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The Division of Public Health Services, Rural Health and Primary Care Section, has the responsibility within the State of New Hampshire to provide a Letter of Attestation in support of a foreign physician's request for a National Interest Waiver from the US Citizenship and Immigration Services (USCIS). The foreign physicians' work must be in an area that has been designated as having a shortage of health care providers by the Secretary of Health and Human Services, and must be deemed by the Division of Public Health Services to be the public interest.
As part of the J-1 Visa Waiver regulations, the foreign physician cannot obtain permanent residence status (obtain a "green card") from the USCIS until after fulfilling his/her three-year commitment. However, the employer may start the process in stages. There are two options for the immigrant visa process: the Labor Certification or the National Interest Waiver.
The Labor Certification process requires the employer to initiate a recruitment period and place one journal ad. There is a risk to this process because if a qualified U.S. worker applies for the position, the labor certification application cannot be filed.
To bypass the labor certification process entirely, the USCIS will grant a National Interest Waiver (NIW) on behalf of any foreign physician who has met the following criteria:
- The foreign physician agrees to work full-time in an area designated as having a shortage of healthcare professionals or a health care facility under the jurisdiction of Veterans Affairs;
- A federal agency or a state public health department has previously determined that the foreign physician's working such an area or at such facility was in public interest; and
- The foreign physician works full-time in such an area for an aggregate of five years before he or she is eligible to adjust status or obtain an immigrant visa under the waiver provision.
The advantage of the NIW is that no labor certification is required. The foreign physician, however, is obligated to work in the underserved area for a minimum of five years. Consequently, his/her visa would have to be extended beyond the initial three years. The NIW and the Application for Adjustment of Status to Permanent Residence may be submitted before the five-year period is completed. However, permanent residence may not be granted until the period of commitment ends in five years.
We suggest that the employer and the physician discuss the best option for their situation.
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