sustained EB-2 NIW Case: Hematology-Oncology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF H-V-P- DATE: FEB. 9, 2016 
CERTIFICATION OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician, seeks an immigrant visa petition as a member of the professions holding 
an advanced degree as set forth in section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1153(b)(2). In addition, the Petitioner seeks a "national interest" waiver (NIW) from the 
requirement of a job offer by a U.S. employer. Section 203(b )(2)(B)(ii) of the Act not only 
authorizes but requires that such a waiver be afforded to a physician who meets several conditions, 
most notably for our purposes: (1) that the physician would work in a medically underserved area as 
designated by the Secretary of Health and Human Services (HHS); and (2) that a Federal agency or 
State public health department certifies the physician's work is in the public interest. 
The Director, Texas Service Center, denied the petition because he found that the Petitioner's past 
and prospective work as a specialty care physician did not make him eligible for the national interest 
waiver. The Director then certified the case to us for review. 1 The issue presented is whether 
eligibility for the physician NIW is available to medical specialists even though the HHS designations 
ostensibly are limited to only primary care physicians. Upon de novo review, we will withdraw the 
Director's decision and approve the petition. 
I. LAW AND POLICY 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. 
(A) In general. Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
1 
8 C.F.R. § I 03.4(a) permits DHS components to certifY their decision for further review by the appropriate appellate 
authority when the matter involves an unusually complex or novel issue of law or fact. 
Matter of H- V-P-
interests, or welfare of the United States, and whose services in the sciences, arts, 
professions, or business are sought by an employer in the United States. 
(B) Waiver of job offer 
(i) National interest waiver. Subject to clause (ii), the Attorney Generae may, 
when the Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, arts, 
professions, or business be sought by an employer in the United States. 
(ii) Physicians working in shortage areas or veteran facilities. 
(I) In general. The Attorney General shall grant a national interest 
waiver pursuant to clause (i) on behalf of any alien physician with 
respect to whom a petition for preference classification has been filed 
under subparagraph (A) if-
(aa) the alien physician agrees to work full time as a physician in an area or 
areas designated by the Secretary of Health and Human Services as having a 
shortage of health care professionals or at a health care facility under the 
jurisdiction of the Secretary ofVeterans 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. 
The regulation at 8 C.F.R. § 204.12(a) requires a petitioner seeking a wmver under section 
203(b)(2)(B)(ii) of the Act to establish the following: 
(1) The physician agrees to work full-time (40 hours per week) in a clinical practice 
for an aggregate of 5 years (not including time served in J-1 nonimmigrant status); 
and 
(2) The service is; 
(i) In a geographical area or areas designated by the Secretary of Health and 
Human Services (HHS) as a Medically Underserved Area, a Primary Medical 
2 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. 107-296, 116 Stat. 2135, 2311 
(codified at 6 U.S.C. § 557 (2012)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
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Health Professional Shortage Area, or a Mental Health Professional Shortage 
Area, and in a medical speciality that is within the scope of the Secretary's 
designation/or the geographical area or areas; or 
(ii) At a health care facility under the jurisdiction of the Secretary of Veterans 
Affairs (VA); and 
(3) A Federal agency or the department of public health of a State, territory of the 
United States, or the District of Columbia, has previously determined that the 
physician's work in that area or facility is in the public interest. 
(Emphasis added.) The regulation at 8 C.F.R. § 204.12(c) goes on to set forth evidence that the 
petitioner must submit, including, in part, documentation that the physician will serve "[i]n a 
geographical area or areas designated by the Secretary of HHS as having a shortage of health care 
professionals and in a medical speciality that is within the scope of the Secretary's designation for 
the geographical area or areas" (or in a VA facility). 8 C.F.R. § 204.12(c)(2). (Emphasis added.)3 
In the preamble to the 2000 rule implementing the physician NIW, the legacy Immigration and 
Naturalization Service (INS) noted that HHS limited its medical care shortage designations to certain 
general areas of practice (which we will refer to as "primary medical care" or "primary care").4 The INS 
accordingly stated that it would limit physician NIW s to these areas of primary care as well, 
notwithstanding the statute's use ofthe term "any physician." See, National Interest Waivers for Second 
Preference Employment-Based Immigrant Physicians Serving in Medically Underserved Areas or at 
Department of Veterans Affairs Facilities, 65 Fed. Reg. 53889, 53890 (Sept. 6, 2000). 
In 2006, the U.S. Court of Appeals for the Ninth Circuit struck down several parts of the regulations 
relating to physician NIWs, but did not address a challenge to the requirement under 8 C.F.R. 
§ 204.12(c) that the physician's service be within the scope of the HHS designation. Schneider v. 
Chertoff, 450 F.3d 944, 959-960 (9th Cir. 2006). In the wake of the Schneider decision, USCIS issued a 
policy memorandum revising the USCIS Adjudicator's Field Manual and providing interim procedures 
for adjudicating physician NIW s. This memo stated, ". . . US CIS is expanding the fields of medical 
specialty that may qualify physicians for NIW s by accepting petitions on behalf of physicians who 
provide specialty care."5 (Emphasis in original.) The memo went on to note: "The Nursing Relief Act 
[creating the mandatory physician NIW] requires USCIS to recognize HHS designations of health 
3 Both regulatory provisions cited above use the term "speciality," whereas other agency materials use the term 
"specialty." We consider those terms to be interchangeable. 
4 Those areas of practice were family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, 
and psychiatry. 65 Fed. Reg. 53889, 53890. 
5 Memorandum from Michael Aytes, Associate Director, Domestic Operations, USC IS, 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 ofSchneider v. Chertoff, 450 F. 3d 944 (9th Cir. 2006) ("Schneider decision'') (Jan. 
23, 2007) (the "Schneider Memo"). Available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/ 
Static _Files_ Memoranda!schneiderintrmO 12307 .pdf. 
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Matter of H- V-P-
professionals without limitation to primary care. In following HHS' designations of MUP [Medically 
Underserved Population] and PSA [Physician Scarcity Area], USCIS will now recognize NIW 
physicians in primary and specialty care." (Reference omitted.) 
II. PERTINENT FACTS AND PROCEDURAL HISTORY 
The Petitioner filed Form I-140, Immigrant Petition for Alien Worker, seeking an immigrant visa 
petition under section 203(b)(2)(A) of the Act as a member of the professions holding an advanced 
degree, with an accompanying request for a national interest waiver under section 203(b )(2)(B)(ii). 
As supporting evidence, the Petitioner submitted a letter from the Illinois Department of Public 
Health in accordance with section 203(b)(2)(B)(ii)(I)(bb) of the Act, stating that the Petitioner's 
services are in the public interest, as well as documentation indicating that HHS designated his 
medical practice site as a Health Professional Shortage Area (HPSA) and a Medically Underserved 
Area/Population (MUA/P). 
The Director issued a notice of intent to deny (NOID) the Form I-140, however, noting that the 
Petitioner's current field of practice (hematology-oncology) is a specialty practice area, and stating 
that only primary medical care practitioners are eligible for a physician NIW based on service in an 
HPSA, or MUA/P. The Director pointed out that HHS had designated the Petitioner's practice site as 
an HPSA as well as a MUA/P. These HHS designations, the Director observed, relate to a lack of 
primary medical care providers, while only HHS' Physician Scarcity Area (PSA) designation 
encompasses both primary care and specialty care. Citing the Schneider memo, he stated that any 
service in a medical specialty must be performed in a PSA, not in an HSPA or MUA/P. 
In a letter responding to the NOID, the Petitioner argued that the Director misconstrued the Schneider 
Memo because that memo states that service by a specialty care physician in any area HHS designates 
as having a shortage of physicians will qualify for the NIW, including service within an HPSA or 
MUA/P. The Petitioner also stated that HHS no longer maintains and updates shortage designation 
information for PSAs, submitting a publication by HHS' Centers for Medicare & Medicaid Services 
(CMS) about the "sunset" of its PSA bonus payment program on January 1, 2008. 
The Director then denied the Form I-140, finding that the Petitioner's service as a hematologist­
oncologist in an area designated as an HPSA and MUA/P is not qualifying service for the purpose of 
national interest waiver eligibility. The Director noted that, under 8 C.F.R. § 204.12(a)(2), a 
physician must practice "in a medical specialty that is within the scope of the Secretary's designation 
for the geographical area or area," and that HHS does not consider specialty care physicians in its 
HPSA and MUA/P designations. The Director again cited the Schneider Memo as the basis for his 
decision, and certified his decision for our review under 8 C.F.R. § 103.4(a). 
In his brief to us on certification, the Petitioner contends that the Director's decision is contrary to the 
purpose and structure of the statute, is contrary to the Schneider Memo, and represents a departure 
from agency practice in the years since the Schneider memo. The Petitioner submits a letter from the 
Illinois Department of Public Health, stating that "the HPSA shortage designation system is the most 
4 
(b)(6)
Matter of H- V-P-
reliable and accurate system for measuring shortages of physicians, both primary and specialty care, 
in communities in Illinois." The letter further explains that the "input for the HPSA is not just the 
number of primary care physicians in a particular area, but includes extensive and diverse 
demographic data on the community," and that specialists and primary care physicians "work side by 
side providing care to the same patients." The Petitioner also submits a letter from the chair of the 
department of medicine at . who maintains that internists 
and specialists "function together as an integrated team" within the department "providing care for 
the same population of patients." 
The Petitioner has also submitted an amicus curiae brief prepared jointly by the American 
Immigration Council, the American Immigration Lawyers Association, and the International Medical 
Group Taskforce. 6 In their brief, amici argue (1) that the statute mandates a non-discretionary waiver 
for "any alien physician" practicing in a designated shortage area, (2) that HPSAs and MUA/Ps are 
the most accurate and current indication of a shortage area, and (3) that, even though these HHS 
programs only look at primary care doctors in their calculation, other factors (such as distance and 
poverty) pertain equally to primary and specialty care. The brief was supported by sworn 
declarations from four immigration attorneys who attest to USCIS' practice of routinely approving 
NIWs for specialty care physicians since USCIS issued the 2007 Schneider Memo. 
III. ANALYSIS 
This matter requires us to resolve how to adjudicate an immigration law classification that depends 
upon certain findings by a sister department in its administration of a health care program. 
Section 203(b )(2)(B)(ii) of the Act states that a national interest waiver shall be granted to "any alien 
physician" who will work in an area designated as having a shortage of health care professionals, and 
makes no mention of limitations relating to the physician's practice area. In making this waiver 
mandatory in the Nursing Relief Act, Congress clearly intended to improve the accessibility of 
medical care in underserved areas by providing a waiver of a job offer from a U.S. employer if the 
physician was willing to practice full time in such an area for five years or more. The framework it 
created to do so requires first that HHS has designated the area the physician intends to practice in as 
"having a shortage of health care professionals," and secondly, that a Federal agency or State 
department of public health has determined that the physician's services in that area are "in the public 
interest." 
The regulation at 8 C.F.R. § 204.12(a)(2)(i) adds a requirement that the physician's area of medical 
specialty is within the scope of the HHS designation for that area. As noted above, HHS does not 
single out specialty areas of medical practice in its HPSA and MUA/P designations. While at one 
time it may have done so with PSAs, that program sunset in 2008 and those designations are no 
longer effective; the only designations that currently exist relate to primary medical care. 
6 The AAO appreciates the thoughtful statements of amici who helped inform this certification. 
Matter of H- V-P-
To read this regulation as requiring an affirmative HHS certification of a shortage of specialty care 
effectively bars all specialist physicians from ever receiving a NIW, no matter how urgently their 
services may be needed. Were we to construe the regulation to require an HHS designation only 
under a program that ended in 2008, we would frustrate the statutory scheme Congress enacted to 
improve access to medical care in underserved areas. 
Moreover, the petitioner has submitted persuasive arguments and probative evidence that the HPSA 
and MUA/P designations do not necessarily denote a shortage solely of primary medical care 
physicians. While the designations may only count primary care physicians in their calculus, this is 
reportedly due to the difficulty of incorporating an analysis that includes the availability of physicians 
practicing in a large number of specialties. We also note that the letter from the Illinois Department of 
Public Health mentioned above states that the HPSA designation is the best way to measure shortages 
of both primary and specialty care physicians in that State. 
Finally, the 2007 Schneider memo already acknowledged this broader set of relevant HHS programs 
to inform physician NIW adjudications. While the Director is correct that the memo specifically 
referenced the PSA designation in certain instances, the memo also stated that the statute "requires 
USCIS to recognize HHS designations of health professionals without limitation to primary care." An 
accompanying update to the USCIS Adjudicator's Field Manual instructed that USCIS would now 
accept petitions from both primary care and specialty care doctors who agree to work in shortage 
areas, "i.e. Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), 
Medically Underserved Population (MUP), and Physician Scarcity Areas (PSA)." Schneider Memo, 
at 11. Accordingly, USCIS began approving NIW petitions on behalf of specialty care physicians in 
all designation categories following the issuance of the memo in 2007, and that practice has 
continued to this day. 
IV. CONCLUSION 
The Petitioner demonstrated that he is practicing in the specialty of hematology-oncology in an area 
designated by HHS as having a shortage of health care professionals. As the Petitioner has satisfied 
the other applicable statutory and regulatory requirements, we conclude that he has demonstrated 
eligibility for immigrant classification as a member of the professions holding an advanced degree, as 
well as an accompanying physician NIW. 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has been met. 
ORDER: The initial decision of the Director, Texas Service Center is withdrawn, and the 
petition is approved. 
Cite as Matter ofH-V-P-, ID# 16270 (AAO Feb. 9, 2016)