SETTLEMENT REACHED IN PHYSICIAN NATIONAL INTEREST WAIVER LAWSUIT Before the summer of 1998, one of the most common kinds of national interest waivers was that received by physicians who agreed to work in medically underserved areas. However, that summer, the INS Administrative Appeals Unit decided a car, Matter of New York State Department of Transportation, that fundamentally reversed the agency’s position on waivers based on work in an underserved area.
Seeing this, and knowing that this sort of waiver work was one of the few things that ensured that many rural Americans had healthcare, Congress passed legislation that restores the national interest waiver to physicians working in underserved areas.This law was passed on November 12, 1999 and took effect immediately. More than nine months later there are still no regulations. The INS says that it will not process applications until it gets around to issuing regulations. Many foreign physicians are in limbo, and many are in a still worse position as their run out of time on their nonimmigrant visas.
One such physician was Dr. Michael Darmadi. He filed a national interest waiver petition before November 1, 1998. The petition was denied under NYSDOT, and the INS essentially ignored his motion to reopen. Dr. Darmadi, through his lawyer George Newman, filed suit against the INS, alleging that regulations were not necessary for the INS to adjudicate his case. The section of the law that applied to physicians who filed a national interest waiver before November 1, 1998 is very straightforward, providing that “in the case of a physician for whom an application for a waiver was filed before November 1, 1998, the Attorney General shall grant a national interest waiver.”
Apparently the INS understood Darmadi’s straightforward and simple argument, and it willingly settled the case. Darmadi was granted one year of employment authorization and indefinite parole into the US. Also, the INS agreed to come to a decision on his national interest waiver application by February 1, 2001. The INS appeared to be eager to settle this case, which makes it likely that they would behave in the same way when presented with similar cases. Physicians interested in pursuing a litigation strategy are welcome to consult with us on how to proceed. Just go to http://www.visalaw.com/intake.html. A letter describing Newman's settlement with the INS is on attorney Carl Shusterman's web site at www.shusterman.com. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
