Physicians Lawsuit Challenges NIW Regulations
Dec 4th 2002, 6:16 am
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Physicians Lawsuit Challenges NIW Regulations
On December 4, we filed a complaint in the Federal District Court against
Mr. Ashcroft, the Attorney General, and Mr. Garcia, the new Acting INS
Commissioner.
The plaintiffs are nine physicians who practice in medically underserved
areas across the U.S. One practices in an AIDS clinic. Another practices
on an Indian reservation.
In 1999, Congress passed a law to make it easier for such physicians to
obtain permanent residence through national interest waivers (NIWs) than was
possible under the INS's decision in Matter of New York State Department of
Transportation.
Someone in the INS obviously was not thrilled about the new law, for in
2000, the agency published interim regulations which added numerous
restrictions to the clear language of the law.
Where Congress states that "any alien physician" working in a
medically-underserved area for a certain number of years may qualify for an
NIW, the interim rule interprets this to mean that "no specialists need
apply."
Where Congress says that physicians who practice in an underserved area for
"an aggregate of 5 years" are eligible, the interim rules prescribe that,
for some physicians, the five years do not start until after the INS
approves an NIW petition. The time spent practicing in an underserved area
before the petition is approved simply do not count.
The list of inconsistencies between the law and the regulation goes on and
on.
Fortunately, courts hold that a federal regulation which is in conflict with
a federal statute is invalid as a matter of law. In re: Watson, 161 F.3d
593 (9th Cir. 1998).
Nevertheless, most physicians and their attorneys decided that it was better
to switch than fight. Why not apply for an RIR labor certification since
the INS has effectively blocked the NIW law?
For the past two years, our law firm has taken this path.
However, this past summer, we decided to litigate this issue in the Federal
Courts. We asked physicians who had been adversely affected by the interim
regulations to come forward. See
http://shusterman.com/jul02.html#7
We are very pleased by your response. Physicians from New York,
Massachusetts, Georgia, Washington, Oklahoma and California volunteered to
serve as plaintiffs in the lawsuit.
We look forward to a restoration of the right of all eligible physicians to
qualify for national interest waivers.
*********************
Carl Shusterman served as a Trial Attorney for the U.S. Immigration Service
(1976-82) before entering private practice. He heads a four-attorney firm
specializing exclusively in immigration law. He maintains an extensive
website entitled "Immigration: A Practical Guide to Immigrating to the U.S."
containing over 1,000 articles on all phases of immigration law. He is the
author of SHUSTERMAN'S IMMIGRATION UPDATE, a free, monthly e-mail newsletter
on immigration laws and procedures. You can subscribe online at
http://shusterman.com/subscribe.html
Mr. Ashcroft, the Attorney General, and Mr. Garcia, the new Acting INS
Commissioner.
The plaintiffs are nine physicians who practice in medically underserved
areas across the U.S. One practices in an AIDS clinic. Another practices
on an Indian reservation.
In 1999, Congress passed a law to make it easier for such physicians to
obtain permanent residence through national interest waivers (NIWs) than was
possible under the INS's decision in Matter of New York State Department of
Transportation.
Someone in the INS obviously was not thrilled about the new law, for in
2000, the agency published interim regulations which added numerous
restrictions to the clear language of the law.
Where Congress states that "any alien physician" working in a
medically-underserved area for a certain number of years may qualify for an
NIW, the interim rule interprets this to mean that "no specialists need
apply."
Where Congress says that physicians who practice in an underserved area for
"an aggregate of 5 years" are eligible, the interim rules prescribe that,
for some physicians, the five years do not start until after the INS
approves an NIW petition. The time spent practicing in an underserved area
before the petition is approved simply do not count.
The list of inconsistencies between the law and the regulation goes on and
on.
Fortunately, courts hold that a federal regulation which is in conflict with
a federal statute is invalid as a matter of law. In re: Watson, 161 F.3d
593 (9th Cir. 1998).
Nevertheless, most physicians and their attorneys decided that it was better
to switch than fight. Why not apply for an RIR labor certification since
the INS has effectively blocked the NIW law?
For the past two years, our law firm has taken this path.
However, this past summer, we decided to litigate this issue in the Federal
Courts. We asked physicians who had been adversely affected by the interim
regulations to come forward. See
http://shusterman.com/jul02.html#7
We are very pleased by your response. Physicians from New York,
Massachusetts, Georgia, Washington, Oklahoma and California volunteered to
serve as plaintiffs in the lawsuit.
We look forward to a restoration of the right of all eligible physicians to
qualify for national interest waivers.
*********************
Carl Shusterman served as a Trial Attorney for the U.S. Immigration Service
(1976-82) before entering private practice. He heads a four-attorney firm
specializing exclusively in immigration law. He maintains an extensive
website entitled "Immigration: A Practical Guide to Immigrating to the U.S."
containing over 1,000 articles on all phases of immigration law. He is the
author of SHUSTERMAN'S IMMIGRATION UPDATE, a free, monthly e-mail newsletter
on immigration laws and procedures. You can subscribe online at
http://shusterman.com/subscribe.html
