Civil Action No. 001130PLF
COMPLAINT FOR DECLARATORY
JUDGMENT AND INJUNCTIVE RELIEF
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ABRAHAM, Linzy
3200 Summer Place #A3
Greenville, NC 27834
EL JAMAL, Ossama
13108 Thomasville Circle Apt. D
Tampa, FL 33617
GERONIMO, Eva
Route 1, Box 38
Douglas, Arizona 85607
KARKAIN, Amin
3718 Keagy Road SW
Roanoke, VA 24018
KWAKU, Inger
70 Saint Gregory Street
Dorchester, MA 02124
RAHMAN, Reza
3833 North Oak Street #107
Valdosta, GA 31602
Plaintiffs,
v.
Janet Reno, Attorney General
of the United States of America
950 Pennsylvania Ave. N.W.
Washington D.C. 20530
Doris Meissner, Commissioner
U.S. Immigration and Naturalization Service
425 Eye St. N.W.
Washington D.C. 20536
Donna Shalala, Secretary
Department of Health and Human Services
200 Independence Ave. S.W., Rm. 615-F
Washington D.C. 20201
Richard W. Riley, Secretary
Department of Education
400 Maryland Ave. S.W.
Washington D.C. 20202-0498
Defendants
INTRODUCTION
1. Plaintiffs respectfully request this Court to compel the
Immigration and Naturalization Service ("INS"), in consultation
with the Department of Health and Human Services and the
Department of Education, to fulfill their statutory duty under
§343 of the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA"), codified as §212(a)(5)(C) of the
Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(C), to
issue regulations governing the certification of foreign Medical
Technologists, Medical Technicians, Speech/Language Pathologists
and Physician's Assistants admitted into the United States. It
has been almost four years since this law went into effect, but
the Defendants have yet to issue regulations implementing the
statute, thereby preventing the plaintiffs and thousands of
otherwise eligible foreign Medical Technologists, Medical
Technicians, Speech/Language Pathologists and Physician's
Assistants from becoming permanent residents of the United
States.
JURISDICTION
2. This Court has jurisdiction in the instant case under 28
U.S.C. §1331 (federal question jurisdiction) because the
plaintiffs' claims arise under the laws of the United States,
specifically §103 and §212(a)(5)(C) of the Immigration and
Nationality Act, 8 U.S.C. §1103 and §1182(a)(5)(C). This Court
may grant relief in this action under 28 U.S.C. §1651 (All Writs
Act); 28 U.S.C. §2201 (Declaratory Judgment Act); 28 U.S.C. §1361
(Action in the nature of Mandamus); and under 5 U.S.C. §701 et
seq. (Administrative Procedures Act).
VENUE
3. Venue is proper in this Court under 28 U.S.C. §1391(e)
because a substantial part of the events or omissions giving rise
to the claims occurred in this judicial district.
BACKGROUND
4. The U.S. immigration system divides all non U.S. citizens
into two classifications. Those non U.S. citizens who come to
the United States temporarily to visit for business or pleasure,
to attend school or to work are classified as nonimmigrants. 8
U.S.C. §1101(a)(15). Those non U.S. citizens who come to the
United States to reside permanently are classified as immigrants.
Id. Of the immigrants, those who immigrate to the United States
based on qualifying family- or employer- sponsorship are lawful
permanent residents. 8 U.S.C. §1101(a)(20). Lawful permanent
residence is colloquially known as having a "green card." Only a
lawful permanent resident can reside permanently in the United
States and can apply for U.S. citizenship after a specified
period of time. Id.; 8 U.S.C. §1427(a).
5. With certain exceptions, prospective immigrants who want to
become lawful permanent residents based on employment must
complete the following process. First, his or her employer must
file an application for labor certification with the Department
of Labor ("DOL"). DOL will then direct the employer to test the
labor market for the position offered to the prospective
immigrant. If DOL finds that there are no U.S. workers in the
geographical area who are willing, able and qualified to perform
the job, then it will approve the labor certification. 8 U.S.C.
§1182(a)(5)(A).
6. Once DOL has approved the labor certification, the employer
must then file a Petition for an Immigrant Worker (Form I-140)
with the INS. 8 U.S.C. §1153(b). In order for this petition to
be approved, the employer must show that the sponsored foreign
worker's education, training, license and experience meet or
exceed that required for U.S. workers in the same position, and
that it has the ability to pay the employee. 8 C.F.R. §204.5.
7. Once the I-140 petition is approved, the prospective
immigrant worker can finally apply for permanent residence. He
or she can do this in one of two ways. If the worker is outside
the United States, he or she can apply for an immigrant visa at
the American Consulate in his or her country. 8 U.S.C.
§§1201-1202. If the worker is already in the United States, then
he or she can file an Application for Adjustment of Status to
Permanent Resident (Form I-485) to the INS. 8 U.S.C. §1255.
8. At this stage, the prospective immigrant must show that he
or she is qualified to become a lawful permanent resident of the
United States - i.e. that he has not committed any crimes or will
become a financial burden to the U.S., etc. Section 212 of the
Immigration and Nationality Act ("INA"), 8 U.S.C. §1182,
enumerates the grounds that may disqualify a person from becoming
a lawful permanent resident.
9. On September 30, 1996, §343 of the Illegal Immigration
Reform and Immigrant Responsibility Act ("IIRIRA") amended the
Immigration and Nationality Act by adding the following provision
to §212; 8 .U.S.C. §1182:
Section 212(a)(5)(C) of the Immigration and Nationality Act,
8 U.S.C. §1182(a)(5)(C) - Uncertified Foreign Health-Care
Workers
Subject to subsection (r), any alien who seeks to enter the
United States for the purpose of performing labor as a
health-care worker, other than a physician, is excludable
unless the alien presents to the consular officer, or in the
case of an adjustment of status, the Attorney General, a
certificate from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an equivalent
independent credentialing organization approved by the
Attorney General in consultation with the Secretary of
Health and Human Services, verifying that-
the alien's education, training, license and experience-
meet all applicable statutory and regulatory
requirements for entry into United States under the
classification specified in the application;
are comparable with that required for an American
health-care worker of the same type; and
are authentic and, in the case of a license,
unencumbered;
the alien has the level of competence in oral and written
English considered by the Secretary of Health and Human
Services, in consultation with the Secretary of Education,
to be appropriate for health care work of the kind in which
the alien will be engaged, as shown by an appropriate score
on one or more nationally recognized, commercially
available, standardized assessments of the applicant's
ability to speak and write; and
if a majority of states licensing the profession in which
the alien intends to work recognize a test predicting the
success on the profession's licensing or certification
examination, the alien has passed such a test or has passed
such an examination.
For the purpose of clause (ii), determination of the
standardized tests required and of the minimum scores that
are appropriate are within the sole discretion of the
secretary of Health and Human Services and are not subject
to further administrative or judicial review.
10. In short, no foreign healthcare worker can become a lawful
permanent resident of the United States unless and until he or
she obtains a certificate from a credentialing organization
verifying that he or she meets the foregoing requisites. The
statute directs the INS, in consultation with the Department of
Health and Human Services and the Department of Education, to
select and regulate the credentialing organizations that will
issue the certifications.
11. INA §212(a)(5)(C), 8 U.S.C. §1182(a)(5)(C) became effective
on September 30, 1996. Both the INS and the American Consulates
immediately stopped processing I-485 applications for adjustment
of status and immigrant visa applications filed by healthcare
workers and announced that these applications will not be
adjudicated unless and until the INS issued regulations
implementing the statute.
12. On June 6, 1997, INS issued a field memorandum limiting the
certification requirement under INA §212(a)(5)(C), 8 U.S.C.
§1182(a)(5)(C) to seven healthcare occupations specifically
mentioned in the legislative history of the provision. These
occupations are: Nurses, Occupational Therapists, Physical
Therapists, Speech/Language Pathologists, Medical Technologists,
Medical Technicians and Physician Assistants.
13. In 1998, the Defendants were sued by immigrant Nurses and
Occupational Therapists as well as the Commission on Graduates of
Foreign Nursing Schools ("CGFNS") for their failure to issue any
regulations to implement INA §212(a)(5)(C), 8 U.S.C.
§1182(a)(5)(C) two years after the statute's enactment. Mahoney
v. Reno, No. 1:98CV02008SS (D.D.C. 1998); CGFNS v. INS, No.
1:98CV01230SS (D.D.C. 1998). When the INS finally did issue
regulations on October 14, 1998, it only covered nurses and
occupational therapists.
14. On April 30, 1999, INS issued interim regulations on
certification requirements for physical therapists. 64 Fed. Reg.
23174 (April 30, 1999).
15. Almost four years have now passed since INA §212(a)(5)(C); 8
U.S.C. §1182(a)(5)(C) became effective, yet the Defendants still
have not promulgated regulations for the remaining four
healthcare occupations - Speech/Language Pathologists, Medical
Technologists, Medical Technicians and Physician's Assistants.
In the meantime, INS and the American Consulates continue to hold
the I-485 applications for adjustment of status and immigrant
visa applications of these healthcare workers in abeyance. These
healthcare workers, many of whom were educated in the United
States and are already licensed by the states where they work,
are prevented from becoming permanent residents of the United
States because of the Defendants' failure to issue the necessary
regulations.
16. These healthcare workers have been and will continue to be
injured by the Defendants' failure to issue regulations
implementing the certification requirement for their occupations.
Despite the fact that they have been and will continue to provide
valuable medical services in hospitals and other healthcare
facilities throughout the United States, these healthcare workers
are prevented from becoming permanent residents. Because they
are not yet permanent residents, they often have a difficult time
securing mortgages and have to pay more points and a higher
interest rates. Sometimes they are denied mortgages outright.
Because they are not yet permanent residents, the children of
these healthcare workers do not qualify for in-state tuitions and
have to pay the substantially higher international student
tuitions. Because they are not yet permanent residents, they are
prevented from accruing time to qualify for U.S. citizenship.
They cannot change employers. Even with the same employer, they
cannot be promoted, transferred to a different part of the
country, or even have their jobs changed in any substantial way.
If any of the foregoing events does occur, they are forced to
re-start the lengthy immigration process all over again. They
may even lose their opportunity to immigrate altogether if their
current employer merges or is sold to another company.
17. Furthermore, some healthcare workers have watched helplessly
as their children turn 21 and thereby lose the right to immigrate
along with the rest of the family. These children will not be
able to rejoin their family until 1) the healthcare worker
finally becomes a permanent resident, 2) the healthcare worker
petitions for them, then 3) immigrant visas for sons and
daughters of permanent residents become current, which can take
as long as ten years depending on the country of their birth.
Other healthcare workers have been and will continue to be
separated from their families, because their families are outside
the United States waiting for the immigrant visa processing to be
completed before they can join the healthcare worker in the
United States.
PARTIES
I. Plaintiffs
18. Ms. Linzy Abraham is a native of Ghana and a citizen of
Canada. Ms. Abraham received her Master of Science degree in
Speech Language Pathology from the University of North Carolina.
She is licensed to practice as a Speech Language Pathologist by
the North Carolina Board of Examiners for Speech and Language
Pathologists and Audiologists and is certified by the Clinical
Certification Board of the American Speech Language Hearing
Association. As a Speech Language Pathologist for East Carolina
University's Developmental Evaluation Clinic In Greenville, North
Carolina, Ms. Abraham works with children who suffer from speech
language disorders.
19. Ms. Abraham and her employer began her permanent residence
process five years ago when they filed an Application for Labor
Certification with the Department of Labor ("DOL") on October 17,
1995. DOL found that there were no willing, able and qualified
applicants for her position and approved the Labor Certification
on October 24, 1997. Development Evaluation Clinic then filed
the second step of the permanent residence, the I-140 Petition
for Nonimmigrant Worker, with the INS on January 30, 1998. The
I-140 petition was approved on March 13, 1998. Ms. Linzy then
filed the final step of the permanent residence process, I-485
Application for Adjustment of Status to Permanent Residence, on
March 30, 1998. Despite the fact that she is otherwise eligible
to become a permanent resident, the Defendants' failure to issue
regulations implementing certification for Speech Language
Pathologists is preventing Ms. Linzy from becoming a permanent
resident.
20. Mr. Ossama El Jamal is a Palestinian who was born in
Lebanon. Mr. El Jamal received his Bachelor of Science degree in
Medical Technology from the University of South Florida. He is
licensed to practice as a Clinical Laboratory Technologist by the
Florida Board of Clinical Laboratory Personnel and is certified
as a Clinical Laboratory Scientist by The National Certification
Agency for Medical Laboratory Personnel. As a Medical
Technologist for the South Florida Baptist Hospital in Plant
City, Florida, Mr. El Jamal performs medical laboratory tests and
analysis to provide valuable data for the diagnosis, treatment
and prevention of illness and disease.
21. Mr. El Jamal and his employer began his permanent residence
process five years ago when they filed an Application for Labor
Certification with the Department of Labor ("DOL") on November
13, 1995. DOL found that there were no willing, able and
qualified applicants for his position and approved the Labor
Certification on September 18, 1996. South Florida Baptist
Hospital then filed the second step of the permanent residence,
the I-140 Petition for Nonimmigrant Worker, with the INS on
October 21, 1996. The I-140 petition was approved on October 23,
1996. Mr. El Jamal then filed the final step of the permanent
residence process, I-485 Application for Adjustment of Status to
Permanent Residence, on February 10, 1997. Despite the fact that
he is otherwise eligible to become a permanent resident, the
Defendants' failure to issue regulations implementing
certification for Medical Technologists is preventing Mr. El
Jamal from becoming a permanent resident.
22. Ms. Eva Geronimo is a native and a citizen of the
Philippines. Ms. Geronimo received her Bachelor of Science
degree from Far Eastern University in Manila, Philippines. She
is a registered Medical Technologist in the Philippines and
worked as a Medical Technologist in the Philippines for almost
twenty years before she came to work in the United States. She
is certified by the Board of Examiners of the American Medical
Technologists. As a Medical Technologist for the Southeast
Arizona Medical Center in Douglas, Arizona, Ms. Geronimo serves a
community that is one of the thirty most medically underserved
areas in the United States.
23. Ms. Geronimo and her employer began her permanent residence
process five years ago when they filed an Application for Labor
Certification with the Department of Labor ("DOL") on September
27, 1995. Southwest Arizona Medical Center subsequently filed an
I-140 Petition for Immigrant Worker with a request for a waiver
of the labor certification based on national interest on June 13,
1996 because of the critical need for experienced Medical
Technologists such as Ms. Geronimo in Douglas, Arizona. The INS
approved the I-140 petition and the national interest waiver on
February 11, 1997, and Ms. Geronimo and her family filed the
final step of the permanent residence process, the I-485
Application for Adjustment of Status to Permanent Residence, on
March 27, 1997. However, the Defendants' failure to issue
regulations implementing certification for Medical Technologists
is preventing Ms. Geronimo from obtaining her permanent
residence.
24. Mr. Amin Karkain is a native and citizen of the United Arab
Emirates. He received his Bachelor of Science degree as a
Physician Assistant from Howard University in Washington D.C. He
is licensed to practice as a Physician's Assistant by the
Virginia Department of Health Professions. Mr. Karkain is also
certified as a Physician Assistant by the National Commission on
Certification of Physician Assistants.
25. Mr. Karkain and his employer, Columbia Lewis-Gale Medical
Center in Salem, Virginia, began his permanent residence process
three years ago when they filed an Application for Labor
Certification with the Department of Labor ("DOL") on December
24, 1997. DOL found that there were no willing, able and
qualified applicants for his position and approved the Labor
Certification on January 28, 1999. Columbia Lewis-Gale Medical
Center then filed the second step of the permanent residence, the
I-140 Petition for Nonimmigrant Worker, with the INS on March 30,
1999. The I-140 petition was approved on August 4, 1999. Mr.
Karkain then filed the final step of the permanent residence
process, I-485 Application for Adjustment of Status to Permanent
Residence, on October 12, 1999. However, the Defendants' failure
to issue regulations implementing certification for Physician's
Assistants is preventing Mr. Karkain from obtaining his permanent
residence.
26. Ms. Inger Kwaku is a native and citizen of Australia. Ms.
Kwaku received her Master of Science degree in Speech Language
Pathology from McGill University in Montreal, Canada and training
in American Sign Language from Gallaudet University in Washington
D.C. Ms. Kwaku is licensed to practice as a Speech Language
Pathologist in Massachusetts and New York and has received a
Certificate of Clinical Competence from the American Speech
Language Hearing Association.
27. Ms. Kwaku and her employer, TheraKare, Inc. of Broken Arrow,
Oklahoma, began her permanent residence process three years ago
when they filed an Application for Labor Certification with the
Department of Labor ("DOL") on August 14, 1997. DOL found that
there were no willing, able and qualified applicants for his
position and approved the Labor Certification on November 26,
1997. TheraKare then filed the second step of the permanent
residence, the I-140 Petition for Nonimmigrant Worker, with the
INS on March 3, 1998. The I-140 petition was approved on August
4, 1998. Ms. Kwaku then filed the final step of the permanent
residence process, I-485 Application for Adjustment of Status to
Permanent Residence, on November 23, 1998. However, the
Defendants' failure to issue regulations implementing
certification for Speech Language Pathologists is preventing Ms.
Kwaku from obtaining her permanent residence.
28. Mr. Reza Rahman is a native and citizen of Bangladesh. Mr.
Rahman received his Bachelor of Science degree in Medical
Technology from Union College in Lincoln, Nebraska. He is also
certified as a Medical Technologist by the American Society of
Clinical Pathologists.
29. Mr. Rahman and his employer, South Georgia Medical Center of
Valdosta, Georgia, began his permanent residence process five
years ago when they filed an Application for Labor Certification
with the Department of Labor ("DOL") on July 10, 1995. DOL found
that there were no willing, able and qualified applicants for his
position and approved the Labor Certification on April 2, 1996.
South Georgia Medical Center then filed the second step of the
permanent residence, the I-140 Petition for Nonimmigrant Worker,
with the INS on April 23, 1996. The I-140 petition was approved
on May 1, 1996. Mr. Rahman then filed the final step of the
permanent residence process, I-485 Application for Adjustment of
Status to Permanent Residence, on November 6, 1996. However, the
Defendants' failure to issue regulations implementing
certification for Medical Technologists is preventing Mr. Rahman
from obtaining his permanent residence.
II. Defendants
30. Defendant Janet Reno is the Attorney General of the United
States. The Attorney General is responsible for the
administration and enforcement of the Immigration and Nationality
Act ("INA"). 8 U.S.C. §1103. In particular, INA §212(a)(5)(C),
8 U.S.C. §1182(a)(5)(C) charges the Attorney General with the
responsibility for issuing regulations to implement this
provision of the law.
31. Defendant Doris Meissner is the duly appointed Commissioner
of the Immigration and Naturalization Service, a federal agency
within the Department of Justice that is responsible for the
administration and enforcement of the Immigration and Nationality
Act, including the implementation of regulations under INA
§212(a)(5)(C), 8 U.S.C. §1182(a)(5)(C).
32. Defendant Donna Shalala is the Secretary of the Department
of Health and Human Services ("HHS"). INA §212(a)(5)(C), 8
U.S.C. §1182(a)(5)(C) charges the Attorney General to consult
with the Secretary of HHS in issuing the regulations implementing
this provision.
33. Defendant Richard Riley is the Secretary of the Department
of Education. INA §212(a)(5)(C), 8 U.S.C. §1182(a)(5)(C) charges
the Attorney General to consult with the D of E Secretary in
issuing the regulations implementing this provision.
CAUSES OF ACTION
34. The Plaintiffs incorporate paragraphs 1 through 33 above as
if set forth in full.
35. Section 103 of the Immigration and Nationality Act, 8 U.S.C.
§1103(a)(1) charges the Defendant Attorney General with "the
administration and enforcement of the Act and all other laws
relating to the immigration and naturalization of aliens." In
particular, §103(a)(3), 8 U.S.C. §1103(a)(3) states that the
Attorney General "shall establish such regulations ... as he
deems necessary for carrying out his authority under the
provisions of this Act." (emphasis added).
36. Section 103(c) of the Immigration and Nationality Act, 8
U.S.C. §1103(c) charges the Defendant Commissioner of the
Immigration and Naturalization Service with "any and all
responsibilities and authority in the administration of the
Service and this Act which are conferred upon the Attorney
General as may be delegated to [her] by the Attorney General or
which may be prescribed by the Attorney General."
37. Section 212(a)(5)(C) of the Immigration and Nationality Act,
8 U.S.C. §1182(a)(5)(C), charges the Attorney General, in
consultation with the Defendant Secretary of Health and Human
Services and the Defendant Secretary of Department of Education,
to approve independent credentialing organizations which can then
certify that foreign healthcare workers applying for admission to
the United States have met the requirements set forth by that
provision of the law.
38. However, despite the fact that almost four years have passed
since §212(a)(5)(C) of the Immigration and Nationality Act, 8
U.S.C. §1182(a)(5)(C), was enacted, the Defendants have failed to
issue regulations implementing the certification requirement for
four occupations of healthcare workers - Medical Technologists,
Medical Technicians, Speech Language Pathologists and Physician's
Assistants. The Defendants' failure to issue the regulations
constitute a clear dereliction of their duty under §103 and
§212(a)(5)(C) of the Immigration and Nationality Act, 8 U.S.C.
§1103 and §1182(a)(5)(C).
39. Section 702 of the Administrative Procedures Act ("APA")
states that "[a] person suffering legal wrong because of agency
action, or adversely affected by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof."
Section 551(13) defines "agency action" to include "failure to
act." Furthermore, §706 of the APA directs the reviewing court
to "compel agency action unlawfully withheld or unreasonably
delayed."
40. By failing to issue implementing regulations more than three
years after §212(a)(5)(C) of the Immigration and Nationality Act,
8 U.S.C. §1182(a)(5)(C) was enacted, the Defendants have
unlawfully withheld and/or unreasonably delayed performing a
statutory duty owed to the plaintiffs and thousands of healthcare
workers who are waiting to be admitted to the United States.
This failure on part of the Defendants have injured and will
continue to injure the Plaintiffs because they have been and will
be unable to complete their permanent residence process unless
and until the Defendants issue regulations implementing the
certification provision.
PRAYERS FOR RELIEF
WHEREFORE, these premises considered, the Plaintiffs respectfully
request this Court to:
1. Declare that the Defendants have violated their statutory
duty under §103 and §212(a)(5)(C) of the Immigration and
Nationality Act, 8 U.S.C. §1103 and §1182(a)(5)(C) by failing to
issue regulations implementing certification for certain foreign
healthcare workers under §212(a)(5)(C) of the Immigration and
Nationality Act, 8 U.S.C. §1182(a)(5)(C) almost four years after
the provision was enacted;
2. Declare that the Defendants have unlawfully withheld and/or
unreasonably delayed issuing these regulations;
3. Order the Defendants to issue interim regulations
implementing INA §212(a)(5)(C), 8 U.S.C. §1182(a)(5)(C) within 90
days of the Court's declaration;
4. Order the Defendants to file a report to the Court detailing
the progress of the rulemaking process every 30 days from the
date of the Court's decision;
5. Award the Plaintiffs their attorneys' fees and costs under
the Equal Access for Justice Act, and
6. Grant such other relief as the Court deems just, equitable
and proper.
Respectfully submitted,
American Immigration Law Foundation
___________________________________
J. Traci Hong TX 00793972
___________________________________
Elizabeth H. Hamlin DC937250
1300 Eye St. NW, Suite 490E
Washington DC 20005
Tel: (202) 371-6450
Fax: (202) 371-6459
Counsel for the Plaintiffs
Schedule A Legal Consultation
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