[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR245.18]



[Page 537-540]

 

                     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



[[Page 538]]



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 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



[[Page 539]]



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 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.



[[Page 540]]



    (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]