Carl Shusterman, CA Bar #58298
Attorney at Law
Law Offices of Carl Shusterman
One
Telephone (213)623-4592
Attorney for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF
STEFAN SCHNEIDER, ANWAR TANDAR, ) CV No.02-9228 DSF(JWJx)
KOMSU MAMUYA, MUHAMMAD AIJAZ )
SATTAR, SANDEEP HARBANS JAIN, )
MAHESH KRISHNAMOORTHY, SARAVANAN ) 1. PLAINTIFFS
KASTHURI, and BOGDAN NEDELESCU, ) MEMORANDUM
OF
)
POINTS AND
Plaintiffs, )
AUTHORITIES IN
) SUPPORT OF MOTION
v. ) FOR SUMMARY )
JUDGMENT
JOHN ASHCROFT, Attorney
General, )
MICHAEL GARCIA, Acting Commissioner of the ) DATE:
Immigration and Naturalization Service, and THE
) TIME:
IMMIGRATION AND NATURALIZATION )
SERVICE, ) COURTROOM: TBA
)
Defendants.
)
___________________________________________ ) Honorable Dale S. Fischer
MEMORANDUM
OF POINTS AND AUTHORITIES
TABLE OF CONTENTS
TABLE OF AUTHORITIES.............................................................................. iv
MEMORANDUM OF POINTS AND AUTHORITIES....................................... 1
I. SUMMARY OF ARGUMENT........................................................................ 1
II. FACTS.......................................................................................................... 6
III. THE INTERIM RULE UNLAWFULLY IGNORES A PHYSICIANS PRACTICE
IN A MEDICALLY UNDERSERVED AREA PRIOR TO CIS
APPROVAL OF THE NATIONAL INTEREST WAIVER, ISSUANCE OF THE EMPLOYMENT
AUTHORIZATION DOCUMENT, OR WHEN THE PHYSICIAN CHANGES FROM J-1 STATUS TO H-1B
STATUS.................................................................................................... 11
IV. A PHYSICIAN WHO IS A
BENEFICIARY OF A NATIONAL INTEREST WAIVER PETITION FILED PRIOR TO NOVEMBER 1,
1998 QUALIFIES TO APPLY FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENT UNDER
THE THREE-YEAR MEDICAL SERVICE OBLIGATION.......................................................... 15
V.
THE
INTERIM RULE UNLAWFULLY IMPOSES A LIMITATION ON THE TIME WITHIN WHICH THE PHYSICIAN MUST COMPLETE
EITHER THE THREE-YEAR OR FIVE-YEAR MEDICAL SERVICE REQUIREMENT............................................ 17
VI.
THE INTERIM RULE UNLAWFULLY EXCLUDES SPECIALISTS FROM RECEIVING THE BENEFITS UNDER THE LAW ..................................... 18
VII. THE INTERIM RULE
CONTRAVENES THE
STATUTE BY REQUIRING
THAT THE PUBLIC INTEREST ATTESTATION STATEMENT BE ISSUED BY A STATE DEPARTMENT
OF HEALTH AS OPPOSED TO A DEPARTMENT OF PUBLIC HEALTH IN ANY STATE......................................................................... 20
VIII. THE INTERIM RULE CREATES AN
INAPPROPRIATE DOUBLE COMPLIANCE SYSTEM TO ENSURE FULFILLMENT OF THE REQUIRED
PERIOD OF MEDICAL SERVICE.................................................................................................... 22
IX. THE REQUIREMENT THAT A PHYSICIAN WHO
RELOCATES JOBS MUST HAVE AN ADDITIONAL NATIONAL INTEREST WAIVER SUBMITTED ON
HIS BEHALF IS EXCESSIVE AND UNSUPPORTED BY THE STATUTE........................... 23
X. CONCLUSION .......................................................................................... 25
XI. EXHIBITS
1. Documents Relating to Plaintiff
Tandar...................................................... 26
2. Documents Relating to Plaintiff
Sattar........................................................ 36
3. Documents Relating to Plaintiff
Jain........................................................... 53
4. Documents Relating to Plaintiff
Schneider................................................. 71
5. Documents Relating to Plaintiff
Mamuya................................................... 81
6. Documents Relating to Plaintiff
Krishnamoorthy........................................ 90
7. Documents Relating to Plaintiff
Nedelescu................................................. 98
8. Documents Relating to Plaintiff
Kasthuri.................................................. 106
TABLE OF AUTHORITIES
CASES PAGE
Chevron v. Natural Res. Def. Council, 467
INS v. Cardoza-Fonseca, 480
INS v. St. Cyr, 533
Perrin v. United States., 444
Watson v. Proctor (In re: Watson), 161 F.3d 593 (9th Cir. 1998)
14
FEDERAL REGISTER PAGE
65 Fed. Reg. 53889-53896 (
REGULATIONS PAGE
8 C.F.R. §204.12(a) ....................................................................................... 3,
5
8 C.F.R. §204.12(a)(2) ..................................................................................... 19
8 C.F.R.
§204.12(a)(2)(i)
.20
8 C.F.R. §204.12(b) ......................................................................................... 12
8 C.F.R. §204.12(b)(1) ................................................................................. 4,
17
8 C.F.R. §204.12(b)(2) ................................................................................. 4,
17
8 C.F.R. §204.12(c)(3) ................................................................................. 6,
21
8 C.F.R.
§204.12(c)(3)(i)
.22
8 C.F.R. §204.12(d)(3)
..5
8 C.F.R. §204.12(d)(4) ................................................................................. 5,
16
8 C.F.R. §204.12(d)(5) ..................................................................................... 16
8 C.F.R. §204.12(d)(6) ................................................................................. 5,
16
8 C.F.R.
§204.12(f)(1)
.23
8 C.F.R.
§212.7(c)(9)(i)
...20
8 C.F.R. §245.18
..22
8 C.F.R.
§245.18(a)
.............23
8 C.F.R. §
245.18(e)
..4
8 C.F.R. §245.18(e)(1) ....................................................................................... 4
8 C.F.R.
§245.18(e)(2)
...4, 12, 13
8 C.F.R. §245.18(f) ................................................................................ 9,
10, 13
8 C.F.R. §245.18(g)
.23
42 C.F.R. §5.1, Appendix A.............................................................................. 19
STATUTES PAGE
American Competitiveness in the Twenty-First Century Act (AC21)
Pub. L. No. 106-313, also codified at 8 U.S.C.
§1154(j)
..24
Immigration and Nationality Act of 1952, as amended, §
203(b)(2)(B)(ii), also codified at 8 U.S.C.
§1153(b)(2)(B)(ii)
......1
Immigration and Nationality Technical
Corrections Act of 1994 (INTCA)
Pub. L. No.
103-416
..20
Nursing Relief for Disadvantaged
Areas Act of 1999 (NRDAA)
Pub. L. No. 106-95, 113 Stat.
1312
...1, 15, 20, 25
Omnibus Budget Reconciliation Acts of
1989, Pub. L. 101-239, §6012(c)
20
8 U.S.C. §1101(a)(15)(H)
...6
8 U.S.C.
§1101(a)(15)(H)(i)(c)
.20
8 U.S.C.
§1101(a)(15)(J)
12, 16
8 U.S.C.
§1101(a)(15)(O)(i)
...9
8 U.S.C.
§1153(b)(2)
.22
8 U.S.C. §1153
(b)(2)(B)
2, 22, 24
8 U.S.C.
§1153(b)(2)(B)(ii)
1, 2, 11, 17, 18, 25
8 U.S.C.
§1153(b)(2)(B)(ii)(I)
..1, 19
8 U.S.C. §1153(b)(2)(B)(ii)(I)(bb)
6, 21
8 U.S.C. §1153(b)(2)(B)(ii)(II)
...2, 4
8 U.S.C. §1153(b)(2)(B)(ii)(IV)
.2, 15, 16
8
U.S.C. §1154(j)
..24
8 U.S.C. §1182(e)
...7, 18,
21
8 U.S.C. §1182(e)(iii)..
.21
8 U.S.C. §1182(l)
4
8 U.S.C. §1182(m)(6)
...20
8 U.S.C. §1184(l)
12, 18
8 U.S.C. §1184(2)
.21
8 U.S.C. §1186a(a)
23
8 U.S.C. §1186(b)
.23
42 U.S.C.§1395l(m)
..20
This is an action to make consistent the
Immigration and Naturalization Services (now called the U.S. Citizenship and Immigration Services, CIS) rule of
September 6, 2000 (65 Fed. Reg. 53889-53896) with Section 5 of the Nursing
Relief for Disadvantaged Areas Act of 1999 (NRDAA), Pub. L. 106-95, 113 Stat.
1312. Plaintiffs request that this Court
strike down those sections of the rule, which are inconsistent with the
statute.
Section 5 of the NRDAA amended Section
203(b)(2)(B)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. §
1153(b)(2)(B)(ii), to permit any alien physician who fulfills certain
specified conditions to adjust his or her status to permanent resident based on
a national interest waiver petition (NIW).
The law provides that
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.
8 U.S.C.
§1153(b)(2)(B)(ii)(I).
Thus, under 8
U.S.C. § 1153(b)(2)(B), in order to adjust status based on an approved NIW
petition, a physician must:
(1) work full time
in an area designated by the Secretary of Health and Human Services as having a
shortage of healthcare professionals, or at a facility under the jurisdiction
of Veterans Affairs; and
(2)
have a determination by a Federal agency or a department of public health in
any State that his or her work is in the public interest; and
(3) serve full
time for an aggregate of five years; or
(4) if the
physician had an NIW petition filed on his behalf prior to
8 U.S.C. §1153(b)(2)(B)(ii).
The CIS has published a rule to implement
this statute. See, 65 Fed. Reg. 53889-53896 (
The rule provides that an alien physician
shall be granted an NIW if:
(1) The physician
agrees to work full-time (40 hours per week) in a clinical practice for an
aggregate of 5 years
; and
(2) The service is
(i)
In a geographical area or areas designated by the Secretary of Health and Human
Services (HHS) as a Medically Underserved Area, a Primary Medical Health
Professional Shortage Area, or a Mental Health Professional Shortage Area, and
in a medical specialty that is within the scope of the Secretarys designation
for the geographical area or areas; or
(ii)
At a health care facility under the jurisdiction of the Secretary of Veterans
Affairs (VA); and
(3) A Federal
agency or the department of public health of a State
has previously
determined that the physicians work in that area or facility is in the public
interest.
8 C.F.R.
§204.12(a) [emphasis added].
Additionally the rule provides that
(1) If the physician already has authorization to
accept employment (other than as a J-1 exchange alien), the beneficiary
physician must complete the aggregate 5 years of qualifying full-time clinical
practice during the 6-year period beginning on the date of approval of the Form
I-140 [NIW petition].
(2) If the physician must obtain
authorization to accept employment before the physician may lawfully begin
working, the physician must complete the aggregate 5 years of qualifying
full-time clinical practice during the 6-year period beginning on the date of
(sic) the Service issues the necessary employment authorization document.[1]
8 C.F.R. §
204.12(b)(1), (2) [emphasis added].
The
rule unlawfully restricts the application of 8 U.S.C. §1153 in a number of
ways. The statute provides that a physician
must work full time in a medically underserved area for an aggregate of five or
three years, not including the time served (in J-1 status). 8 U.S.C.
§1153(b)(2)(B)(ii)(II). However, the
rule requires:
(1) Generally, the CIS will not count
the physicians medical service requirement until the date that the agency
approves an NIW petition on his behalf. 8 C.F.R. §245.18(e).
(2) However, if a physician does not
already have employment authorization, his period of medical service begins on
the date that the CIS issues an employment authorization document. 8 C.F.R. §
245.18(e)(1).
(3) If a physician formerly held J-1
status and obtained a waiver of the home residence requirement and a change to
H-1B status, pursuant to 8 U.S.C. § 1182(l), his period of service begins on
the date he changes status from J-1 to H-1B.
8 C.F.R. § 245.18(e)(2).
Thus, the
rule impermissibly sets forth a system for calculating when a physicians five
or three-year medical service requirement begins based on the physicians nonimmigrant
status, and whether he must obtain employment authorization.
Further,
the statute states that a physician who had an NIW petition filed on his behalf
prior to
(1) NIW petitions which were filed
prior to November 1, 1998, and denied on or after November 12, 1999, but prior
to the effective date of the rule (October 6, 2000). These petitions would be reopened by the
CIS. 8 C.F.R § 204.12(d)(3).
(2) NIW petitions which were filed
prior to
(3) NIW petitions which were filed
prior to
By requiring NIW
petitions which were filed prior to
Also, the rule imposes a fixed time period
within which a physician must complete the five or three year medical service
requirement. The statute does not
contain any such limitation.
The rule restricts the application of the law
to primary care physicians as opposed
to any alien physician by its reference
to Medically Underserved Area, a Primary Medical Health Professional Shortage
Area, or a Mental Health Professional Shortage Area. The statute provides that a physician must
agree to work in an area
designated by the Secretary of Health and Human
Services as having a shortage of health
care professionals... [emphasis added].
Yet, the rule impermissibly changes this to in a geographical area
designated by the Secretary of Health and Human Services (HHS) as a
primary medical health professional shortage area
8 C.F.R. §204.12(a)
[emphasis added].
Finally, the rule
unlawfully restricts who can provide the physician with a letter attesting that
his or her work is in the public interest.
The statute states that a public interest letter may be submitted by
a Federal agency or a department of public health in any State
(emphasis added) 8 U.S.C. § 1153(b)(2)(B)(ii)(I)(bb). The rule, however, limits the agencies who
can provide such letters to a Federal agency or a State department of public
health. (emphasis added) 8 C.F.R. § 204.12(c)(3). This excludes regional and local health
departments and is an impermissible restriction not contemplated by the
statute.
From
On
However, Dr. Tandar falls within the three-year medical
service requirement because his first NIW petition was filed prior to
Since
On
Dr. Sattar has
practiced in a medically underserved area from July 23, 1996 to the present,
and contends that he has complied not only with the three-year, but also the
five-year, medical service requirement, and that he
is immediately eligible to adjust his status to permanent resident.
From 1994 to 1998,
Dr. Sandeep Harbans Jain was employed as a physician at the Long Island Jewish
Medical Center, located in New Hyde Park, New York, a medically underserved
area, in H-1B status.
(See Exhibit 3, pp. 58-61). On
On
Dr. Jain contends that: (1) he is
subject to the three-year medical service requirement as he had an NIW petition
filed prior to November 1, 1998; (2) he has
practiced in a medically underserved area since 1994, and therefore has already
completed his three-year medical service requirement; and (3) he contends that he is
immediately eligible for adjustment of status to permanent residence pursuant
to the statute.
From
Dr.
Schneider has been practicing in a medically underserved area since
E. Dr. Komsu Mamuya
Since
On
Since
Dr. Krishnamoorthy
contends that his five-year medical service requirement began on
From
Dr. Nedelescu
contends that his five-year medical service requirement began on
On
Dr. Kasthuri
contends that contrary to the rule that excludes physicians who are specialists
from benefits under the law, the statute conveys benefits to any physician,
including specialists. Therefore, his
NIW petition should be approved.
III. THE INTERIM RULE UNLAWFULLY IGNORES A
PHYSICIANS PRACTICE IN A MEDICALLY UNDERSERVED AREA PRIOR TO CIS APPROVAL OF THE NATIONAL
INTEREST WAIVER, ISSUANCE OF THE EMPLOYMENT AUTHORIZATION DOCUMENT, OR WHEN THE
PHYSICIAN CHANGES FROM J-1 STATUS TO H-1B STATUS
To be eligible for adjustment of
status to permanent resident, a physician must have worked full time as a
physician in a medically underserved area for an aggregate of either three or
five years. 8 U.S.C. § 1153(b)(2)(B)(ii). The statute places no restriction as to when the aggregate medical service
period commences, other than excluding the time a physician serves in J-1
status as an alien described in 8 U.S.C. § 1101(a)(15)(J), a category not at
issue here. In
contrast, the rule enumerates a list of events that trigger when the medical
service period commences. The rule
provides that the service period begins upon 1) approval of the NIW petition,
2) when the CIS issues the necessary
employment authorization document, or 3) when the physician changes from J-1
status to H-1B status. See 8 C.F.R. §§
204.12(b), 245.18(e)(2).[9]
This provision of the rule is contrary
to the plain meaning of the statute. The
statute excepts from the service period only one category of time - the time
served in J-1 status as an alien described in 8
U.S.C. § 1101(a)(15)(J). It does not
exclude from the medical service period the
time an alien physician practices in a medically underserved area while in any
other immigration status. The
exclusion of work performed in J status demonstrates that Congress knows how to
exclude work performed in certain categories of immigration status if it so
intends.
The rule relating to when the medical service requirement begins has a
substantial impact on all plaintiffs except Doctors Sattar and Kasthuri. While
the statute requires aggregate service of three or five years, the rule would
extend these service requirements:
(1) Dr. Tandar has practiced medicine in an
underserved area since
(2) Dr. Jain has practiced medicine in an
underserved area since
(3) Dr. Schneider has practiced medicine in an underserved area since
(4) Dr. Mamuya has practiced
medicine in an underserved area since
(5) Dr. Krishnamoorthy has
practiced medicine in an underserved area since
(6) Dr. Nedelescu has practiced
medicine in an underserved area since
When reviewing an agencys construction of a statute, the court must
ask two questions: (1) Has Congress
directly spoken to the precise question at issue? (2) If not, is the agencys answer based on a
permissible construction of the statute?
Chevron v. Natural Resources Defense Council, 467
As the Supreme Court stated in INS v. Cardoza-Fonseca,
the judiciary is the final authority on issues of statutory construction and
must reject administrative constructions which are contrary to clear
congressional intent. 480
Here, Congress specifically stated that the required period of service
is an aggregate of either three or five years. The rule contradicts the statute by
conditioning the commencement of the medical service requirement upon approval
of the NIW petition, issuance of the employment authorization document, or
change of status from J-1 to H-1B.
The rule is an impermissible construction of the statute. The purpose of the statute is to facilitate
the relocation of physicians willing to commit to medical service in
underserved areas for a period of time.
No rationale justifies the rules exclusion of portions of the
physicians service.
Moreover, a physician has no control over how
long the CIS will take to grant an NIW
petition. Adding the CIS processing times to the period of time that the physician
is already serving in a medically underserved area is arbitrary and capricious,
and cannot be justified under the statute.
Dr. Nedelescus situation demonstrates the arbitrariness of the
rule. The CIS can extend the period Dr.
Nedelescu must serve by simply continuing to delay approval of his NIW petition
which has already been pending for well over one year. Lengthy delays in CIS adjudication times
impose a significantly longer period of employment obligation on a physician
than the three or five year aggregate required by law.
Accordingly, plaintiffs request that this court declare these portions
of the rule invalid and apply the statute as written: requiring an aggregate
time of medical service, without regard to whether the medical service period
commenced prior to approval of the NIW petition, the issuance of an employment
authorization document or a change of status from J-1 to H-1B.
IV. A
PHYSICIAN WHO IS A BENEFICIARY OF A NATIONAL INTEREST WAIVER PETITION FILED
PRIOR TO
The
law provides that a physician for whom an application for a waiver was
filed . . . prior to November 1, 1998
is required to have worked full time
as a physician for an aggregate of 3 years [emphasis added] 8 U.S.C. §
1153(b)(2)(B)(ii)(IV). The rule attempts
to amend the law by providing that the CIS will process NIW petitions filed
prior to
As to the first and second categories, 8 C.F.R. §
204.12(d)(4) and (5) provide that physicians who are beneficiaries of these NIW
petitions are subject to the three-year medical service requirement. However, as to the third category, 8 C.F.R. §
204.12(d)(6) provides that physicians who are beneficiaries of NIW petitions
denied before November 12, 1999 are,
despite the statute, subject to the five-year medical service
requirement. The CIS stated in the
Federal Register that, in making provisions for cases filed before November 1,
1998 section 203(b)(2)(B)(ii)(IV) of the Act [8 U.S.C. § 1153(b)(2)(B)(ii)(IV)]
makes it clear that Congress intended to apply this new provision to all
petitions that were actually pending on November 12, 1999. 65 Fed. Reg. 53891
(
By way of example, an NIW petition was filed on
Plaintiff Tandars behalf on
In determining the
intent of Congress, the court should apply the plain meaning of the statute
unless there is indication that Congress intended something different. Perrin
v.
Here,
Drs. Tandar, Sattar, and Jain were all beneficiaries of NIW petitions filed
prior to
V. THE
INTERIM RULE UNLAWFULLY IMPOSES A LIMITATION ON THE TIME WITHIN WHICH THE
PHYSICIAN MUST COMPLETE EITHER THE THREE-YEAR OR FIVE-YEAR MEDICAL SERVICE
REQUIREMENT
The
rule imposes a limitation on the time within which physicians must complete
their required medical service.
Physicians subject to the three-year medical service requirement must
complete their service within four years, and physicians subject to the
five-year medical service requirement must complete their service within six
years. 8 C.F.R. § 204.12(b)(1) and (2). These limitations are unlawful for several
reasons.
The language of 8 U.S.C. § 1153(b)(2)(B)(ii) requires the Attorney
General to grant lawful permanent residence to a physician who completes an
aggregate of three or five years service in a medically underserved area. Under the statute, a physician who completes
the medical service requirement is statutorily eligible for lawful permanent
residence without regard to the amount of time it takes to complete that
service. The CIS cannot by rule take away
what the statute has provided.
If Congress had intended to create a time limitation it would have
done so. In many other instances,
Congress has imposed time limitations. For instance, in 8 U.S.C. § 1184(l), Congress required that a foreign
medical graduate who receives a waiver of the 8 U.S.C. § 1182(e) foreign
residence requirement must agree to commence service within 90 days of being
granted a waiver. The fact that Congress
did not create a time limitation in 8 U.S.C. § 1153(b)(2)(B)(ii) means it did
not wish to compel physicians to complete their medical service requirement
within a specific number of years.
Finally, the rule is arbitrary and capricious because it lists a
number of extenuating circumstances that might make it impossible or unduly
burdensome for physicians to complete their medical service requirement within
the stipulated period of time, but makes no exceptions for physicians who
cannot fulfill the regulatory requirement due to circumstances beyond their
control. As the CIS states in a Federal Register notice, there are many
potential circumstances - such as pregnancy, illness, disability, and family
emergencies - which might make it impossible for a physician to complete the
service requirement prior to the expiration of the time limitation imposed by
the rule. See, 65 Fed. Reg. 53890 (
Those portions of the rule that require a physician to complete
his or her medical service within 4 or 6 years are not authorized by the
statute and should be stricken.
VI.
THE INTERIM RULE UNLAWFULLY EXCLUDES
SPECIALISTS FROM RECEIVING THE BENEFITS UNDER THE LAW
The statute provides that the Attorney
General shall grant an NIW petition on behalf of any alien physician if the
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 . . . .
Section 5 of the NRDAA codified at 8 U.S.C. § 1153(b)(2)(B)(ii)(I).
The rule requires the service to be in an
area designated by the Secretary of Health and Human Services (HHS) as a
Medically Underserved Area, a Primary Medical Health Professional Shortage
Area, or a Mental Health Professional Shortage Area, and in a medical
specialty that is within the scope of the secretarys designation for
the geographical area or areas. [emphasis added] 8 C.F.R. § 204.12(a)(2). By requiring the service to be in a medical
specialty that is within the scope of the secretarys designation, the rule
limits the reach of the statute to primary care physicians. The stated rationale for this is because the
Secretary of Health & Human Services designation of medically underserved
areas or primary medical health professional shortage areas is based on the
ratio of primary care physicians to patients.
See 42 C.F.R. § 5.1, Appendix A; see also 65 Fed. Reg. 53890 (
This limitation contradicts the statute. The
statute extends its benefits to any physician who agrees to work fulltime as
a physician in an area designated by the Secretary of Health and Human
Services as having a shortage of health care professionals . . . 8 U.S.C. §
1153(b)(2)(B)(ii)(I). There is no legal
basis for restricting the benefits available under the statute to primary care
physicians. It is a fundamental canon of
statutory construction that, unless otherwise defined, words will be interpreted
as taking their ordinary, contemporary, common meaning. Perrin, 444
Congress has often used Health Professional Shortage Area (HPSA)
designations for reasons unrelated to the type of medical practice in order to
bestow a benefit:
(1) Under Medicare, both primary care physicians and specialists
practicing in Hasps are entitled to 10% Medicare incentive payments. See the Omnibus
Budget Reconciliation Acts of 1989, Pub. L. 101-239, Sec. 6012(c) and the
Social Security Act Sec. 1833(m) codified at 42 U.S.C. §1395l(m).
(2)
The home residency waiver program for foreign-born physicians who agree to work
in HPSAs, and who are sponsored by individual states, is not limited to primary
care physicians. Under this program,
foreign-born physicians complete medical residencies or fellowships in the
United States in exchange visitor (J-1) immigration status, and are normally
required to return to their home countries for two years. These physicians can obtain waivers of the
two-year requirement if they agree to provide medical care in an
HHS-designated shortage area.[13]
See 8 C.F.R. § 212.7(c)(9)(i). The benefits of this program are available to
specialists as well as to primary care physicians.
(3)
Section 5 of the NRDAA itself provides that certain hospitals located in
federally-designated health professional shortage areas may sponsor
foreign-born registered nurses for temporary H-1C visas. The section provides that sponsoring
hospitals must be located within HPSAs in order to employ H-1C nurses. See 8 U.S.C. §§ 1101(a)(15)(H)(i)(c),
1182(m)(6). Obviously, Congress did not
intend to restrict the employment of nurses to those who intended to practice
as primary care physicians.
This Court should strike down 8 C.F.R. § 204.12(a)(2)(i), which limits national interest waivers to primary care physicians, as contrary to the statute.
VII. THE INTERIM RULE CONTRAVENES THE STATUTE BY REQUIRING THAT THE PUBLIC INTEREST ATTESTATION STATEMENT
BE ISSUED BY A STATE DEPARTMENT OF HEALTH AS OPPOSED TO A DEPARTMENT OF
PUBLIC HEALTH IN ANY STATE
The statute provides that an NIW
petition may be approved where a Federal agency or a department of public
health in any State has
previously determined that the alien physicians work in such an area or at
such facility was in the public interest. [emphasis added] 8 U.S.C. §
1153(b)(2)(B)(ii)(I)(bb). For reasons
that are both unclear and unsupported by the statutory language, the rule
modifies this requirement in two important ways.
First, the rule requires that any
non-Federal public interest determination be issued by a department of public
health (or equivalent) of a state. [emphasis added] 8 C.F.R. §
204.12(c)(3).
This is contrary to the statute. By using the words department of public
health in any state, and not the words department of public health of
any state, Congress drafted this statute to include local health departments.
Nevertheless, by using the word of rather than in, the rule excludes
city, county, and other local health departments from submitting public
interest letters.
Congress understands the distinction between the state and
local departments of public health. In
other portions of the Immigration and Nationality Act, Congress specifically
refers to state departments of health.
For example, in 8 U.S.C. § 1182(e), Congress identifies state
departments of public health by stating, Provided,
That upon the favorable recommendation of the Director, pursuant to the request
of a State Department of Public Health, or its equivalent
[emphasis added] 8 U.S.C. §
1182(e)(iii). See also 8 U.S.C. §
1184(2) (In the case of a request by an interested State agency. . .). Given
that Congress has utilized a specific phrase to refer to state departments of
health in one part of the Immigration and Nationality Act, Congress would have
used that same phrase had it meant to limit 8 U.S.C. § 1153(b)(2) to public
interest letters written by state departments of health.
Accordingly, that
portion of the rule which requires that public interest letters be issued by
state departments of health should be struck down. The public interest letter
that Dr. Sattar received from the Latimer County Health Department and the
Oklahoma City Area Indian Health Service should be accepted by the CIS.
Second, the
rule requires that an attestation from a Federal agency must reflect the
agencys knowledge of the aliens qualifications and the agencys background in
making determinations on matters involving medical affairs so as to
substantiate the finding that the aliens work is or will be in the public
interest. 8 C.F.R. § 204.12(c)(3)(i).
However, there is no basis to require a personal attestation statement
regarding the physicians qualifications to practice medicine from the
recommending Federal Agency. Nor is
there a basis to require a statement regarding the Agencys background in
making determinations involving medical matters. The statute only requires that an NIW
petition on behalf of a physician include a public interest statement from a
Federal agency or a department of public health in any State. This court should strike down this provision
of the rule as contrary to law.
VIII. THE
INTERIM RULE CREATES AN INAPPROPRIATE DOUBLE COMPLIANCE SYSTEM TO ENSURE
FULFILLMENT OF THE REQUIRED PERIOD OF MEDICAL SERVICE
8 U.S.C. § 1153(b)(2)(B) does not specify
that a physician with an approved NIW petition must apprise the CIS of his or her progress toward meeting the three or
five-year medical service requirement on two separate occasions. No doubt, this is because the statute does
not limit the time in which the physician is obliged to complete this
requirement. The rule, at 8 C.F.R. §
245.18, imposes such an obligation.
Under 8 C.F.R. § 245.18, physicians must submit evidence twice: first, two years and 120 days into his or
her medical service in an underserved area or VA facility, and then again no
later than 120 days after completion of the service requirement. 8 C.F.R. § 245.18(g) and 8 C.F.R.
245.18(a).
Normally an applicant for adjustment of status under an employment-based
category is required to submit his evidence of entitlement only once. Where there is a need to demonstrate
eligibility more than one once, Congress has so stated. See e.g., 8 U.S.C. §§ 1186a, (adjustment of
status based on a marriage which is less than two years old at the time of the
adjustment), and 8 U.S.C. § 1186(b), (alien investors). However, in the case of physicians, Congress
did not provide for an exception to the general rule.
The CIS
The rule cites neither the statute nor
the legislative history as authority for imposing a "double
compliance" system on physicians.
The "double compliance" system is contrary to law and should
be struck from the rule.
IX. THE
REQUIREMENT THAT A PHYSICIAN WHO RELOCATES TO ANOTHER JOB WITHIN A MEDICALLY
UNDERSERVED AREA MUST HAVE AN ADDITIONAL NATIONAL INTEREST WAIVER SUBMITTED ON
HIS BEHALF IS EXCESSIVE AND UNSUPPORTED BY THE STATUTE
The rule unlawfully imposes an obligation on
physicians who already have approved NIW petitions to seek an additional waiver
each time they relocate to a new job within a medically underserved area. 8 C.F.R. § 204.12(f)(1) provides: If the physician beneficiary has found a new
employer desiring to petition the Service on the physicians behalf, the new
petitioner must submit a new form I-140 (with fee) with all the evidence
required
The statute, at 8 U.S.C. 1153(b)(2)(B),
speaks on a national interest waiver in the singular. It makes no mention of a requirement to file
additional NIW petitions each time that the physician relocates.
This
rule is also at odds with Section 106 of the American Competitiveness in the
Twenty-First Century Act (AC21), Pub. L. No. 106- 313, 8 U.S.C. §
1154(j). This section provides that an
approved employment-based immigrant petition will remain valid when an alien
changes jobs if an application to adjust status on the basis of the immigrant
petition has been filed and remains unadjudicated for 180 days or more, and the
new job is in the same or similar occupational classification. Under this statutory provision, which is
entitled Job flexibility for long delayed applicants for adjustment of status
to permanent residence, there is no need to file an additional immigrant visa
petition when a petitioned employee changes employers or locations.
While the physician would still bear the burden of
showing, at the time of adjustment of status, that he has practiced medicine in
a medically underserved area for an aggregate of three or five years, the law
does not require him to file and gain CIS approval of an additional NIW
petition each time he relocates.
Dr. Jain is adversely affected by this provision of
the rule. His NIW petition was approved
on
This Court should strike
down this section of the rule as contrary to law.
X. CONCLUSION
The Plaintiffs have shown that the rule contradicts the
express language and intent of §5 of the NRDAA, Pub.
L. 106-95, 8 U.S.C. § 1153(b)(2)(B)(ii) in
many respects. There are no
genuine issues as to any material facts.
This Court should declare the above-referenced portions of the rule
invalid, and order that the Plaintiffs are entitled to have their NIW petitions
and their applications for adjustment of status to permanent residence
adjudicated without regard to those portions of the rule that contravene the
statute.
Dated:
______________________
Carl Shusterman
Attorney for Plaintiffs
[1] See also 8 C.F.R. § 245.18(e) (CIS will begin counting
the physicians 5 or 3-year medical practice requirement on the date the NIW
petition is approved). Physicians who
must apply for an employment authorization document will have their 5 or 3-year
service commence when the CIS issues the document. See 8 C.F.R. § 245.18(e)(1).
[2] H-1B is a nonimmigrant category for an
alien
who is coming temporarily to the
[3] A J-1 waiver
is the waiver of a two-year home residence requirement for persons who entered
the
[4] Dr. Sattars H-1B status expired on
[5] O-1 is a
nonimmigrant category for an alien who has extraordinary ability in the sciences,
arts, education, business, or athletics
8 U.S.C. §
1101(a)(15)(O)(i).
[6] See footnote #3 supra.
[7] This despite the rule in 8 C.F.R. § 245.18(f) which
states that, [t]he Service shall provide the physician with the information
and projected timetables for completing the adjustment process
[8] This despite interim rule 8 C.F.R. § 245.18(f) which
states that, [t]he Service shall provide the physician with the information
and projected timetables for completing the adjustment process
[9] If the physician
formerly held status as a J-1
nonimmigrant, but obtained a waiver of the foreign residence requirement and a
change of status to that of an H-1B nonimmigrant pursuant to section 214(l) of
the Act [8 U.S.C. § 1184(l)]
the period
begins on the date of the aliens change from J-1 to H-1B status. 8 C.F.R. § 245.18(e)(2).
[10] The date he
was granted a change of status to H-1B specialty occupation pursuant to 8
C.F.R. § 245.18(e)(2). The CIS has not
informed Dr. Schneider when his five-year period of service began despite the
rule in 8 C.F.R. § 245.18(f) which provides that the CIS shall notify the
physician of the date that the medical service begins, and when he is required
to submit further evidence.
[11] The enactment date of § 5 of the NRDAA.
[12] 8 U.S.C. § 1153(b)(2)(B)(ii)(IV)
states that,
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 is 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 101(a)(15)(J) [8 U.S.C. §
1101(a)(15)(J)] before a visa can be issued to the alien
[13] This program was created by the Immigration and
Nationality Technical Corrections Act of 1994 (INTCA) (Pub. L. No. 103-416).