Written by Colleen F. Molner, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
Physicians have several different pathways to legal permanent residency in the U.S. Many factors should be considered when determining which strategy is most advantageous for each physician.
While certain physicians are eligible to apply for a green card through the EB-1 preference category, physicians generally fall into the EB-2 preference category, which is for advanced degree professionals and foreign nationals of exceptional ability. Applying for a green card is usually a three-step process requiring a job offer and a labor certification:
- Step 1: Labor Certification through the Department of Labor (referred to as the PERM Labor Certification)
- Step 2: The filing of an I-140 Immigrant Visa Petition with USCIS
- Step 3: The foreign national and applicable family members file the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, if a green card is available
A green card process that requires these three steps can be lengthy, with current estimates of two to three years from start to completion, which can oftentimes extend longer depending on the circumstances.
However, certain physicians are eligible to skip the PERM Labor Certification, which is typically the longest and most costly part of the green card process. Physicians can bypass the PERM Labor Certification step by applying for a Physician National Interest Waiver (PNIW) if the physician agrees to work (or has worked) for five years in a designated underserved area. The PERM Labor Certification is waived in these cases because the physician’s service is in the national interest of the United States (hence, “national interest waiver”).
A PNIW can be an advantageous strategy for these reasons, but also because it can generally secure a Priority Date more quickly through the PNIW process, particularly with the current lengthy processing times by the Department of Labor in the PERM Labor Certification process.
Below is further information and a comparison of the PERM process vs. the Physician National Interest Waiver (PNIW).
1. What agencies are involved?
PERM Labor Certification: The Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS).
Physician NIW: The North Carolina Office of Rural Health (NCORH), or equivalent state agency, and U.S. Citizenship and Immigration Services (USCIS).
2. Is a Labor Market Test required?
PERM Labor Certification: Yes. The sponsoring employer must conduct recruitment and confirm that there are no able, willing, available, qualified U.S. workers for the job (Includes a job order, Sunday newspaper advertisements and three additional recruitment methods).
Physician NIW: No
3. Does the physician need to work in a Health Professional Shortage Area (HPSA)?
PERM Labor Certification: No
Physician NIW: Yes. In certain cases, it can be a Medically Underserved Area (MUA).
4. Can specialist physicians apply?
PERM Labor Certification: Yes
Physician NIW: Yes, if the worksite has a shortage of such specialists.
5. Is premium processing service available at the I-140 stage?
PERM Labor Certification: Yes
Physician NIW: Yes
6. What are the steps involved?
PERM Labor Certification: Prevailing Wage Determination issued by the Department of Labor (DOL); Labor Market Test; 30-day Quiet Period after last day of recruitment; Filing ETA 9089 with the DOL; Decision (certification, audit, denial). Employer is eligible to file the I-140 Immigrant Visa Petition after receiving ETA-9089 Certification (valid for six months).
Physician NIW: Filing an application with the NCORH (or equivalent state/regional agency); upon recommendation from the NCORH (or equivalent state/regional agency), filing an I-140 Immigrant Visa Petition with the USCIS; Decision (approval, RFE, denial).
7. Is an employment agreement required to be submitted?
PERM Labor Certification: No
Physician NIW: Yes, in which the physician must agree to work in an HPSA for 40 hours/week providing direct patient care for five years.
8. When do I get my priority date?
PERM Labor Certification: The date that the PERM ETA 9089 is filed with the DOL.
Physician NIW: The date the I-140 petition is filed with the USCIS.
9. Can the physician retain a previously approved priority date?
PERM Labor Certification: Yes. The sponsoring employer can request USCIS to retain the PD at the I-140 stage.
Physician NIW: Yes. The sponsoring employer can request USCIS to retain the PD at the I-140 stage.
10. How long does the process take?
PERM Labor Certification: Approximately 1.5 to 2.5 years from start of PERM process to DOL decision and approximately 2-6 months for I-140 decision.
Physician NIW: Approximately 3-10 months from start of process to I-140 decision.
11. Is there a wage requirement?
PERM Labor Certification: Yes, determined by the DOL during the initial stages of the process. Wage is determined by the type of job, conditions and minimum requirements of the job, and the worksite.
Physician NIW: No
12. When is the physician eligible to start the process?
PERM Labor Certification: Any time as agreed upon by the sponsoring employer.
Physician NIW: North Carolina Office of Rural Health and Community (NCORH) requires one year of service under the J-1 waiver/H-1B, if the physician is J-1 waiver recipient, before filing the PNIW. Each state/regional agency has varying requirements.
13. Are there monitoring and reporting requirements involved?
PERM Labor Certification: No
Physician NIW: Yes. The North Carolina Office of Rural Health and Community (NCORH) conducts periodic monitoring. The physician and sponsoring employer are responsible for submitting a statement of service form to the NCORH each year. Each state/regional agency has varying reporting requirements.
14. Can I change worksites after filing?
PERM Labor Certification: Generally, yes, without impact to the process, provided it is in the same MSA as the worksite on the PERM, which would otherwise require the employer to restart the PERM process.
Physician NIW: Generally, yes, however, it must be in an Health Professional Shortage Area (HPSA) and NCORH (or the applicable state agency) must also be notified in writing at least 30 days in advance of the change (note: an amended I-140 petition may also be recommended).
15. When is the physician eligible to file an adjustment of status application?
PERM Labor Certification: When the physician’s priority date is current.
Physician NIW: When the physician’s priority date is current. USCIS will not adjudicate/issue the green card until the physician has proven that they have also completed their five years of service under the PNIW (proof required: W-2s, verification letters, tax returns, pay stubs, etc., showing employer, dates, worksite).
16. Who must pay the fees?
PERM Labor Certification: The law requires the sponsoring employer to pay all costs associated with the PERM; the physician may pay for costs involved in the I-140/AOS steps after PERM certification.
Physician NIW: There is no requirement. Either the physician beneficiary or the sponsoring employer.
17. What are the advantages?
PERM Labor Certification: Does not require a 5-year commitment; worksite does not need to be an HPSA.
Physician NIW: More cost-effective; likely to receive priority date quicker; less administrative burdens and costs in the process; no risk of a failed labor market test (LMT) and generally no recruitment documentation required.
18. What are the risks?
PERM Labor Certification: More time consuming; if an able, willing, available, qualified U.S. worker is found, the labor market test fails and must restart the process.
Physician NIW: Requires both parties to commit to five years of service at the worksite.
Further reading
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