I Am a Medical Physicist – Can I File for a Green Card under the EB-2 NIW Category?

I Am a Medical Physicist – Can I File for a Green Card under the EB-2 NIW Category?

The National Interest Waiver (NIW) is an employment based green card category based on a waiver of the job offer and the labor certification (PERM) process if it is in the national interest of the United States. The NIW falls under EB-2 category. For more information about the NIW, please click here.

A wide range of fields of endeavor may qualify, including business, entrepreneurship, science, technology, culture, health, and education. The waiver of the job offer and labor certification makes the NIW an attractive green card category. This blog post focuses on the job of medical physicist and the applicability of the NIW for this profession.  First, what does a Medial Physicist do?  They use a variety of analytical, computer-aided and bioengineering techniques in their work such as radiotherapy, x-ray imaging, ultrasound, tomography, radiology, nuclear magnetic resonance imaging and lasers to work with patients.

The analytical framework for qualification for the NIW category was explained in Matter of Dhanasar, a case decided in 2016 by the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS). Dhanasar replaced the previous NIW framework that had been established in 1998, in Matter of New York State Dep’t of Transp. [NYSDOT].

Dhanasar established three new prongs that must be satisfied to meet the NIW standard:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance;
  2. The foreign national is well-positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

How May a Medical Physicist Satisfy the “Substantial Merit and National Importance” Prong of Dhanasar?

For the first factor, the Dhanasar standard requires that the applicant show that the proposed endeavor has both substantial merit and national importance. A Medical Physicist who operates highly specialized medical equipment related to the treatment of cancer would satisfy this prong, as cancer affects almost every American, either personally or through a loved one. In 2018 alone, an estimated 1.7 million new cases of cancer will be diagnosed in the United States, and 609,640 people will die from the disease. It is of paramount importance to the United States to reduce the instances and deaths affecting so many Americans, as demonstrated by Congress’ authorizing a budget of $5.665 billion in fiscal year 2018 to the National Cancer Institute. A Medical Physicist’s endeavor to use his special knowledge and skills to administer medical treatments that would cut down on the number of deaths related to cancer would have both substantial merit and national importance as determined by the United States government.

How May a Medical Physicist Satisfy the “Well-Positioned to Advance the Proposed Endeavor”?

To determine whether the alien meets this prong of the Dhanasar test, USCIS will look to the alien’s education, skills, knowledge, and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor and the interest of relevant organizations.

A Medical Physicist may satisfy this prong by submitting his educational qualifications, which usually includes completion of a Master’s or Doctorate degree program that is accredited by the Commission on Accreditation of Medical Physics Education Programs (CAMPEP). Acceptance into CAMPEP accredited programs is extremely competitive, with fewer than 250 individuals in the United States successfully graduating from such programs each year. USCIS will also consider the Medical Physicist’s publications in scholarly journals and presentations in professional conferences. The number of citations of the Medical Physicist’s articles is also a factor contributing to USCIS’s determination that the scientist is influential in the field, and therefore has the ability to advance the proposed endeavor. Additionally, although a formal job offer is not required, employment in the Medical Physicist’s field of expertise, for example, at a university hospital or medical facility that specializes in the treatment of cancer, will offer USCIS a clear picture of the Medical Physicist’s plan for future activities, as well as the interest of medical organizations in the alien’s skills as a Medical Physicist. All of these factors would contribute to a positive determination that the foreign national is well-positioned to advance the proposed endeavor.

How May a Medical Physicist Show that “It Would Be Beneficial to the United States to Waive the Requirements of a Job Offer and Labor Certification”?

To meet this prong of the test, USCIS will, among other factors, consider whether the United States would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

At present, there is no cure for cancer. In the case of a Medical Physicist who possesses special skills in operating complicated medical equipment used in the treatment of cancer, the presence of qualified U.S. workers would not affect the benefit of a Medical Physicist’s contributions to cancer treatment. In addition, as more than 600,000 people are dying annually from cancer, the need for those contributions may very well be determined as being sufficiently urgent to warrant forgoing the labor certification process.

If a foreign national satisfies these criteria, USCIS may issue a national interest waiver in its discretion.

Navigating the complexities of case law and current adjudicating trends often requires the expertise of an experienced immigration lawyer. For more information about qualifying for NIW or applying for a green card as a scientist, please contact Scott Legal, P.C.

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May 23rd, 2018|0 Comments

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