245.18—How can physicians (with approved Forms I-140) that are serving in medically underserved areas or at a Veterans Affairs facility adjust status?

(a) Which physicians are eligible for this benefit? Any alien physician who has been granted a national interest waiver under § 204.12 of this chapter may submit Form I-485 during the 6-year period following Service approval of a second preference employment-based immigrant visa petition.

(b) Do alien physicians have special time-related requirements for adjustment? (1) Alien physicians who have been granted a national interest waiver under § 204.12 of this chapter must meet all the adjustment of status requirements of this part.

(2) The Service shall not approve an adjustment application filed by an alien physician who obtained a waiver under section 203(b)(2)(B)(ii) of the Act until the alien physician has completed the period of required service established in § 204.12 of this chapter.

(c) Are the filing procedures and documentary requirements different for these particular alien physicians? Alien physicians submitting adjustment applications upon approval of an immigrant petition are required to follow the procedures outlined within this part with the following modifications.

(1) Delayed fingerprinting. Fingerprinting, as noted in the Form I-485 instructions, will not be scheduled at the time of filing. Fingerprinting will be scheduled upon the physician's completion of the required years of service.

(2) Delayed medical examination. The required medical examination, as specified in § 245.5, shall not be submitted with Form I-485. The medical examination report shall be submitted with the documentary evidence noting the physician's completion of the required years of service.

(d) Are alien physicians eligible for Form I-766, Employment Authorization Document? (1) Once the Service has approved an alien physician's Form I-140 with a national interest waiver based upon full-time clinical practice in an underserved area or at a Veterans Affairs facility, the alien physician should apply for adjustment of status to that of lawful permanent resident on Form I-485, accompanied by an application for an Employment Authorization Document (EAD), Form I-765, as specified in § 274a.12(c)(9) of this chapter.

(2) Since section 203(b)(2)(B)(ii) of the Act requires the alien physician to complete the required employment before the Service can approve the alien physician's adjustment application, an alien physician who was in lawful nonimmigrant status when he or she filed the adjustment application is not required to maintain a nonimmigrant status while the adjustment application remains pending. Even if the alien physician's nonimmigrant status expires, the alien physician shall not be considered to be unlawfully present, so long as the alien physician is practicing medicine in accordance with § 204.5(k)(4)(iii) of this chapter.

(e) When does the Service begin counting the physician's 5-year or 3-year medical practice requirement? Except as provided in this paragraph, the 6-year period during which a physician must provide the required 5 years of service begins on the date of the notice approving the Form I-140 and the national interest waiver. Alien physicians who have a 3-year medical practice requirement must complete their service within the 4-year period beginning on that date.

(1) If the physician does not already have employment authorization and so must obtain employment authorization before the physician can begin working, then the period begins on the date the Service issues the employment authorization document.

(2) If the physician formerly held status as a J-1 nonimmigrant, but obtained a waiver of the foreign residence requirement and a change of status to that of an H-1B nonimmigrant, pursuant to section 214(1) of the Act, as amended by section 220 of Public Law 103-416, and § 212.7(c)(9) of this chapter, the period begins on the date of the alien's change from J-1 to H-1B status. The Service will include the alien's compliance with the 3-year period of service required under section 214(l) in calculating the alien's compliance with the period of service required under section 203(b)(2)(B)(ii)(II) of the Act and this section.

(3) An alien may not include any time employed as a J-1 nonimmigrant physician in calculating the alien's compliance with the 5 or 3-year medical practice requirement. If an alien is still in J-1 nonimmigrant status when the Service approves a Form I-140 petition with a national interest job offer waiver, the aggregate period during which the medical practice requirement period must be completed will begin on the date the Service issues an employment authorization document.

(f) Will the Service provide information to the physician about evidence and supplemental filings? The Service shall provide the physician with the information and the projected timetables for completing the adjustment process, as described in this paragraph. If the physician either files the Form I-485 concurrently with or waits to subsequently file the Form I-485 while the previously filed Form I-140 is still pending, then the Service will given this information upon approval of the Form I-140. If the physician does not file the adjustment application until after approval of the Form I-140 visa petition, the Service shall provide this information upon receipt of the Form I-485 adjustment application.

(1) The Service shall note the date that the medical service begins (provided the physician already had work authorization at the time the Form I-140 was filed) or the date that an employment authorization document was issued.

(2) A list of the evidence necessary to satisfy the requirements of paragraphs (g) and (h) of this section.

(3) A projected timeline noting the dates that the physician will need to submit preliminary evidence two years and 120 days into his or her medical service in an underserved area or VA facility, and a projected date six years and 120 days in the future on which the physician's final evidence of completed medical service will be due.

(g) Will physicians be required to file evidence prior to the end of the 5 or 3-year period? (1) For physicians with a 5-year service requirement, no later than 120 days after the second anniversary of the approval of Petition for Immigrant Worker, Form I-140, the alien physician must submit to the Service Center having jurisdiction over his or her place of employment documentary evidence that proves the physician has in fact fulfilled at least 12 months of qualifying employment. This may be accomplished by submitting the following.

(i) Evidence noted in paragraph (h) of this section that is available at the second anniversary of the I-140 approval.

(ii) Documentation from the employer attesting to the fill-time medical practice and the date on which the physician began his or her medical service.

(2) Physicians with a 3-year service requirement are not required to make a supplemental filing, and must only comply with the requirements of paragraph (h) of this section.

(h) What evidence is needed to prove final compliance with the service requirement? No later than 120 days after completion of the service requirement established under § 204.12(a) of this section, an alien physician must submit to the Service Center having jurisdiction over his or her place of employment documentary evidence that proves the physician has in fact satisfied the service requirement. Such evidence must include, but is not limited to:

(1) Individual Federal income tax returns, including copies of the alien'sW-2 forms, for the entire 3-year period or the balance years of the 5-year period that follow the submission of the evidence required in paragraph (e) of this section;

(2) Documentation from the employer attesting to the full-time medical service rendered during the required aggregate period. The documentation shall address instances of breaks in employment, other than routine breaks such as paid vacations;

(3) If the physician established his or her own practice, documents noting the actual establishment of the practice, including incorporation of the medical practice (if incorporated), the business license, and the business tax returns and tax withholding documents submitted for the entire 3 year period, or the balance years of the 5-year period that follow the submission of the evidence required in paragraph (e) of this section.

(i) What if the physician does not comply with the requirements of paragraphs (f) and (g) of this section? If an alien physician does not submit (in accordance with paragraphs (f) and (g) of this section) proof that he or she has completed the service required under 8 CFR 204.12(a), USCIS shall serve the alien physician with a written notice of intent to deny the alien physician's application for adjustment of status and, after the denial is finalized, to revoke approval of the Form I-140 and national interest waiver. The written notice shall require the alien physician to provide the evidence required by paragraph (f) or (g) of this section. If the alien physician fails to submit the evidence within the allotted time, USCIS shall deny the alien physician's application for adjustment of status and shall revoke approval of the Form I-140 and of the national interest waiver.

(j) Will a Service officer interview the physician? (1) Upon submission of the evidence noted in paragraph (h) of this section, the Service shall match the documentary evidence with the pending form I-485 and schedule the alien physician for fingerprinting at an Application Support Center.

(2) The local Service office shall schedule the alien for an adjustment interview with a Service officer, unless the Service waives the interview as provided in § 245.6. The local Service office shall also notify the alien if supplemental documentation should either be mailed to the office, or brought to the adjustment interview.

(k) Are alien physicians allowed to travel outside the United States during the mandatory 3 or 5-year service period? An alien physician who has been granted a national interest waiver under § 204.12 of this chapter and has a pending application for adjustment of status may travel outside of the United States during the required 3 or 5-year service period by obtaining advanced parole prior to traveling. Alien physicians may apply for advanced parole by submitting form I-131, Application for Travel Document, to the Service office having jurisdiction over the alien physician's place of business.

(l) What if the Service denies the adjustment application? If the Service denies the adjustment application, the alien physician may renew the application in removal proceedings.

Code of Federal Regulations

[65 FR 53895, Sept. 6, 2000; 65 FR 57861, Sept. 26, 2000; 65 FR 57944, Sept. 27, 2000; 67 FR 49563, July 31, 2002; 72 FR 19107, Apr. 17, 2007]