Physicians: VICTORY for MDs in Federal Appeals Court

Physicians: VICTORY for MDs in Federal Appeals Court On June 7, the U.S. Court of Appeals for the Ninth Circuit, in Schneider v. Chertoff, overturned the decision of a Federal District Court, and ruled in favor of our plaintiff physicians, voiding significant parts of the restrictive National Interest Waiver (NIW) regulations issued by the INS in 2000. First, the Court held that the language of the law which requires most physicians to practice in underserved areas for "an aggregate of five years" was clear, and that the INS could not establish artificial "start dates" depending on the type of nonimmigrant status of the physician. For example, one of our plaintiff physicians had worked in an AIDS Clinic in an underserved area on an O-1 ("person of extraordinary ability") visa for over 4 years before we obtained a J waiver on his behalf. The INS regulations would have forced him to work for another 5 years in the area, for a total of 9 years before obtaining permanent residence. The Court ruled that the law requires the INS to count time worked in the underserved area in O-1 status prior to being granted a J waiver. Similarly, two of our plaintiff physicians had completed their medical residencies in H-1B status. They had worked in underserved areas for many years before NIWs were filed on their behalf. The INS rule stated that no time worked in underserved areas could be counted toward the 5-year requirement until after the NIW petitions were approved by the agency. Again, the Court ruled that all work performed in the underserved areas, both before and after the NIW petitions were approved must be counted toward the 5 year requirement. Second, the court ruled that the clear language of the law requires the agency to grant permanent residence to physicians whose NIW petitions were filed on or before November 1, 1998 and who practiced in underserved areas for 3 years. The court voided the portion of the INS regulation which required such petitions to be pending on the date that the law was enacted, on November 12, 1999. Third, the Court found no basis in the law for the INS rule that physicians had to complete their 5-year service requirement in 6 years, or their 3-year service requirement in 4 years. The Court upheld the portion of the regulations which requires physicians to establish that they are complying with the law at two separate stages, although with the voiding of the 4 and 6 year limitations, it is questionable what value this "double compliance" system would provide. Finally, the Court declined to rule on whether specialists who agree to work in underserved areas are eligible to obtain permanent residence through NIWs. Our one plaintiff specialist and his attorney failed to respond to a request for evidence causing the agency to deny his NIW petition due to abandonment. If necessary, we intend to file another lawsuit in order to resolve this last issue. If you are a specialist who would like to obtain permanent residence through a National Interest Waiver, we would be happy to represent you. You may schedule a legal consultation at http://shusterman.com/intake.html I would like to thank my associate Elif Keles, Esq. for writing and re-writing all of our legal briefs in this case until I deemed them "perfect", and to Trina Realmuto, Esq. of AILF for writing an excellent amicus curiae ("friend of the court") brief to the 9th Circuit and to the Director of the Legal Action Center of the American Immigration Lawyers Foundation (AILF), Nadine Wettstein, for her invaluable assistance. See AILF's web site at http://www.ailf.org All papers filed in this case as well as the oral arguments and the final decision of the Appeals Court may be accessed online at http://shusterman.com/toc-phys.html#3