from the uscis field manual- you can file an NIW!
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d286150e2
see under 22.2 (j) 6
(B) Eligibility . USCIS regulation at 8 CFR 204.12 establishes the basic eligibility requirements for the alien physician, namely that:
· A petition has been filed under section 203(b)(2) of the Act, accompanied by the national interest waiver request;
· The physician agrees to work full-time in a clinical practice providing primary or specialty care in an underserved area or at a VA health care facility for an aggregate of 5 years (not counting any time in J-1 status, but including such time that may have preceded the I-140 ), or, if the petition was filed prior to 11/1/98, an aggregate of 3 years (not counting any time in J-1 status); and
· A Federal agency or a State Department of Public Health, with jurisdiction over the medically underserved area, has determined that the physician’s work in the underserved area or the VA facility is in the public interest (and, to the extent that past work is presented, that it was in the public interest).
(C) Primary or Specialty Care : As of the January 23, 2007, NIW petitions may be submitted on behalf of primary and specialty care physicians who agree to work full-time in areas designated by HHS as having a shortage of specialty care health professionals, i.e. Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), Medically Underserved Population (MUP), and Physician Scarcity Areas (PSA).
Prior to January 23, 2007, based on HHS’ criteria published in 2000, INS limited its definition of qualified physicians in designated shortage areas to those who practiced primary care medicine. 8 CFR 204.12(a)(2)(i) . Primary care medicine is defined as family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry. Since 2000, INS, and now USCIS, has given state departments of health more flexibility to sponsor waivers for physicians willing to work in medically underserved areas. For instance, under the Conrad waiver program, state departments of health may sponsor waivers for J-1 specialist physicians who will provide service to medically underserved populations (MUP). T he Conrad program is similar to the national interest waiver program as they both have a medical service requirement under which the physician must work in a medically underserved area.
In 2004, HHS considered specialists in its listing of specialist care scarcity areas under the Physician Scarcity Area (PSA) bonus payment program. While HHS did not make a declaration of an absolute shortage area, it did define geographic areas as scarcity areas based on the ratio of physicians to the population of Medicare beneficiaries. The Nursing Relief Act requires USCIS to recognize HHS designations of health professionals without limitation to primary care. In following HHS’ designations of MUP a nd PSA, USCIS will now recognize NIW physicians in primary care and specialty care. A specialty physician is defined as other than a general practitioner, family practice practitioner, general internist, obstetrician, or gynecologist. Dentists, chiropractors, podiatrists, and optometrists do not qualify for the physician scarcity bonus as specialty physicians, and therefore, cannot qualify for the national interest waiver.
Note: A physician or employer must submit evidence showing that a geographic area is or was designated by the HHS as having a shortage of health care professionals. The designation must be valid at the time the NIW waiver employment began. If the area loses its HHS’ designation after the physician starts working, a physician can remain at the facility and the time worked henceforth will qualify as NIW employment so long as the employment continues to satisfy all other national interest waiver requirements.
(D) Medically Underserved Areas . In designating areas of the country as “underserved,” the Secretary of Health and Human Services (HHS) addresses the shortage of family or general medicine and sub-specialist physicians (designations include Health Professional Shortage Areas (HPSA), Medically Underserved Population (MUP), Medically Underserved Area (MUA), and Physician Scarcity Areas (PSAs)). For work that preceded the I-140 , the area must have been a designated shortage area at the time the work commenced but need not have retained such designation. For shortage designations, see these sources:
