Carl Shusterman, CA Bar #58298
Attorney at Law
Law Offices of Carl Shusterman
One
Telephone (213)623-4592
Facsimile (213)623-3720
Attorney for Plaintiffs
UNITED STATES
DISTRICT COURT
CENTRAL DISTRICT
OF
STEFAN SCHNEIDER, ANWAR TANDAR, )
KOMSU MAMUYA, MUHAMMAD AIJAZ )
SATTAR, SANDEEP HARBANS JAIN, )
MAHESH KRISHNAMOORTHY, SARAVANAN
)
KASTHURI, and BOGDAN NEDELESCU, )
)
Plaintiffs, ) Case No. CV
02-9228
)
v. )
)
AMENDED COMPLAINT FOR
JOHN ASHCROFT, Attorney General, ) DECLARATORY AND
MICHAEL GARCIA, Acting Commissioner of the )
INJUNCTIVE RELIEF
Immigration and Naturalization Service, )
and THE IMMIGRATION AND NATURALIZATION )
SERVICE, )
Defendants )
________________________________________________)
Plaintiffs, by and through their undersigned counsel, sue the
defendants and allege as follows:
I. INTRODUCTION
1. On
2. The law applies to “any alien physician,”
and requires that he serve for a certain number of years, either “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.”
3. The law provides that “the
Attorney General shall grant a national interest waiver” to any alien physician
who qualifies. It further provides that
permanent residence may be granted to a physician once a national interest waiver
has been approved and he has fulfilled his required period of medical service.
4. On
5. The interim rule defeats the
intent of the law by contradicting its clear language by arbitrarily excluding
certain classes of physicians from qualifying for benefits. In addition, the
rule attempts to amend or repeal the law by imposing a number of impermissible
and unduly burdensome requirements upon physicians who wish to apply for
national interest waivers and permanent residence.
II. JURISDICTION
6. This Court has subject matter
jurisdiction of this action under 28 U.S.C. §1331 (federal question
jurisdiction) because plaintiffs’ claims arise under the laws of the
7. There are no administrative
remedies available to plaintiffs to redress the grievances described herein.
This action challenges the defendants’ regulations, procedural policies,
practices, and interpretations of law, not the granting or denial of individual
applications. Therefore, the jurisdictional limitations of INA § 242, 8 U.S.C.
§1252 are not applicable.
III. VENUE
8. Venue is proper in this Court
under 28 U.S.C. §1391(e) because this is a civil action in which the defendants
John Ashcroft and Michael Garcia are officers of the United States acting in
their official capacities and the INS is an agency of the United States; and
because plaintiffs Stefan Schneider and Sean Thomas reside in this judicial
district.
IV. DEFENDANTS
9. John
Ashcroft is the Attorney General of the
10. Michael
Garcia is the acting Commissioner of the INS. He is charged with any and all
responsibilities and authority in the administration of the INS as have been
delegated or prescribed by the Attorney General. He is sued in his official
capacity. The INS is an agency of the
V. STATUTORY FRAMEWORK
11. Pursuant
to INA §203(b)(2)(B)(ii)(I); 8 U.S.C. §1153(b)(2)(B)(ii)(I), “the Attorney General shall grant a national
interest waiver…on behalf of any alien physician with respect to whom a
petition for preference classification has been filed…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.”
12. Pursuant to INA §203(b)(2)(B)(ii); 8 U.S.C. §1153(b)(2)(B)(ii) an alien physician must practice in a shortage area
or facility under the jurisdiction of the Secretary of Veterans Affairs for
either an aggregate of five or three years-
“No permanent resident visa may be issued to an
alien physician…and the Attorney General may not adjust the status of such an
alien physician from that of a nonimmigrant alien to that of a permanent
resident alien…until such time as the alien has worked full time as a physician
for an aggregate of 5 years (not including the time served in the status of an
alien described in section 1101(a)(15(J) of this title)…” INA §203(b)(2)(B)(ii)(II);
8 U.S.C. §1153(b)(2)(B)(ii)(II).
“In the
case of a physician for whom an application for a waiver was filed…prior to
November 1, 1998, the Attorney General shall grant a national interest
waiver…except that the alien required to have worked full time as a physician
for an aggregate of 3 years (not including time served in the status of an
alien described in section 1101(a)(15)(J) of this title…” INA §203(b)(2)(B)(ii)(IV);
8 U.S.C. §1153(b)(2)(B)(ii)(IV).
VI. THE INTERIM RULE CONTRADICTS THE CLEAR LANGUAGE
OF THE LAW
13. The
statute states that it applies to “any alien physician.” INA §203(b)(2)(B)(ii)(I); 8 U.S.C.
§1153(b)(2)(B)(ii)(I). The interim rule restricts the benefits of the law to
primary care physicians except
in the case of physicians directly employed
by the Veterans Administration (“VA”). 8
C.F.R. §204.12(a).
14. The law provides that
the required period of service for a physician who had a national interest
waiver submitted on his behalf prior to
15. The law provides
that, generally, a physician must serve for “an aggregate of 5 years” in order
to qualify for permanent residence through a national interest waiver. INA §203(b)(2)(B)(ii)(II);
8 U.S.C. §1153(b)(2)(B)(ii)(II).
The interim rule arbitrarily provides different start dates for this
service requirement depending on irrelevant factors, including the type of
temporary working status the physician possessed and when he obtained an
employment authorization document from the INS. For some of these physicians,
the service requirement begins when they change status from exchange visitor
(“J-1”) to specialty occupation (“H-1B”). For others, all service for the VA or
in a medically underserved area is disregarded until a national interest waiver
is approved by the INS. 8 C.F.R. §245.18(e). The result is that some physicians
are required to serve far longer than the “aggregate of 5 years” mandated by
the statute.
16. Although the law
imposes no limitation on how long the physician has to meet the service
requirement, the interim rule provides that the physician must fulfill the
five-year requirement within six years, and the three-year requirement within
four years. 8 C.F.R. §245.18(e). While the supplementary information provided by
the INS in the Federal Register, 65 Fed. Reg. 53890 recognizes that there may
be situations beyond the physician’s control which may interrupt his or her
progress toward meeting the requirement in a timely fashion (e.g. pregnancy,
illness, termination of employment, etc.), the interim rule does not provide
for any waivers or exceptions even where such exceptional circumstances arise.
17. Also, in contravention of the
law, the interim rule creates a complex double compliance system whereby the
petitioner (often the physician’s employer) for a national interest waiver must
apprise the INS of the physician’s progress toward fulfilling the five-year
service requirement within 120 days after the first two years have elapsed, and
again within 120 days after the five years have elapsed. 8 C.F.R. §245.18(f), (g). Should the employer not submit the required
information in a timely fashion, not only will the physician’s application for
permanent residence be denied, but the national interest waiver petition
submitted on his behalf will be revoked. 8 C.F.R. §245.18(i). Generally, the physician
will be rendered unlawfully in the United States and subject to deportation.
18. The interim rule requires that whenever
a physician changes the location of his employment, he must have an additional
national interest waiver petition submitted on his behalf. 8 C.F.R. §204.12(f).
Such a requirement has no basis in the statute.
19. The statute requires that a
national interest waiver may be approved only where “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.” INA §203(b)(2)(B)(ii)(I)(bb); 8 U.S.C. §1153(b)(2)(B)(ii)(I)(bb). The
interim rule, however, modifies this requirement in two important aspects. It
requires that any non-Federal determination be issued not by “a department of
public health in any State,” but by a “State department of public health,”
thereby excluding regional and local health departments from submitting “public
interest” letters. 8 C.F.R. § 204.12(c)(3). Also, for reasons which are unclear
and unsupported by the statutory language, the rule requires that the public interest
letter must include an endorsement of the physician’s practice capabilities,
and that the Federal or State agency must establish its competence to issue
such a practice standard evaluation. 8 C.F.R. §204.12(c)(3)(i).
VII. PLAINTIFFS
AND INTERESTS AFFECTED
A. Physicians Who Are Specialists
20. Plaintiff Stefan Schneider, M.D.
is a resident of
21. Plaintiff Saravanan Kasthuri,
M.D. is a resident of
B. Physicians Who Filed National
Interest Waiver Petitions Before
22.
Plaintiff Sandeep Harbans Jain, M.D. is a resident of
23. Plaintiff
Muhammad Sattar, M.D. is a resident of
24. Plaintiff Anwar Tandar, M.D. is a resident
of
C. Physicians
Who Despite Practicing In A Medically Underserved
Area Will
Not Have Their Period Of Service Commence Until
The
Defendants Approve Their NIW Petitions
25. Plaintiff
Mahesh Krishnamoorthy, M.D. is a resident of
26.
Plaintiff Komsu Mamuya, M.D. is a resident of
27. Plaintiff
Bogdan Nedelescu, M.D. is a resident of
28. Plaintiff Anwar Tandar, M.D. (see
Paragraph 24, above) has been employed as a physician
in an underserved area since July 1997, in H-1B status. The law
provides that Dr. Tandar must serve “an aggregate of 3 years” in order to be
eligible to adjust his status to that of a lawful permanent resident. The interim rule requires
that Dr. Tandar must wait until
D. Physicians
Who Obtain A Public Interest Letter
From A
Department Of Public Health
29. Plaintiff Muhammad
Sattar, M.D. (see Paragraph 23, above) has obtained public interest letters from
both the Latimer and the Leflore County Health Departments. Contrary to the
clear language of the statute, which provides that a “department of public
health in any State” may certify that a physician’s work is in the public
interest, the INS’s interim rule only recognizes letters from state departments
of public health, thereby excluding city, county, and regional health
departments. Dr. Sattar has no remedy to compel the defendants to accept the
letter from the county Health Departments, other than through this lawsuit.
WHEREFORE, plaintiffs request that this Court grant the following relief:
1. Declare that certain
portions of the interim rule of
2. Permanently enjoin the defendants from enforcing such rules;
3. Order the defendants to publish new interim rules which are in accordance with the statutory language of §5 of the Nursing Relief Act within 30 days;
4. Retain jurisdiction over each plaintiff’s case;
5. Award appropriate attorney’s fees and costs to the plaintiffs under the Equal Access to
Justice Act, and
6. Grant such other relief as the Court deems just, equitable and proper.
Respectfully
submitted,
______________________
Dated:
Attorney at Law
Law Offices of Carl Shusterman
One
Telephone
(213)623-4592
Facsimile (213)623-3720