physician's work in such an area or at such facility was in the public interest." When the wording of the law was negotiated, the words "department of public health in any State" were used instead of "State department of public health" in order not to exclude municipal, county or regional bodies from the list of authorities permitted to determine whether the physician's work was in the public interest. The INS regulations rewrite the language of the law so that only a letter from a Federal agency or a State department of public health will be accepted to establish that the physician's work is in the public interest.

What about physicians who submitted NIWs prior to the law's enactment? The INS rules state that if the petition has been denied and the denial is final, the physician may not move to have his case reopened by the INS. Why not? Because the petition was not approvable on the date that it was filed with INS. However, if the petition is on appeal or is being litigated, the INS will support the petition being remanded to the appropriate INS service center for a new decision. If the petition is currently pending at an INS service center, the physician may submit additional evidence to demonstrate eligibility under the 1999 law. What is the rationale for treating physicians who appealed their denials differently from those who did not? The new rule does not provide an answer.

The law provides that a physician must work for the VA or in a medically underserved area for a minimum of five years (three years if the petition was filed before November 1, 1998 - Isn't this a clear indication that Congress intended to confer certain rights upon physicians who submitted their NIW petitions prior to the new law? Not according to the INS.) INS amends the law to create a maximum time period in which the physician must satisfy the three/five year requirement. The physician must satisfy the five-year requirement within six years of the approval of the NIW, and the three-year requirement within four years of the NIW approval. Again, the INS cites no statutory language or legislative history to justify its imposition of this new requirement.

The interim regulations establish a two-step process to document whether the physician is making satisfactory progress toward the five-year requirement. With 120 days after the two-year anniversary of the NIW approval, the physician must demonstrate that he has worked at least one year at the VA or in an underserved area. Presumably, someone at the service center will find the NIW petition and/or the application for adjustment of status and make sure that the physician is making satisfactory progress toward fulfilling the five-year statutory work requirement inside of the INS-created six-year maximum time period. After the physician completes the five-year requirement, he is again required to document this to the INS. The agency will then schedule him for a fingerprinting appointment and will require a medical examination.

What if a physician through no fault of his own is unable to complete his five-year work requirement within six years? The INS is cognizant of this possibility, and states that "the Service realizes that situations will arise that cause some physicians to have interruptions in their respective medical practice, such as job loss through no fault of their own and the ensuing search for new employment in an underserved area, pregnancy, or providing care to ill parents, children or other family members." Nevertheless, INS allows no exceptions to its self-created rule. If the physician fails to properly document his work at either of the two INS-designated stages, not only will his application for adjustment of status be denied, but his NIW petition will be revoked.

Despite all the bad news contained in the INS regulations, even this dark cloud has a silver lining. The rule provides that a physician may move from one underserved area to another as long as he submits a new NIW petition. If an underserved area loses its designation after the Service has approved an NIW petition for the physician, he is not required to move to another underserved area. Finally, the regulation permits the physician and his spouse and children to submit an application for adjustment of status and for Employment Authorization Documents and travel permits as soon as the NIW is approved and the physician's priority date is current.

Still confused? How do the new regulations apply to you? The transcript of our free online chat entitled "The New NIW Regulations For Physicians" which was held on September 11, 2000 will be online soon.

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