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Administrative Appeals Office Approves National Interest Waiver for Specialty Care Physician

Upholds Principle that Agency Interpretation Must be Consistent with Congressional Intent

Released on Wed, Feb 17, 2016

Washington, D.C. – The American Immigration Council applauds the Administrative Appeals Office’s (AAO) decision to withdraw the Texas Service Center Director’s (TSC) restrictive interpretation in Matter of H-V-P-, a case involving a national interest waiver. The TSC decision would have prevented a specialty care physician (hematology-oncology) from providing medical care in a community that has a government-designated shortage of health care professionals.

To obtain an employment-based visa in most categories, a noncitizen usually needs a job offer from a U.S. employer. However, in Matter of H-V-P-, the AAO recognized that the law requires USCIS to waive the job offer requirement for both primary and specialty care physicians who work full-time in an area with a shortage of health care professionals(and meet other requirements not at issue here).The AAO also concluded that TSC’s narrow interpretation of an implementing regulation as requiring a specific specialty care shortage certification was inconsistent with past USCIS practice and would “frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas.”

In reaching this conclusion, the AAO adopted many of the arguments in an amicus brief submitted by the Council, AILA and the International Medical Group Taskforce. 

TSC’s denial is another example of a culture of “no,” that takes the most restrictive interpretation of a law without regard to the law’s purpose or to the detrimental impact of its decision on individuals and businesses in the United States. The AAO’s resounding rejection of TSC’s attempt to change a longstanding agency interpretation with a single decision is a most welcome development.
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For more information, contact Wendy Feliz at wfeliz@immcouncil.org or 202-507-7524

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