A lawsuit was filed this week challenging INS regulations implementing the 1999 law providing for National Interest Waivers for physicians. The suit was filed on behalf of nine physicians working in Massachusetts, New York, Georgia, Oklahoma, Washington and California.
The overriding theory of the case is that a federal regulation which conflicts with a federal statute is invalid as a matter of law. The suit is seeking to strike down sections of the regulations that contradict the law. The physicians, being represented by California immigration lawyer Carl Shusterman, challenge several aspects of the regulations:
- The lawsuit challenges the INS’ regulation limiting the NIW program to primary care physicians even though the law says that it applies to any physician working in a medically underserved area.
- The regulations place very strict time restrictions on when an NIW application must be filed even though the statute contains no such limits. The five years of work in an underserved area must be met within a six-year period. The five years will not start until after the NIW is filed. And the support letter from a state health department must be received in the six months prior to filing the application.
- The law allows doctors with cases FILED before November 1, 1998 to work for three years rather than five years. The INS says the application must have been PENDING on that date.
- The law says that a “department of public health in any State” can sponsor a waiver. When the law passed, most people interpreted this literally and believed that local health departments could sponsor waivers as well as state health departments. The INS has interpreted the law to only allow state health departments.
- The regulations require a new NIW petition every time a physician relocates. There is no mention of such a rule in the statute.
The NIW law reads as follows:
SEC. 5. NATIONAL INTEREST WAIVERS OF JOB OFFER REQUIREMENTS FOR ALIENS WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES OR ALIENS OF EXCEPTIONAL ABILITY.
Section 203(b)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(2)(B)) is amended to read as follows:
`(B) WAIVER OF JOB OFFER-
`(i) NATIONAL INTEREST WAIVER- Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
`(ii) PHYSICIANS WORKING IN SHORTAGE AREAS OR VETERANS FACILITIES-
`(I) IN GENERAL- The Attorney General shall grant a national interest waiver pursuant to clause (i) on behalf of any alien physician with respect to whom a petition for preference classification has been filed under subparagraph (A) 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.
`(II) PROHIBITION- No permanent resident visa may be issued to an alien physician described in subclause (I) by the Secretary of State under section 204(b), and the Attorney General may not adjust the status of such an alien physician from that of a nonimmigrant alien to that of a permanent resident alien under section 245, until such time as the alien has worked full time as a physician for an aggregate of five years (not including the time served in the status of an alien described in section 101(a)(15)(J)), 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.
`(III) STATUTORY CONSTRUCTION- Nothing in this subparagraph may be construed to prevent the filing of a petition with the Attorney General for classification under section 204(a), or the filing of an application for adjustment of status under section 245, by an alien physician described in subclause (I) prior to the date by which such alien physician has completed the service described in subclause (II).
`(IV) EFFECTIVE DATE- The requirements of this subsection do not affect waivers on behalf of alien physicians approved under section 203(b)(2)(B) before the enactment date of this subsection. In the case of a physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to section 203(b)(2)(B) except that the alien is required to have worked full time as a physician for an aggregate of three years (not including time served in the status of an alien described in section 101(a)(15)(J)) before a visa can be issued to the alien under section 204(b) or the status of the alien is adjusted to permanent resident under section 245.’.
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