[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245.18]

[Page 537-539]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 245_ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT 
RESIDENCE--Table of Contents
 
Sec. 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 Sec. 
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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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

[[Page 538]]

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 Sec. 
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 Sec. 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

[[Page 539]]

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 Sec. 204.12(a) 
of this chapter, the Service 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 within 30 days of the 
date of the written notice. The Service shall not extend this 30-day 
period. If the alien physician fails to submit the evidence within the 
30-day period established by the written notice, the Service 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 Sec. 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 Sec. 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.

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