USCIS Clarifies that Physicians in Specialty Areas are Eligible for NIWs

Introduction: Certain Medical Specialists Eligible for National Interest Waivers

On March 9, 2016, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (see PM-602-0129) making the Administrative Appeals Office's (AAO's) decision in the Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016) an adopted decision. The USCIC's guidance makes the AAO decision binding on all USCIS employees.

The AAO's decision in the Matter of H-V-P- clarifies that medical specialists who agree to practice in an area designated by the Secretary of Health and Human Services as having a shortage of medical professionals may be eligible for the physician national interest waiver found in section 203(b)(2)(B)(ii) of the Immigration and Nationality Act (INA). The significance of the decision is that the current HHS designations of a medical shortage area are “ostensibly limited to only primary care physicians,” thus calling into question whether a medical specialist can qualify for a National Interest Waiver. The AAO rendered its decision based on the fact that the plain language of the provision providing for National Interest Waivers for physicians does not distinguish between primary care physicians and medical specialists.

In this article, we will examine the background of the case and the effect of the USCIS's decision to adopt the AAO decision as general policy guidance.

Relevant Statutory and Regulatory Provisions

Section 203(b)(2) allows for the allocation of immigrant visas to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent.” In general, the EB2 category requires that the applicant have a qualifying job offer. However, section 203(b)(2)(B)(ii) provides that , under certain circumstances, a physician applying for EB2 classification may be able to obtain a “national interest waiver” of the job offer requirement. In order to obtain a national interest waiver as a physician, the applicant must meet the following requirements (paraphrased):

aa. Agree to work full time as a physician in an area or areas designated by the Secretary of HHS as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
bb. 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.

In USCIS regulations implementing the applicable statutes, 8 C.F.R. 204.12(c) states that a petitioner for a physician National Interest Waiver must submit documentation showing that he or she will serve “[i]n a geographical area or areas designated by the Secretary of HHS as having a shortage of healthcare professionals and in a medical specialty that is within the scope of the Secretary's designation for the geographical area or areas.”

In the preamble to the regulations implementing the rules for physician National Interest Waivers, the then-Immigration and Nationality Service (INS) took the position that the waivers would be limited to primary care physicians, notwithstanding that the language of the statute only specified “physicians” [see 65 FR 53889, 53890 (Sept. 6, 2000)]. In 2006, the Ninth Circuit struck down parts of the regulations regarding physician National Interest Waivers in Schneider v. Chertoff, 450 F.3d 944, 959-60 (9th Cir. 2006) [PDF version], but it did not t address the requirement under 8 C.F.R. 204.12(c) that the physicians service must be within the scope of the HHS designation (which was limited to primary care providers). In response to Schneider v. Chertoff, the USCIS issued a Policy Memorandum (henceforth “Schneider Memorandum”) [PDF version] that stated that the USCIS would begin accepting physician National Interest Waiver petitions for physicians who provide specialty care as well as primary care.¹ However, the Memorandum did not explicitly explain whether a specialty care physician could qualify for a physician National Interest Waiver if the HHS designation upon which he or she relies is based only on numbers of primary care physicians.

Facts and Procedural History

The Petitioner filed a Form I-140, Immigrant Petition for Alien Worker, seeking an immigrant visa under section 203(b)(2)(A) of the Immigration and Nationality Act (INA) as a member of the professions holding an advanced degree [see article], and accompanied it with a request for a national interest waiver under section 203(b)(2)(B)(ii) [see article].

To support his application for a National Interest Waiver under section 203(b)(2)(B)(ii), the Petitioner submitted the following evidence:

A letter from the Illinois Department of Public Health stating that the Petitioner's services are in the public interest;
Documentation indicating that the HHS designated the medical practice location as a Health Professional Shortage Area (HPSA) and a Medically Underserved Area/Population (MUA/P).

The USCIS District Director adjudicating the application issued the petitioner a notice of intent to deny the Form I-140. The notice was based on the Petitioner's current field of practice (hematology-oncology) being a specialty practice area. The District Director took the position that only primary care physicians are eligible for a physician National Interest Waiver based on service in an HPSA or a MUA/P. The District Director held that the HHS designations of the Petitioner's practice site as an HPSA and MUA/P related to a lack of primary medical care providers and not to specialist physicians. Rather, only the HHS's Physician Scarcity Areas (PSAs) encompassed both primary and specialty care. The Director based the notice of intent to deny (NOID) on 8 C.F.R. 204.12(a)(2) and the Schneider Memorandum.

The Petitioner responded to the NOID by arguing that the Schneider Memorandum does not preclude a specialty care provider from qualifying for a physician National Interest Waiver for work in an area designated as an HPSA and MUA/P. The Petitioner noted that the HHS no longer updates shortage designation information for PSAs.

The District Director ultimately denied the petitioner because the physician's service as a hematologist-oncologist in an area designated as an HPSA and MUA/P did not qualify him for a physician National Interest Waiver. For the same reasons as stated in the NOID, the District Director held that because the HPSA and MUA/P classifications only refer to primary care physicians, practice in a medical specialty is not within the scope of the designation under 8 C.F.R. 204.12(a)(2) and under the Schneider Memorandum.

On appeal to the AAO, the Petitioner argued that the District Director's decision was/is contrary to the statute as well as to the Schneider Memorandum. The Petitioner submitted a letter from the Illinois Department of Public Health, which took the position that the HPSA designation system “is the most reliable and accurate system for measuring shortages of physicians, both primary and specialty care…”

Analysis and Decision

The AAO was tasked with deciding an immigration issue that relied upon classifications from the HHS, which were not created for the purpose of immigration law.

First, the AAO noted that the plain language of section 203(b)(2)(B)(ii) of the INA relates to “any alien physician” and does not distinguish by medical practice area. The AAO found that the purpose of the statute was to improve access to medical care in areas designated as underserved by the HHS.

The AAO then addressed the regulatory provision in 8 C.F.R. 204.12(a)(2)(i), which requires that the physician's medical specialty falls within the scope of the HHS designation in order to qualify for a physician National Interest Waiver. The AAO noted that the HHS “does not single out specialty areas of medical practice in its HPSA and MUA/P designations.” Rather, these two designations relate only to primary care. The AAO recognized that the HHS did previously recognize shortages in specialty care providers as well with its designation of PSAs. However, the PSA program sunset in 2008, and there is accordingly no longer a classification that relates to specialty care providers as well as primary care providers.

The AAO held that to read the regulation in 8 C.F.R. 204.12(a)(2)(i) as preventing a specialty care provider from procuring a National Interest Waiver to serve in an area designated as an HPSA or MUA/P would “effectively [bar] all specialist physicians from ever receiving a [National Interest Waiver], no matter how urgently their services may be needed.” The Board found that this interpretation of the regulations would “frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas.” To this effect, let us recall that the statute itself makes no distinction between “primary” and “specialty” care physicians.

Additionally, the AAO recognized “persuasive” arguments submitted by the petitioner that the HPSA and MUA/P designations do not necessarily pertain only to primary care physicians. The AAO found that, while the designations do ostensibly only take into account shortages in primary care physicians, this is “reportedly due to the difficulty of incorporating an analysis that includes the availability of physicians practicing in a large number of specialties.” The AAO found the letter submitted on the Petitioner's behalf by the Illinois Department of Public Health, which stated that the HPSA designation is the best way to measure shortages of both primary and specialty care physicians, to be persuasive.

Finally, the AAO noted that the Schneider Memorandum was written when the PSA designation was in effect, and it specifically cited the PSA designation in its policy-making. However, quoting from the Schneider Memorandum, the AAO stated that the statute “requires USCIS to recognize HHS designations of health professionals without limitation to primary care.” Thus, the AAO found that the District Director erred in relying upon the Schneider Memorandum's reference to the PSA designation in finding that a specialty care physician is not eligible for a National Interest Waiver to serve in a HPSA and MUA/P.

For the reasons discussed above, the AAO held that the Petitioner satisfied the requirements for qualifying for a National Interest Waiver. Accordingly, the AAO withdrew the decision of the District Director and approved the petition.

Conclusion

The Matter of H-V-P, Adopted Decision 2016-01 (AAO Feb. 9, 2016), brings up many interesting issues in immigration law.

First, the decision highlights the disconnect that can occur when a provision of immigration law relies upon classifications or policies from a different federal agency. In this case, the physician National Interest Waiver relies in part upon designations made by the HHS that are not explicitly or even primarily made for immigration purposes. Therefore, it is left to immigration adjudicators to apply the relevant immigration statutes in light of this disconnect.

Second, the Schneider Memorandum that was discussed often in the decision was written when the HHS had the additional PSA designation, which took into account both primary and specialty care physicians. The District Director had rendered a decision having read the Memorandum in conjunction with 8 C.F.R. 204.12(a)(2)(i) as only allowing a specialty care physician to qualify for a National Interest Waiver to serve in an area that had a designation from the HHS that explicitly took shortages of specialty care physicians into account. In disagreeing, the AAO relied upon the language and purpose of the statute as well as the general principle in the Schneider Memorandum in interpreting the policy guidance that relied on a now-defunct HHS program.

Going forward, the clarified USCIS policy will ensure that specialty care physicians will continue to be able to qualify for physician National Interest Waivers. Although the current HHS classifications of medical shortage areas pertain specifically to numbers of primary care physicians, the USCIS will adjudicate petitions without prejudice to a physician's medical practice area. A physician seeking EB2 status in the United States should consult with an experienced immigration attorney both before filing a petition and throughout the entire petitioning process.

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1. See Memorandum from Michael Aytes, Associate Director, Domestic Operations, USCIS, HQ 70/6.2, Interim guidance for adjudicating national interest waiver (NIW) petitions and related adjustment applications for physicians serving in medically underserved areas in light of Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006) (“Schneider decision”) 2 (Jan. 23, 2007)