Carl Shusterman's Immigration Update
, 05-09-2016 at 03:03 PM (7283 Views)
On March 9, 2016, the USCIS designated Matter of H-V-P, I.D. 16270 (AAO) as a precedent decision. It provides that the physicians who are specialists who practice in a medically-underserved area for a minimum of 5 years are entitled to permanent residence in the US through a National Interest Waiver (NIW).
Is this really news? No, but the Director of USCIS’s Texas Service Center had denied that the physician’s NIW, holding that only primary care physicians are entitled to such waivers, this despite the fact that the USCIS has approved thousands of such NIWs for specialists over the past decade.
This requires a little recounting of history.
The Law (1999)
On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”), was enacted to encourage foreign-born physicians to practice in medically underserved areas of the US.
The law allows “all alien physicians” who practice for at least 5 years in a medically-underserved area to qualify a green card.
The Regulation (2000)
On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published a regulation which restricted the applicability of the law to primary care physicians. The regulation also contained a number of other restrictive provisions not found in the law.
The Lawsuit (2002-2006)
On December 9, 2002, one Grumpy Immigration Attorney (Yours Truly) filed a lawsuit in Federal District Court challenging the various restrictive clauses contained in the regulation which contradicted the generous terms of the law.
On my birthday in 2004, the Federal Judge dismissed our lawsuit. Happy Birthday, Carl!
We appealed this decision to the US Court of Appeals for the 9th Circuit, and on June 7, 2006, in Schneider v. Chertoff, the Appeals Court unanimously ruled in our favor.
However, the Court declined to rule on one of most important restrictions, that prohibiting specialist from qualifying for NIWs. Among the many physicians across the US who volunteered to be plaintiffs in our lawsuit, only one was a specialist. We made sure that his attorney filed an I-140 NIW on his behalf. The USCIS sent him a Request for Evidence (RFE) asking why he, as a specialist, was applying for an NIW since the regulations specifically prohibited this. Rather than respond to the RFE, the attorney simply failed to take action, and the I-140 was denied because of his failure to submit a timely response.
Hence, the Appeals Court declined to decide this important issue.
The Memo (2007)
Although I was thrilled to win the lawsuit, I was disappointed that the Court had not ruled on this important issue.
A couple of weeks later, I spoke at the Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.
It was there that I had a conversation with a top official of the USCIS. He was concerned that I was requesting attorney’s fees from the government for my 4 years of work in Schneider v. Chertoff under the Equal Access to Justice Act (EAJA). In turn, I expressed my concern about having to sue the government once again to resolve the issue of whether a specialist physician could qualify for an NIW.
We agreed that if I would drop my request for EAJA fees, he would include a clause in the upcoming USCIS memo stating that physicians who were specialists could qualify for green cards through NIWs.
On January 23, 2007, the USCIS issued a policy memo which declared that “though not mandated by the Schneider decision, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide specialty care.”
NIWs for Physician Specialists
Since 2007, our law firm has obtained green cards for thousands of physicians, many of them specialists, through the NIW process as well as through PERM, but apparently not all attorneys have been so fortunate. See below.
Matter of H-V-P (2016)
In Matter of H-V-P, the Director of the Texas Service Center denied the NIW petition on behalf of a Hematologist/Oncologist on the ground that he practiced in a HPSA/MUA, not in a Physician Shortage Area (PSA), and that only specialists who practiced in PSAs should be able to apply for NIWs.
The USCIS’s Administrative Appeals Office (AAO) rejected this argument citing the 2007 memo.
One month later, the USCIS designated Matter of H-V-P as a precedent decision, meaning that USCIS officers cannot deny NIWs to physicians simply because they are specialists.
Although this battle took almost 2 decades to resolve, I am very pleased to have fought the good fight, and forced the agency to follow the law.