On Wednesday May 20, 2020, USCIS updated its Policy Manual to clarify guidance on portability for physicians with an approved immigrant petition based on a national interest waiver (NIW) applying for adjustment of status and the applicability of the two-year foreign residence requirements to certain NIW physicians.
This change was made in Chapter 8 of the Policy Manual, which now reads as follows:
Some physicians with an approved immigrant petition based on an NIW may be subject to the 2-year home residence requirement of INA 212(e). Due to this 2-year home residence requirement and its related waiver, there are additional restrictions on the eligibility of such a physician to transfer his or her adjustment application to a new NIW immigrant petition. Such physicians may seek a waiver of the 2-year home residence requirement under INA 214(l) by agreeing to practice medicine full-time for not less than 3 years in a medically underserved area or a VA health care facility (or engage in medical research or training with a federal agency). This agreement is a contract with a specific health facility or health care organization; if the physician fails to fulfill the terms of that contract, then he or she would again be subject to the 2-year home residence requirement.
An NIW physician may satisfy the requirements to waive the 2-year home residence requirement and the 5 years of service for the NIW at the same time, if the physician’s employment meets the criteria for each. USCIS only allows the transfer of the adjustment application to a new NIW immigrant petition if the NIW physician has already fulfilled the required service for the waiver of INA 212(e) or has obtained a waiver in some other way.
This is a welcome update, as the language in the policy manual previously suggested that all physicians with approved NIW petitions are subject to the two-year home residence requirement as set forth at INA §212(e), and that only J-1 physicians only qualified for the NIW. Any physician can pursue the NIW in accordance with the regulatory requirements at 8 CFR §204.12(1)-(2).
As a reminder, only physicians who complete graduate medical training in J-1 status are subject to the INA §212(e) two-year home residence requirement. Waivers to the home residency requirement can be sought through an interested government agency or state health agency by providing full-time medical service in a federally designated shortage area for at least three years.
 Previously, the USCIS Policy Manual stated: Physicians with an approved immigrant petition based on a national interest waiver (NIW) are subject to the two-year home residence requirement of INA §212(e) and may seek to qualify for waiver of that requirement by providing their medical services for three or five years in a medically underserved area or Department of Veterans Affairs (VA) facility.
 “any physician (namely doctors of medicine and doctors of osteopathy)…shall be granted a national interest waiver…if the physician…who agrees to work full-time (40 hours per week) in a clinical practice for an aggregate period of 5 years” and the service is in a designated medical shortage area.” 8 CFR §204.12(1)- (2).