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April 5, 2000

National Interest Waiver Eligibility for International Medical Graduates

Author Affiliations

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JAMA. 2000;283(13):1747. doi:10.1001/jama.283.13.1747-JMS0405-3-1

Over the past 10 years, foreign national physicians have had widely varying success in applying for permanent residency status in the United States. Since 1990, one path by which these physicians have remained in the United States is to apply for national interest waivers to circumvent traditional immigration certification requirements.1 An examination of the history of these waivers reveals some of the conflicting priorities that inform the United States' immigration policies toward foreign physicians.

US immigration laws contain certain provisions that enable foreign nationals to qualify for permanent residence under the sponsorship of their employers. In most instances, employers must undergo a complex recruitment and advertising effort to prove that qualified US workers are not available to fill the position in question.2 This application process is generally complicated, time-consuming, and intense in that it requires employers to demonstrate that they are not decreasing the availability of jobs for US citizens by employing workers from abroad. Under this framework, foreign physicians are regarded primarily as a threat to the job security of US national doctors.

However, an alternate pathway to permanent residence exists on the premise that the immigration of a foreign national can carry broad benefits to the United States. A recent initiative arising from the Immigration Act of 1990, the "national interest waiver classification" pathway, has antecedents in previous legislative enactments intended to induce socially beneficial cooperative behavior.3 Under this framework, the United States recognizes that foreign physicians willing to work in medically underserved areas provide "gap-filling" services that contribute to the overall welfare of the population. Such physicians can apply to be excused from the traditional certification process if they provide documentation that it is in the "national interest" of the United States to admit them as permanent residents.

Starting in 1998, however, there emerged a growing pattern of denials of national interest waiver cases involving foreign physicians. These denials were based on the argument that foreign national physicians who worked in medically underserved communities were providing a local rather than a national service,4 or that these physicians needed to work more than the 3 years stipulated for J-1 exchange-visit visas in order to make a true and lasting impact on the community.5 This policy change coincided with the appearance of work force reports arguing that IMGs departed prematurely from at-risk communities, as well as a growing movement in the US medical community advocating more rigid policies toward foreign physicians.6,7

This resistance eventually matured into a consistent denial of national interest waiver requests filed on behalf of foreign physicians as set forth in Matter of New York State Department of Transportation (NYSDOT). After NYSDOT, the Immigration and Naturalization Service stated categorically that "there is no indication in the legislative history, statute, regulations, or binding legal precedent that physicians as a group are exempt from the labor certification requirement."8 Thereafter, employers seeking to recruit foreign physicians were forced to go through the traditional application process with attendant delays, uncertainty, and complexity. This situation created a particularly difficult situation for employers with special recruitment needs, such as those located in designated medically underserved communities or in facilities under the jurisdiction of the Department of Veterans Affairs.

Quite recently, Congress' concern about patterns of physician distribution has given rise to legislation entitled the Nursing Relief for Disadvantaged Areas Act of 1999, which addresses the shortage of nurses and physicians in designated areas of the United States.9 Signed into law by President Clinton on November 12, 1999, this bill is the culmination of a decade of debate on the role of immigration policies in serving the nation's health care agenda. As a result, physicians working within designated medically underserved areas and/or within the Veterans Affairs' system can again qualify for a national interest waiver.

The crux of this proposal is that physicians working in medically underserved areas provide a national service by alleviating the maldistribution of physicians in the United States. This measure does not create an unqualified entitlement to permanent resident status, as foreign physicians must fulfill a 5-year service commitment to a medically underserved area prior to obtaining permanent resident status. Nevertheless, it is the hope of workforce analysts that it will facilitate the recruitment and retention of physicians in areas that have been underserved by the health care system.

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Yanni  PR Re-railing the train: the true meaning of national interest. Murphy  RP  et al. eds. AILA Immigration and Naturalization Handbook. Vol 2 Washington, DC American Immigration Lawyers Association1998;
Not Available, Matter of (name not provided), WAC 98 11555076, California RSC (1998).
Not Available, Matter of (name not provided), WAC 98 08053742, California RSC (1998).
Council on Graduate Medical Education, 1997 Recommendation to the Congress and the Secretary of Health and Human Services on Graduate Medical Education Payment Reform.  Washington, DC US Dept of Health and Human Services1997;
Institute of Medicine, The Nation's Physician Workforce.  Washington, DC National Academy Press1996;
Not Available, Matter of (name not provided), A75385.
Not Available, Not Available Pub L No. 106-95, 113 Stat 1312.