STATEMENT OF JURISDICTION
This is an appeal from a final
decision of the United States District Court for the Central District of
California. On
STATEMENT OF ISSUE
Whether the District Court should have voided the CIS’
interim rules as inconsistent with the plain language of the statute?
STATEMENT OF THE CASE
On
STATUTORY FRAMEWORK
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 provide 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. [emphasis added] 8 U.S.C.
§1153(b)(2)(B)(ii)(I).
Before a physician with
an approved NIW petition is eligible to adjust status to permanent resident, he
or she must work full time for an aggregate of five years in a medically
underserved area. 8 U.S.C. §1153(b)(2)(B)(ii)(II). The
law makes an exception for any physician who had an NIW petition filed on his
or her behalf prior to
The structure
of the statute is very simple: Any alien physician who practices medicine for
an aggregate of five or three years in an area designated as having a shortage
of healthcare professionals or at a VA facility may be granted permanent
residence after the required time is served.
REGULATORY FRAMEWORK
On
(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 Secretary’s 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 physician’s work in that area or facility is in
the public interest. [emphasis added] 8 C.F.R.
§204.12(a).
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]
[emphasis added] 8 C.F.R. § 204.12(b)(1), (2).
For a
period of almost six years, from
On
Since
On
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. [Record, pp. 66-73). On
On
From
5. Dr. Komsu Mamuya
Since
On
6.
Dr. Saravanan Kasthuri
Since
STANDARD OF REVIEW
The
standard of review applicable to questions of statutory construction was stated
by the Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987): "The judiciary is the final authority on
issues of statutory construction and must reject administrative constructions
which are contrary to clear congressional intent. If a court, employing traditional tools of
statutory construction, ascertains that Congress had an intention on the
precise question at issue, that intention is the law and must be given
effect."
A reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. 5 U.S.C. § 706. The reviewing court shall hold unlawful
agency action that is "not in accordance with law." 5 U.S.C. § 706(2)(A).
SUMMARY OF ARGUMENT
Congress specifically mandated
that the Attorney General “shall grant a
national interest waiver” on behalf of “any alien physician” and that “no permanent resident visa may be
issued to an alien physician...until
such time as the alien has worked full time as a physician for an aggregate of
5 years.” [emphasis added] 8 U.S.C. §
1153(b)(2)(B)(ii)
Contrary to
the finding of the District Court below, the CIS rule unlawfully restricts the
application of this statute in a number of ways:
1. 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 C.F.R. §
245.18(e) impermissibly determines when a physician’s medical service
requirement begins based on arbitrary factors having no relationship to the
“aggregate” time that he practices in an underserved area. This is contrary to
the statute.
2. The
statute states that a physician who had an NIW petition filed on his behalf
prior to
3. 8 C.F.R. § § 204.12(b)(1) and (2) impose 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 a limitation.
4. Although the statute extends benefits to “any alien physician,” 8 C.F.R. § 204.12(a) attempts to restrict the application of the law to primary care physicians only.
ARGUMENT
A. CIS’ Rule Unlawfully Ignores a Physician’s Prior Practice in a
Medically Underserved Area
To
be eligible for adjustment of status to permanent resident, a physician must
have worked full time “…as a physician for an aggregate of 5 years
(not including time
served in the status of
[a J-1] alien...” [emphasis added] 8 U.S.C. §
1153(b)(2)(B)(ii)(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 CIS 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).[7]
This
provision of the rule is contrary to the plain meaning of the statute. The statute exempts from the service period
only one category of time - the time served in J-1 status. 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 CIS 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
When reviewing an
agency’s 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 agency’s answer based on a permissible construction of the statute? Chevron, 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
If a court, employing traditional tools of
statutory construction, ascertains that Congress had an intention on the
precise question at issue, that intention is the law and must be given effect. Socop-Gonzalez
v. INS, 272 F. 3d 1176, 1193 (9th Cir. 2001) (declining to defer
to the agency when Congress intended the filing period for motions to reopen to
operate as a statute of limitations and not a jurisdictional requirement). For example, this Court will
not accord any deference to an unreasonable construction that does not conform with the wording and purpose of a regulation. Perez-Gonzalez
v. Ashcroft, 379 F.3d 783, 789 (9th Cir. 2004) (finding
statutory framework clearly contemplated that aliens who had been previously
removed could still receive a favorable determination on their application for
adjustment of status despite CIS’ interpretation of its own regulation).
Here, Congress stated
that the required period of service is an “aggregate” of either three or five
years. The plain meaning of “aggregate” is
clear – “formed by the collection of units or particles into a body, mass, or
amount; collective as a clustered…taking all units as a whole; to collect or
gather into a mass or whole; to amount in the aggregate to: total; the whole
sum or amount: sum total.” See Webster-Merriam OnLine
Dictionary. The ordinary meaning of “aggregate” must be given effect by this
Court to include all periods of time that a physician practices in a medically
underserved area, except in J-1 status, thus satisfying the statutory mandate.
The CIS rule is an
impermissible construction of the statute. Congress could have, but did not,
exclude time that a physician served in another immigration status such as H-1B
or O-1. No rationale justifies the rule’s exclusion of portions of the
physician’s service. The rule also offers no explanation for its arbitrary and
disparate treatment of these physicians.
Moreover, the CIS ignores
the fact that all of the Petitioners were authorized by CIS to work in medically
underserved areas by their respective nonimmigrant status. [Record, p. 100:
H-1B approval notice for Dr. Mamuya; pp. 71-73: H-1B approval notice for Dr.
Jain; p. 107: H-1B approval notice for Dr. Kasthuri; pp. 86-88: O-1 approval
notice for Dr. Schneider; pp. 40-41: H-1B approval notice for Dr. Tandar; pp. 51-52,
57: H-1B approval notices for Dr. Sattar]. Yet, the CIS rule excludes portions of their
employment from counting toward the statutory aggregate of three or five years
despite the fact that their employment was explicitly authorized by the CIS. Thus, the rule is not in accordance with the
statute.
B. Contrary
to the District Court’s Finding, 8 U.S.C. § 1153(b)(2)(B) (ii)(IV) Clearly
States that Physicians who Filed NIWs Before November 1, 1998, Qualify to Apply
for Adjustment of Status to Permanent Resident Under the Three-Year Medical
Service Obligation
As a background, on
Before NYSDOT,
the CIS had consistently approved NIW petitions for physicians practicing in
medically underserved areas. [Record, p. 110]. NIW petitions filed on behalf of
physicians after the NYSDOT decision were dismissed by the CIS under NYSDOT’s
third prong. [Record, p. 43, 59-62, 75]. To rectify the problem, in 1999 Congress
enacted section 5 of the NRDAA which contains affirmative instructions to the
Attorney General to approve immigrant visa petitions filed under the NIW
provision for alien physicians. There is no published record that documents the
legislative history of the statute. Yet,
it is clear that this statute was passed by Congress which was troubled by the
ongoing systematic maldistribution patterns in the physician
workforce which have left broad portions of the country underserved.
The law clearly 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 CIS’ 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 states 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
By way of example, an NIW petition
was filed on Dr. Tandar’s 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
C. The Interim Rule Unlawfully Imposes a Limitation on the
Time Within Which the Physician Must Complete the 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 period of time.
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 should be
stricken from the rule.
D. The Interim
Rule Unlawfully Excludes Specialists From Receiving
the Benefits Under the Law[10]
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
CIS 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 secretary’s designation for the geographical area or areas.”
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 secretary’s 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 Service’s 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 in an area designated by the Secretary of
Health and Human Services (“HHS”) as having a shortage of health care
professionals. The phrase “designated by the HHS” qualifies the words “area or areas”
and not the type of medicine practiced by the physician. Also, the statute does not state that the NIW
shall only be granted to physicians in an area or areas designated by the HHS
as having a shortage of physicians practicing in family or general medicine, pediatrics, general internal medicine,
obstetrics/gynecology, and psychiatry. [emphasis
added]. The statute simply states the
NIW petition shall be granted to physicians in an area or areas designated as
having a shortage of health care professionals.
[emphasis added].
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
provided benefits to physicians who are specialists and other types of health
care professionals who practice in Health Professional Shortage Areas (“HPSAs”):
(1) Under Medicare, both
primary care physicians and specialists practicing in HPSAs 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”.[11]
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) because it unlawfully limits national interest waivers to primary care physicians.
E. The Interim Rule Unlawfully Creates a “Double
Compliance” System on a Physician Seeking Permanent Residence Based on the
Approval of a National Interest Waiver
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 multiple 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(a), (g).
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. § 1186b, (alien investors). However, in the case of physicians, Congress
did not provide for an exception to the general rule.
The
CIS has stated
that Drs. Mamuya and Tandar will need to submit this evidence twice. [Record,
pp. 45-46, 81-82]. “[Dr. Tandar] will
need to file…evidence upon completion of at least 12 months of qualifying
employment. This evidence must be
submitted no later than 120 days beyond
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.
F. The District Court Erred When it Held that Dr. Jain’s
Claim in Challenging 8 C.F.R. § 204.12(f)(1) is Moot [12]
The CIS 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 physician’s behalf, the new petitioner must submit a new form I-140 (with
fee) with all the evidence required…”
This rule affects Dr. Jain who has relocated jobs. [Record,
pp.68-69].
The
District Court found that Dr. Jain’s claim was moot because of 8 U.S.C. § 1154(j).[13]
[Record, p. 33]. However, this is erroneous since despite the enactment of the
new law CIS continues to apply 8 C.F.R. § 204.12(f)(1)
to physicians. For example, on
The statute, at 8 U.S.C. § 1153(b)(2)(B), speaks of a “national interest waiver” in the singular. It makes no mention of a requirement to file an additional NIW petition each time that the physician relocates. There is no support for this rule in section 5 of the NRDAA.
Moreover, the CIS rule conflicts with 8 U.S.C. § 1154(j) which was passed by Congress to benefit long delayed applications for adjustment of status to permanent residence.
Dr. Jain is
adversely affected by this provision of the rule. His NIW petition was approved on
The CIS has
other less burdensome ways to insure that a physician continues to be employed
in medically-underserved areas for three or five years. For example, CIS has
instructed Dr. Jain to “[s]ubmit your Federal Income
Tax Returns, including…W-2[s]…for 2001, 2002, 2003, and 2004…submit an updated
and original letter from your employer that attests to your full-time medical
practice, the date on which you began this service, and your current employment
status…” [Record, p. 82]. The portion of
the CIS rule which requires a physician to submit an additional NIW petition
each time he or she changes employers is contrary to the clear language of the
statute.
This Court should strike down this section of the rule as contrary to law and determine that Dr. Jain is immediately adjustable to permanent resident status.
CONCLUSION
The Petitioners
have shown that the rule contradicts both the express language and intent of §5 of the NRDAA, 8 U.S.C. § 1153(b)(2)(B)(ii) in a number
of respects. This Court should declare the
above-referenced portions of the rule invalid, and order that the Petitioners
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. Undersigned respectfully requests this Court
to award the Plaintiffs EAJA fees.
Dated:
______________________
Carl
Shusterman
Attorney
for Petitioners
[1] See also 8 C.F.R. § 245.18(e) - CIS will not
begin counting the physician’s 5 or 3-year medical practice requirement until
the date that they approve the NIW petition.
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] Dr. Mahesh
Krishnamoorthy withdraws from this suit because, on
[3] H-1B is a nonimmigrant category for “an
alien…who is coming temporarily to the
[4] A “J-1 waiver”
is the waiver of a two-year home residence requirement for persons who entered
the
[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] “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 alien’s change from J-1 to H-1B status.” 8 C.F.R. § 245.18(e)(2).
[8] The date he
was granted a change of status to H-1B specialty occupation pursuant to 8
C.F.R. § 245.18(e)(2).
[9] The enactment date of § 5 of the
NRDAA.
[10] The District Court held that Dr. Kasthuri’s claim is
not ripe for review. [Record, p. 33]. However, this Court has expressly adopted
the “firm prediction” rule which eliminates the need to await an inevitable
application of a regulation to a plaintiff before determining a claim to be
justiciable. Chang v. Untied States,
327 F.3d 911 (9th Cir. 2003); see also Freedom to Travel Campaign
v. Newcomb, 82 F.3d 1431 (9th Cir. 1996). Thus, this Court may firmly predict that the
CIS will deny Dr. Kasthuri’s NIW petition by virtue of it’s own rule, 8 C.F.R.
§ 204.12(a)(2)(i) since
he is a specialist rather than a physician who practices primary care.
[11] This program was created by the Immigration and
Nationality Technical Corrections Act of 1994 (INTCA) (Pub. L. No. 103-416).
[12] Dr. Jain’s adjustment of status application remains
pending at CIS’
The
[13] “A petition under subsection (a)(1)(D)
of this section for an individual whose application for adjustment of status
pursuant to section 1255 of this title has been riled and remained unadjudicated for 180 days or more shall remain valid with
respect to a new job if the individual changes jobs or employers if the new job
is in the same or a similar occupational classification as the job offer for
which the petition was filed.”