UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

 

mar

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: December 22, 2003
Immigration and Naturalization Service, and THE	)	TIME: 1:30 p.m.
IMMIGRATION AND NATURALIZATION	)
SERVICE,	)	COURTROOM: TBA
Defendants	)	312 North Spring Street
		Los Angeles, CA 90012
_______________________________	)	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 PHYSICIAN’S 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 U.S. 837 (1984)……………………..14

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)……………………………………14

INS v. St. Cyr, 533 U.S. 289 (2001)……………………………………………..14

Perrin v. United States., 444 U.S. 1137 (1979)……………………………….16, 19

Watson v. Proctor (In re: Watson), 161 F.3d 593 (9th Cir. 1998)…………………14

 

FEDERAL REGISTER PAGE

65 Fed. Reg. 53889-53896 (September 6, 2000) …………………….. 1, 2, 5, 16, 18, 19

 

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

United States Code:

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

 

B. Dr. Muhammad Sattar

 

I. SUMMARY OF ARGUMENT

 

This is an action to make consistent the Immigration and Naturalization Service’s (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).

 

Before a physician with an approved NIW petition is eligible to adjust his or her status to permanent resident, he or she must work full time for an aggregate of five years in a medically underserved area. The law makes an exception for any physician who had an NIW petition filed on his or her behalf prior to November 1, 1998. Such physicians are only required to have worked full time for an aggregate of three years in a medically underserved area. 8 U.S.C. §1153(b)(2)(B)(ii)(II) and (IV).

 

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 November 1, 1998, serve an aggregate of three years.

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 (September 6, 2000). The rule however, is not consistent with the statute.

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 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.

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].

<!–[if !supportLists]–> (2) <!–[endif]–> 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. <!–[if !supportFootnotes]–> [1] <!–[endif]–>

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 physician’s 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 physician’s five or three-year medical service requirement begins based on the physician’s 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 November 1, 1998 is required to have worked full time as a physician for three years. However, the rule separates these petitions into a number of different categories including the following:

(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 November 1, 1998, and still pending as of November 12, 1999. These petitions would be approved . 8 C.F.R § 204.12(d)(4).

(3) NIW petitions which were filed prior to November 1, 1998, and denied prior to November 12, 1999. Physician beneficiaries of these petitions would be subjected to the five-year service requirement. 8 C.F.R. § 204.12(d)(6); see also 65 Fed. Reg. 53890 (September 6, 2000).

By requiring NIW petitions which were filed prior to November 1, 1998 to be pending on November 12, 1999, the rule creates a condition subsequent not authorized by the statute.

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.

 

II. FACTS

 

A. Dr. Anwar Tandar

 

From August 26, 1997 until June 20, 2003, Dr. Anwar Tandar was employed as a physician at the Fallon Clinic’s Saint Vincent Hospital located in Worcester, Massachusetts, a medically underserved area, in H-1B specialty occupation status. <!–[if !supportFootnotes]–> [2] <!–[endif]–> (See Exhibit 1, pp. 28-29). An NIW petition was filed on his behalf prior to November 1, 1998 and was denied on June 21, 1999. (Id., p. 30).

On January 16, 2001, a second NIW petition was filed on Dr. Tandar’s behalf and was approved on September 8, 2001. (Id., p. 32). Thereafter, on November 13, 2001 Dr. Tandar filed an application for adjustment of status to permanent resident, which is still pending. On May 21, 2002, the CIS notified Dr. Tandar that because his NIW petition was approved on September 8, 2001, he is subject to the five-year medical service requirement which will end on September 8, 2006. (Id., p. 33).

However, Dr. Tandar falls within the three-year medical service requirement because his first NIW petition was filed prior to November 1, 1998. He practiced in a medically underserved area from August 27, 1997 until June 20, 2003, and contends that he has complied not only with the three-year, but also with the five-year medical service requirement, and that he is immediately eligible to adjust his status to permanent resident.

 

B. Dr. Muhammad Sattar

 

Since July 23, 1996, Dr. Muhammad Sattar has been employed as a physician in a medically underserved area in H-1B status. (See Exhibit 2, pp. 39-41). Dr. Sattar received a waiver of the J-1 home residency requirement on March 6, 1996, <!–[if !supportFootnotes]–> [3] <!–[endif]–> (see Id., p. 42). On July 23, 1996, the CIS approved his change of status to H-1B to work for the Cherokee Nation in Tahlequah, Oklahoma, a medically underserved area. (Id., p. 39). In March of 1997, Dr. Sattar began his current employment with the Choctaw Nation Indian Hospital located in Talihina, Oklahoma, a medically underserved area, in H-1B status. (Id., p. 43).

On January 14, 1998, an NIW petition was filed on Dr. Sattar’s behalf. (Id., p. 44). The petition was denied on January 11, 1999. (Id., p. 47). On November 20, 2002, a second NIW petition was filed on Dr. Sattar’s behalf concurrently with an application for adjustment of status to permanent resident. (Id., pp. 49-50). Dr. Sattar’s NIW petition includes “public interest” letters from the Latimer County Health Department and the Oklahoma City Area Indian Health Service. (Id., pp. 51-52). Both his NIW petition and his adjustment of status application are currently pending. <!–[if !supportFootnotes]–> [4] <!–[endif]–>

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.

 

C. Dr. Sandeep Harbans Jain

 

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 January 14, 1998, an NIW petition was filed on his behalf. (Id., p. 63). On June 18, 1998, that petition was denied. An appeal was filed on July 17, 1998. (Id.). On August 10, 1998, Dr. Jain began his employment with New York Medical College’s affiliate, Metropolitan Hospital, in East Harlem, a medically underserved area. (Id., p. 54). On September 10, 2001, he began working at the Brookdale University & Medical Center located in Brooklyn, New York, also a medically underserved area. (Id., p. 55).

On February 2, 2001, a second NIW petition was filed on behalf of Dr. Jain. On July 13, 2001, the CIS approved both the 1998 and 2001 NIW petitions. (Id., pp. 66-67). Thereafter, on August 3, 2001 Dr. Jain filed an application for adjustment of status to permanent resident, which is still pending. (Id., p. 68). On July 15, 2002, the CIS notified Dr. Jain that his three-year medical service requirement began on July 12, 2001, and would end on July 12, 2004. (Id., p. 69).

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.

 

D. Dr. Stefan Schneider

 

From September 1, 1998 to June 27, 2003, Dr. Stefan Schneider was employed as a physician at Pro Health, Inc., an AIDS clinic located in Long Beach and Wilmington, California, both medically underserved areas, in O-1 status. <!–[if !supportFootnotes]–> [5] <!–[endif]–> (See Exhibit 4, pp. 73-76). Dr. Schneider received a waiver of the J-1 home residency requirement on May 6, 2003. <!–[if !supportFootnotes]–> [6] <!–[endif]–> (Id., p. 77). On May 22, 2003, the CIS approved his change of status to that of H-1B to continue his employment at Pro Health, Inc. (Id., p. 78). On June 26, 2003, the CIS’ California Service Center approved an NIW petition filed on Dr. Schneider’s behalf. (Id., p. 79). On August 25, 2003, he filed an application for adjustment of status to permanent resident. (Id., p. 80). The CIS’ California Service Center does not issue notices to physicians indicating when their five-year medical service requirement is deemed to begin. <!–[if !supportFootnotes]–> [7] <!–[endif]–>

Dr. Schneider has been practicing in a medically underserved area since September 1, 1998. He contends that he has completed his five-year medical service requirement because the 4½ years that he spent practicing medicine in an underserved area in O-1 status should count toward fulfillment of this requirement.

 

E. Dr. Komsu Mamuya

Since July 29, 1999, Dr. Komsu Mamuya has been employed as a physician at the Fallon Clinic located in Worcester, Massachusetts, a medically underserved area, in H-1B status. (See Exhibit 5, p. 84-85). On September 8, 2001, the CIS’ Vermont Service Center approved an NIW petition that was filed on Dr. Mamuya’s behalf. (Id., p. 86).

On May 21, 2002, the CIS notified Dr. Mamuya that his five-year medical service requirement began on September 8, 2001, and would end on September 8, 2006. (Id., p. 87). Dr. Mamuya contends that his five-year medical service requirement began on July 29, 1999, the date he began practicing in a medically underserved area.

 

F. Dr. Mahesh Krishnamoorthy

 

Since September 29, 1998, Dr. Mahesh Krishnamoorthy has been employed by Reddy and Associates d/b/a/ Tri-County Medical Center located in Royston, Georgia, a medically underserved area, in H-1B status. (See, Exhibit 6, pp. 93-95). On April 3, 2001, the CIS’ Texas Service Center approved an NIW petition that was filed on his behalf. (Id., p. 96). On July 26, 2001, Dr. Krishnamoorthy filed an application for adjustment of status to permanent resident. (Id., p. 97). The CIS’ Texas Service Center does not issue notices to physicians indicating when their five-year medical practice requirement is deemed to begin. <!–[if !supportFootnotes]–> [8] <!–[endif]–>

Dr. Krishnamoorthy contends that his five-year medical service requirement began on September 29, 1998, the date he began practicing in an underserved area. Therefore, his service requirement was completed on September 29, 2003, and he is immediately eligible to adjust his status to permanent resident.

 

G. Dr. Bogdan Nedelescu

 

From October 1, 1998 until June of 2001, Dr. Bogdan Nedelescu was employed by Saint Vincent Hospital in Worcester, Massachusetts, a medically underserved area, in H-1B status. (See Exhibit 7, pp. 101-102). On July 1, 2001, he began his current employment in H-1B status with Worcester Internal Medicine, also located in Worcester. (Id., pp. 103-104). On June 24, 2002, an NIW petition was filed on his behalf. (Id., p.105). This petition remains pending.

Dr. Nedelescu contends that his five-year medical service requirement began on October 6, 1998, the date he began practicing in an underserved area, and that he is immediately eligible for adjustment of status.

 

H. Dr. Saravanan Kasthuri

 

On June 23, 2001, Dr. Saravanan Kasthuri began working as a radiologist with Pacific Medical Imaging located in Wenatchee, Washington, a medically underserved area, in H-1B status. (See Exhibit 8, pp. 107-108). Dr. Kasthuri received a waiver of the J-1 home residency requirement on May 7, 2001. (Id., p. 109). On or about April 1, 2003, Dr. Kasthuri began his employment with Columbia Basin Imaging, located in Richland, Washington, also a medically underserved area, in H-1B status. (Id., p. 110). March 31, 2003, an NIW petition was filed on his behalf with the CIS’ Nebraska Service Center. (Id., p. 111). This petition remains pending.

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 PHYSICIAN’S 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). <!–[if !supportFootnotes]–> [9] <!–[endif]–>

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 August 26, 1997, yet the CIS has advised him that, in its view, his medical service requirement commenced on September 8, 2001, and will end on September 8, 2006. (See Exhibit 1, p. 33). This is an aggregate of nine years.

(2) Dr. Jain has practiced medicine in an underserved area since January 14, 1998, yet the CIS has advised him that in its view, his medical service requirement commenced on July 12, 2001, and will end on July 12, 2004. (See Exhibit 3, p. 69). This is an aggregate of six and one half years.

(3) Dr. Schneider has practiced medicine in an underserved area since September 1, 1998, yet the CIS rule will make his five-year medical service requirement commence on June 26, 2003 <!–[if !supportFootnotes]–> [10] <!–[endif]–> , and end on June 26, 2008. This is an aggregate of nearly ten years.

(4) Dr. Mamuya has practiced medicine in an underserved area since July 29, 1999, yet the CIS has advised him that, in its view, his medical service requirement commenced on September 8, 2001, and will end on September 8, 2006. (See Exhibit 5, p. 87). This is an aggregate of over seven years.

(5) Dr. Krishnamoorthy has practiced medicine in an underserved area since September 29, 1998, yet the CIS rule will make his five-year medical service requirement commence on April 3, 2001, and end on April 3, 2006. This is an aggregate of nearly eight years.

(6) Dr. Nedelescu has practiced medicine in an underserved area since October 6, 1998. An NIW petition on his behalf was filed on June 24, 2002, and is still pending. (See Exhibit 7, p. 105). However, under the rule, his medical service requirement will not commence until the NIW petition is approved. The rule thus ignores the time he has worked in a medically underserved area since 1998.

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 v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984).

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 U.S. 421, 446-48 (1987) (quoting Chevron at 843 n.9); see also INS v. St. Cyr, 533 U.S. 289, 320 n. 45 (2001). A federal regulation in conflict with a federal statute is invalid as a matter of law. Watson v. Proctor (In re: Watson), 161 F.3d 593, 598 (9th Cir. 1998).

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 rule’s exclusion of portions of the physician’s 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. Nedelescu’s 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 NOVEMBER 1, 1998 QUALIFIES TO APPLY FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENT UNDER THE THREE-YEAR MEDICAL SERVICE OBLIGATION

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 November 1, 1998 according to various criteria. It separates these petitions into six categories, three of which are directly relevant to this lawsuit: (1) NIW petitions which were filed prior to November 1, 1998 which were still pending on November 12, 1999 <!–[if !supportFootnotes]–> [11] <!–[endif]–> ; (2) NIW petitions which were filed and approved before November 12, 1999; and (3) NIW petitions which were denied prior to November 12, 1999. See 8 C.F.R. §§ 204.12(d)(4), (5), and (6).

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 (September 6, 2000). <!–[if !supportFootnotes]–> [12] <!–[endif]–>

By way of example, an NIW petition was filed on Plaintiff Tandar’s behalf on June 1, 1998. This petition was denied on June 21, 1999. Plaintiff Tandar fits within 8 C.F.R. § 204.12(d)(6) because his NIW petition was denied before November 12, 1999. The CIS has informed him that he is subject to the five-year medical service requirement even though an NIW petition was filed on his behalf before the statutory November 1, 1998 deadline.

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. United States, 444 U.S. 37, 42 (1979). The rule’s addition of the requirement that the NIW petition be pending on November 12, 1999 is not a mere interpretation of the statute, but imposes an additional requirement not mentioned in the statute. The addition of this condition subsequent by the CIS rule is contrary to the statute. Had Congress intended the three-year medical service requirement to apply only to those NIW petitions pending on November 12, 1999, it would have said so.

Here, Drs. Tandar, Sattar, and Jain were all beneficiaries of NIW petitions filed prior to November 1, 1998 and denied prior to November 12, 1999. Because the rule is contrary to the statute, they qualify to apply for adjustment of status under the three-year medical service requirement.

 

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 (September 6, 2000).

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.

 

<!–[if !supportLists]–> VI. <!–[endif]–> 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 secretary’s 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 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 (September 6, 2000).

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 U.S. at 42. If Congress had intended to restrict the granting of NIW petitions to primary care physicians, it would have said so.

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”. <!–[if !supportFootnotes]–> [13] <!–[endif]–> 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 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)(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 agency’s knowledge of the alien’s qualifications and the agency’s background in making determinations on matters involving medical affairs so as to substantiate the finding that the alien’s 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 physician’s qualifications to practice medicine from the recommending Federal Agency. Nor is there a basis to require a statement regarding the Agency’s 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 anapplicant 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’ Vermont Service Center has stated that Drs. Mamuya and Tandar will need to submit this evidence twice. “[They] 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 September 7, 2003.” And then again, to “establish final compliance with [his] service requirement of five years of medical practice…evidence must be submitted no later than 120 days beyond September 7, 2007.” (See Exhibits 1 & 5, pp. 35, 89).

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 physician’s 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 July 12, 2001. On September 10, 2001, he began working for his new employer, Jamaica Hospital’s Brookdale University Hospital and Medical Center. Dr. Jain has been practicing continuously and exclusively in health professional shortage areas since 1998, and has already served more than the required three years. (See Exhibit 3, p.58-61). He already has two separate NIW petitions approved on his behalf. (Id., pp. 66-67). Dr. Jain should not be required to prepare and file a third NIW petition and await CIS’ lengthy adjudication process once again.

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: November 25, 2003 Respectfully submitted,

­­­­­­ ______________________ ­

Carl Shusterman

Attorney for Plaintiffs

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Carl Shusterman

Immigration Attorney Carl Shusterman has 40+ years of experience. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) from 1976 until 1982, when he entered private practice. He has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in SuperLawyers Magazine. Today, he serves as Of Counsel to JR Immigration Law Firm.