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Victory for National Interest Waiver Physicians

    A recent decision by the 9th Circuit Court of Appeals in California changed the federal regulations that apply to National Interest Waiver (“NIW”) physicians. In Schneider v. Chertoff, No. 04-55689, D.C. No. CV-02-09228-DSF, a group of physicians successfully challenged the following NIW physician regulations of the USCIS: 1) the rule that the NIW physician’s qualifying medical practice does not begin until the approval of both the immigrant visa petition and NIW; 2) the requirement that a physician who previously filed a NIW application before November 1, 1998, and whose application was denied before November 12, 1999, must then practice medicine in a shortage area for 5 years instead of 3 years; and 3) the imposition of a time period during which the physician must complete the qualifying NIW medical practice. 

    The Schneider Court ruled that the above regulations conflicted with Congress’ intent and held as follows: 1) All medical practice, except practice while on a J-1 visa, counts towards the physician’s NIW medical practice requirement, regardless of whether the immigrant visa petition or NIW were filed or approved; 2) Physicians whose employers filed NIW petitions before November 1, 1998, are only required to fulfill 3 years of NIW medical practice; and 3) There are no time limitation periods in which the physician must fulfill their 3 or 5 years of NIW medical practice. Finally, it is important to note that this ruling only applies to physicians within the 9th Circuit Court of Appeals’ jurisdiction. However, we anticipate that other courts across the country will adopt similar positions as the Schneider Court. Please click here to read the complete Schneider v. Chertoff opinion.