USCIS Says Specialist Doctors Entitled to EB-2 National Interest Waivers

USCIS has now officially adopted the reasoning of the AAO and is instructing its adjudicators to give NIWs to otherwise qualified medical specialists, as well as to primary care physicians.

USCIS has confirmed that physicians whose practice is in a medical specialty, as well as primary care physicians, are entitled to a “national interest waiver” (NIW) of the job offer and labor certification otherwise required for permanent residence in the EB-2 category, as long as they meet the other requirements for the waiver.

The inclusion of medical specialists had been USCIS policy for years, even though regulations implementing the Immigration and Nationality Act (I.N.A.) require the medical specialty to be in a certain geographic area and “within the scope of the Secretary [of Health and Human Services]'s designation for the geographical area or areas.”

The problem for specialty care physicians was that the Department of Health and Human Services (HHS) did not ever specifically say that a lack of specialists contributed to a shortage of doctors in those geographic areas.

A little while ago, a specialist physician had his NIW application turned down by USCIS for that reason, but he appealed his case. USCIS’s Administrative Appeals Office (AAO) decided that he should have been given an NIW, even if the HHS designations apparently included only primary care physicians. The AAO found, to the contrary, that the HHS designations do not necessarily mean that there is a shortage of primary medical care physicians only. Instead, they should be interpreted to mean that specialists are needed as well.

USCIS has now officially adopted the reasoning of the AAO and is instructing its adjudicators to give NIWs to otherwise qualified medical specialists, as well as to primary care physicians.