sustained EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 10017162 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 27, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physician, seeks second preference immigrant classification as a member of the 
professions holding an advanced degree, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). Section 203(b)(2)(B)(ii) of the Act provides that such a 
waiver shall be afforded to a physician who meets several conditions, including that a Federal agency 
or a state department of public health has determined that his work was in the public interest. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
provided the required determination from the department of public health in his state indicating that his 
work was in the public interest. 
On appeal, the Petitioner submits additional evidence and a brief asserting that he is eligible for a 
physician national interest waiver. 
In these 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. Upon de nova review, we will sustain the appeal. 
I. LAW 
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 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 General1 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. 
(1) 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 of Veterans 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. 
As indicated above, section 203(b)(2)(B)(ii)(l)(aa) of the Act provides a national interest waiver for 
certain physicians who agree to work in an area 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 of Veterans Affairs. In addition, section 203(b)(2)(B)(ii)(l)(bb) states that 
the physician must show that a Federal agency or a state department of pub I ic health has previously 
determined that his work in such an area or at such a facility was in the public interest. 
Furthermore, the implementing regulations at 8 C.F.R. § 204.12 set forth the evidentiary requirements 
to establish eligibility for the physician national interest waiver. Specifically, as relevant here, the 
regulation at 8 C.F.R. § 204.12(c)(3) provides that a petitioner must submit "[a] letter (issued and dated 
within 6 months prior to the date on which the petition is filed) from a Federal agency or from the 
department of public health (or equivalent) of a State or territory of the United States or the District of 
Columbia, attesting that the alien physician's work is or will be in the public interest." 
1 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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II. ANALYSIS 
The record indicates that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue is whether he meets the requirements for a physician national interest 
waiver set forth in section 203(b)(2)(B)(ii)(l)(bb) of the Act and the implementing regulation at 
8 C.F.R. § 204.12(c)(3) . 
The Petitioner initially provided a September 2017 letter from the I I Department of Health 
indicating that he will be practicing at University! I in a Health 
Professional Shortage Area and a Medically Underserved Area. This letter further stated: "[The 
Petitioner] will be providing direct patient care sf rvices a minimum of 40 hours a week beginning 
August 28, 2017, to the medically underserved in_ I and surrounding communities. The 
I I Department of Health supports the national interest waiver to be filed on behalf of [the 
Petitioner]." 
In denying the petition , the Director noted that the letter presented from thel I Department of 
Health "did not attest that [the Petitioner's] work was in the public interest as required by the 
regulation .. .. Although the letter attests that [the Petitioner] will work in a medically underserved 
area, it does not include language that attests to [his] work being in the public interest." 
With th~, the Petitioner submits an April 2019 letter froml I State Primary Care 
Officer,L__JDepartment of Health, stating: '1 I Department of Health supports the national 
interest waiver application and finds it in the public interest for [the Petitioner] to practice aOHealth 
I ~ In conjunction with the initial letter, this updated letter clarifying that the Petitioner's 
work atL__fHealth I lwas in the public interest is sufficient to satisfy the requirements of 
section 203(b)(2)(B)(ii)(l)(bb) of the Act and the regulation at 8 C.F.R. § 204.12(c)(3). 
111. CONCLUSION 
The Petitioner has overcome the Director's basis for denial and established he is eligible for a national 
interest waiver. 
ORDER: The appeal is sustained. 
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