The Petitioner, a physician, seeks second preference immigrant classification as a member of the professions holding an advanced degree, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). Section 203(b)(2)(B)(ii) of the Act provides that such a waiver shall be afforded to a physician who meets several conditions , including that a Federal agency or a state department of public health has determined that his work was in the public interest.
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not provided the required determination from the department of public health in his state indicating that his work was in the public interest.
On appeal, the Petitioner submits additional evidence and a brief asserting that he is eligible for a physician national interest waiver. In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will sustain the appeal.
Law
Section 203(b) of the Act states, in pertinent part:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -(A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the p. 2 sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of job offer -
(i) National interest waiver. Subject to clause (ii), the Attorney General1 may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
(ii) Physicians working in shortage areas or veteran facilities.
(1) In general. The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) if -(aa) the alien physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and (bb) a Federal agency or a department of public health in any State has previously determined that the alien physician's work in such an area or at such facility was in the public interest.
As indicated above, section 203(b)(2)(B)(ii)(l)(aa) of the Act provides a national interest waiver for certain physicians who agree to work in an area designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdictionoftheSecretaryofVeteransAffairs. Inaddition,section203(b)(2)(B)(ii)(l)(bb)statesthat the physician must show that a Federal agency or a state department of pubIic health has previously determined that his work in such an area or at such a facility was in the public interest.
Furthermore, the implementing regulations at 8 C.F.R. § 204.12 set forth the evidentiary requirements to establish eligibility for the physician national interest waiver. Specifically, as relevant here, the regulation at 8 C.F.R. § 204.12(c)(3) provides that a petitioner must submit "[a] letter (issued and dated within 6 months prior to the date on which the petition is filed) from a Federal agency or from the department of public health (or equivalent) of a State or territory of the United States or the District of Columbia, attesting that the alien physician's work is or will be in the public interest."
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Analysis
The record indicates that the Petitioner qualifies as a member of the professions holding an advanced degree. The remaining issue is whether he meets the requirements for a physician national interest waiver set forth in section 203(b)(2)(B)(ii)(l)(bb) of the Act and the implementing regulation at 8 C.F.R. § 204.12(c)(3).
The Petitioner initially provided a September 2017 letter from the I IDepartment of Health indicating that he will be practicing at University! Iin a Health Professional Shortage Area and a Medically Underserved Area. This letter further stated: "[The Petitioner] will be providing direct patient care sfrvices aminimum of 40 hours aweek beginning August 28, 2017, to the medically underserved in_ Iand surrounding communities. The IDepartment of Health supports the national interest waiver to be filed on behalf of [the Petitioner]." In denying the petition, the Director noted that the letter presented from thel IDepartment of Health "did not attest that [the Petitioner's] work was in the public interest as required by the regulation.. .. Although the letter attests that [the Petitioner] will work in a medically underserved area, it does not include language that attests to [his] work being in the public interest."
With t h ~ , the Petitioner submits an April 2019 letter froml IState Primary Care Officer,L__JDepartment of Health, stating: '1 IDepartment of Health supports the national interest waiver application and finds it in the public interest for [the Petitioner] to practice aOHealth I ~ In conjunction with the initial letter, this updated letter clarifying that the Petitioner's I
The Petitioner has overcome the Director's basis for denial and established he is eligible for a national interest waiver. ORDER: The appeal is sustained.