On February 9th, 2016, in a non-precedent decision, the Administrative Appeals Office (AAO) ruled in Matter of H-V-P- that a Specialty Care Physician qualifies under the Physician National Interest Waiver (PNIW) program by working five years in a federally-designated Medically Underserved Area (MUA) or Health Professional Shortage Area (HPSA).
Matter of H-V-P- involved a Hematologist-Oncologist who was petitioning for a PNIW based on his service in a MUA and HPSA, a fact pattern which USCIS had accepted for a decade. The USCIS Texas Service Center (TSC) denied the PNIW Petition because the service was in a MUA and HPSA, arguing that Specialty Care Physicians only qualify for a PNIW if they work in a Physician Scarcity Area (PSA), a federal designation that ended in 2008.
After denying the PNIW, the TSC certified the case to the AAO. USCIS also issued internal guidance instructing both the TSC and the Nebraska Service Center (NSC) to hold in abeyance all PNIW cases for Specialty Care Physicians pending the AAO’s decision. Since then, we have seen the NSC adjudicate a few PNIW cases for Specialty Care Physicians but no movement on PNIW cases at the TSC.
In its decision, the AAO held that “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.”
Interestingly, the AAO did not make this a precedent decision. Nevertheless the AAO language is clear and states that the TSC’s interpretation regarding PSA’s would “frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas.” We expect to see the TSC and the NSC comply with the legal analysis in this decision and immediately resume adjudication PNIW Petitions for Specialty Care Physicians working in MUAs/HPSAs.
SPS Immigration continues to monitor the status of PNIW cases at both the TSC and the NSC Service Centers and will provide updates as they become available. Please contact us should you have questions.