AA0 overturns Denial of PNIW for Physician Working in Underserved Area


On February 9, 2016, in Matter of H-V-P, the Administrative Appeals Office (AAO) overturned the denial of an Immigrant Petition that was filed by a Physician seeking to obtain approval of a Physician National Interest Waiver (PNIW) Immigrant Petition (I-140).  The Immigration and Nationality Act authorizes approval of a PNIW I-140 in instances where a physician meets a number of conditions.  For the purposes of this appeal, the requirement at issue was whether or not the physician was working in a medically underserved area as designated by the Secretary of Health and Human Services.

The petitioner had submitted evidence that the physician, a hematology-oncology specialist, was performing work that is in the national interest, as well as documentation that the physician was going to be performing services at a site that had been designated by the Department of Health and Human Services as a Health Professional Shortage Area and a Medically Underserved Area/Population.  The USCIS Texas Service Center denied the PNIW Petition, stating that a Specialty Care Physician can only qualify for a PNIW if they work in a Physician Scarcity Area, a designation that HHS stopped using in 2008.

In the appeal to the AAO, the petitioner argued that this denial was contrary to the purpose and structure of the governing statute, and was a departure of years of agency practice relating to PNIW petitions for physicians serving in underserved areas.  The AAO ruled for the petitioner and overturned the denial of the petition.  In doing so, the AAO stated “Were we to construe the regulations to require an HHS designation only under a program that ended in 2008, we would frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas.”

This decision has been applauded by organizations that are concerned about the provision of healthcare in these medically underserved areas, including the American Immigration Lawyers Association and the International Medical Graduate Taskforce (IMGT).  HSPRD partner Ian Wagreich was one of the authors of an amicus brief that was cited by the AAO in its decision.  We will continue to monitor the progress of this issue.  Please feel free to contact Ian at (312) 604-2726 or iwagreich@hsprd.wpengine.com if you have any questions.


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