Physicians Lawsuit Challenges NIW Regulations (Shusterman)
Dec 4th 2002, 6:14 am
#1
Guest
Posts: n/a
Physicians Lawsuit Challenges NIW Regulations (Shusterman)
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
Dec 4th 2002, 6:50 am
#2
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
Carl Shusterman wrote:
>
> 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.
And, the other 7?
>
> 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.
And, the other 7?
Dec 4th 2002, 5:40 pm
#3
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
"mrtravel" wrote in message
news:[email protected]...
> Carl Shusterman wrote:
> >
> > 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.
> And, the other 7?
What do you care, mrtravel?
Just say "thank you".
We need more lawyers like him.
news:[email protected]...
> Carl Shusterman wrote:
> >
> > 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.
> And, the other 7?
What do you care, mrtravel?
Just say "thank you".
We need more lawyers like him.
Dec 4th 2002, 6:19 pm
#4
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
Jesus man, he had a smiley face after it. Chill out!
"FCS" wrote in message
news:[email protected]...
> "mrtravel" wrote in message
> news:[email protected]...
> >
> > Carl Shusterman wrote:
> > >
> > > 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.
> >
> > And, the other 7?
> >
> What do you care, mrtravel?
> Just say "thank you".
> We need more lawyers like him.
"FCS" wrote in message
news:[email protected]...
> "mrtravel" wrote in message
> news:[email protected]...
> >
> > Carl Shusterman wrote:
> > >
> > > 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.
> >
> > And, the other 7?
> >
> What do you care, mrtravel?
> Just say "thank you".
> We need more lawyers like him.
Dec 5th 2002, 3:14 am
#5
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
FCS wrote:
>
> "mrtravel" wrote in message
> news:[email protected]...
> >
> > Carl Shusterman wrote:
> > >
> > > 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.
> >
> > And, the other 7?
> >
> What do you care, mrtravel?
> Just say "thank you".
> We need more lawyers like him.
What do you care if I want to know more about the doctors?
Doh! I put a ""
I was also curious since you normally wouldn't make a statement saying
"I have 9 brothers. One of them is a doctor and another does drugs", and
then not have people curious about the other 7.
>
> "mrtravel" wrote in message
> news:[email protected]...
> >
> > Carl Shusterman wrote:
> > >
> > > 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.
> >
> > And, the other 7?
> >
> What do you care, mrtravel?
> Just say "thank you".
> We need more lawyers like him.
What do you care if I want to know more about the doctors?
Doh! I put a "
"I was also curious since you normally wouldn't make a statement saying
"I have 9 brothers. One of them is a doctor and another does drugs", and
then not have people curious about the other 7.
Dec 5th 2002, 6:55 am
#6
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
How does one know, if we "need more
lawyers like him,"when the intentions
of the lawsuit are so vague.
There are about 30 or40 million citizens,from every corner of the Union
who are medically underserved.So actually,the information posted
is simply babble without a more complete
explanation.
John M
lawyers like him,"when the intentions
of the lawsuit are so vague.
There are about 30 or40 million citizens,from every corner of the Union
who are medically underserved.So actually,the information posted
is simply babble without a more complete
explanation.
John M
Dec 5th 2002, 11:57 am
#7
BE Forum Addict
Joined: Oct 2002
Location: Wales, UK
Posts: 1,216
Oh I don't know...............anyone who sues Ashcroft has my support. The man's an absolute menace!
Cheers,
Leslie
Cheers,
Leslie
Dec 5th 2002, 1:13 pm
#8
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
Opps,
I must amend my previous post.I did find
further information regarding the lawsuit.
In my past,I have worked with physicians
of other countries,in some of our smaller
communities.Some were very good,more were very bad.
My understanding of the lawsuit,is that it
deals with how soon an alien physician
can gain permanent residency.
Are these doctors from under developed
countries?
We do have an abundance of highly
trained US doctors,it is to bad that most
do not wish to work in medically under served areas.I suppose it is
better to have
a doctor,opposed to no doctor.
John M
I must amend my previous post.I did find
further information regarding the lawsuit.
In my past,I have worked with physicians
of other countries,in some of our smaller
communities.Some were very good,more were very bad.
My understanding of the lawsuit,is that it
deals with how soon an alien physician
can gain permanent residency.
Are these doctors from under developed
countries?
We do have an abundance of highly
trained US doctors,it is to bad that most
do not wish to work in medically under served areas.I suppose it is
better to have
a doctor,opposed to no doctor.
John M
Dec 5th 2002, 5:21 pm
#9
Banned
Joined: Sep 2002
Location: United States
Posts: 3,825
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
Originally posted by John Mott
Opps,
I must amend my previous post.I did find
further information regarding the lawsuit.
In my past,I have worked with physicians
of other countries,in some of our smaller
communities.Some were very good,more were very bad.
My understanding of the lawsuit,is that it
deals with how soon an alien physician
can gain permanent residency.
Are these doctors from under developed
countries?
We do have an abundance of highly
trained US doctors,it is to bad that most
do not wish to work in medically under served areas.I suppose it is
better to have
a doctor,opposed to no doctor.
John M
Opps,
I must amend my previous post.I did find
further information regarding the lawsuit.
In my past,I have worked with physicians
of other countries,in some of our smaller
communities.Some were very good,more were very bad.
My understanding of the lawsuit,is that it
deals with how soon an alien physician
can gain permanent residency.
Are these doctors from under developed
countries?
We do have an abundance of highly
trained US doctors,it is to bad that most
do not wish to work in medically under served areas.I suppose it is
better to have
a doctor,opposed to no doctor.
John M
I don't do these types of Dr. Cases, and although I've read up on them and have some knowledge of them, they are way outside my chosen area of practice.
Maybe you can tell me (I think I know the answer, and I’m just throwing this out for food for thought in response to the last line of your last posting). Once the Doctor gets his or her LPR status, does he or she have to continue serving in the medically underserved area, or can he or she then move to the more populated areas and cash in?
And don't get me wrong. I'm not against a doctor moving to an area where he or she might be able to make more money for their investment of time, energy and funds to become a doctor. Nor do I have any problem with a valiant immigration attorney sticking up for the rights of his Doctor clients and getting the INS to play by the rules Congress enacted. All I'm doing is pointing out that the desired result of the lawsuit just might lead to doctors departing the medically underserved areas sooner than they would according to how INS apparently wants to interpret the rules (but again, if these are the rules Congress enacted, then I say "good luck, Carl [Shusterman]").
M.U.
Dec 5th 2002, 9:39 pm
#10
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
Mr.Udall,
Yes,I agree with all you have speculated
on.I may have posted an opinion on a gut reaction to a poster whom gave
applause to Shustermans lawsuit, possible,with out knowing the
ramifications of the outcome
of the lawsuit.
I do not know if after obtaining permanent status,the doctors can move
to areas offering more pay for their services,it is a
natural consequence of human nature.Most physicians have enormous
time and money invested in their chosen profession,to earn maximum pay
is only natural.But the high cost of obtaining
medical service for all of us,has become
so controversial,suspect of cost and control manipulations,that it is
difficult to
decipher,whether one 's nod of approval,
Is for an act or decision to help the people,or the medical "business",
including the physicians.
After reading this NG for the past few months,I have grown to appreciate
the
generosity,you offer from your highly skilled profession.If only their
were a greater share of physicians and lawyers
that offer their service at a cost that the average person can afford,it
would go along way,to begin the taming of an out
of control economy.
John M
Yes,I agree with all you have speculated
on.I may have posted an opinion on a gut reaction to a poster whom gave
applause to Shustermans lawsuit, possible,with out knowing the
ramifications of the outcome
of the lawsuit.
I do not know if after obtaining permanent status,the doctors can move
to areas offering more pay for their services,it is a
natural consequence of human nature.Most physicians have enormous
time and money invested in their chosen profession,to earn maximum pay
is only natural.But the high cost of obtaining
medical service for all of us,has become
so controversial,suspect of cost and control manipulations,that it is
difficult to
decipher,whether one 's nod of approval,
Is for an act or decision to help the people,or the medical "business",
including the physicians.
After reading this NG for the past few months,I have grown to appreciate
the
generosity,you offer from your highly skilled profession.If only their
were a greater share of physicians and lawyers
that offer their service at a cost that the average person can afford,it
would go along way,to begin the taming of an out
of control economy.
John M
Dec 6th 2002, 3:42 am
#11
BE Enthusiast
Joined: Dec 2002
Location: Minnesota
Posts: 303
hmmmmmmmmm
Well it's nice to know that the Doctors have drawn the attention of the attorneys willing to "Stand up for their rights by golly!" How noble, I guess the rest of us will just have to take it in shorts being unjustly treated citizens who just can't line the poctets of those "High Profile representives of Justice". I am appreciative of the attorney's who have been so kind as to give thier advice here, I really am, but let's face it, we are taking it in the shorts by the way family visa's are being handled and I don't see the push for justice for us. Where are the brave attorney's who should take on cases of families being seperated by red tape? Where are the High Profile attorneys that should be organizing class action suits on our behalf? I never realized untill I had to file a K-1, the injustice being done to Citizens and PRs who are legitimately trying to keep families together and that is a real injustice. I was thinking that we should petition Bill O'Reilly to take on the INS, as annoying as he can be sometimes, he gets attention where it is needed sometimes. Well I am done ranting for now.
Thanks again to those attorneys who do give their time to help out.
JeffB
1rst NOA Nov 12 NSC
Thanks again to those attorneys who do give their time to help out.
JeffB
1rst NOA Nov 12 NSC
Dec 6th 2002, 7:41 pm
#12
Guest
Posts: n/a
Re: Physicians Lawsuit Challenges NIW Regulations (Shusterman)
JeffB wrote in message news:...
> Well it's nice to know that the Doctors have drawn the attention of the
> attorneys willing to "Stand up for their rights by golly!" How noble, I
> guess the rest of us will just have to take it in shorts being unjustly
> treated citizens who just can't line the poctets of those "High Profile
> representives of Justice". I am appreciative of the attorney's who have
> been so kind as to give thier advice here, I really am, but let's face
> it, we are taking it in the shorts by the way family visa's are being
> handled and I don't see the push for justice for us. Where are the brave
> attorney's who should take on cases of families being seperated by red
> tape? Where are the High Profile attorneys that should be organizing
> class action suits on our behalf? I never realized untill I had to file
> a K-1, the injustice being done to Citizens and PRs who are legitimately
> trying to keep families together and that is a real injustice. I was
> thinking that we should petition Bill O'Reilly to take on the INS, as
> annoying as he can be sometimes, he gets attention where it is needed
> sometimes. Well I am done ranting for now.
> Thanks again to those attorneys who do give their time to help out.
> JeffB
> 1rst NOA Nov 12 NSC
* Prez Bush wants to privatize some 800,000 Fed jobs
INS should all be privatized!
* Congress pass a special visa law for Docs to serv in medically
strapped areas - that would be all areas where people do not have
health insurance and are deprived. But INS has put additional
beuracraatic regs to complicate things.
* Instead of blaming immigrants (Poster justmyOp in close FloodGates
thread) America should focus on job creation, developing renewable
energy technologies, which will lesson our dependance on foreign oil
and thereby create more jobs and when there is a middle east crisis
our economy will be less damaged.
* Deny Federal contracts to those companies that move their
headquarters overseas to avoid taxes. Cut taxes for those that make
less than 30k a year. Have a single payer system that does not
penalize for married people or make people file jointly - each person
should be responsible on for their own taxes reguardless of marraige.
* Our American system does not have national healthcare like european
countries. Then allow for a straight deduction from paying health
insurance premiums for self or relatives from any tax owed to local,
state and Federal taxes.
* Americans pay a lot of taxes and our GDP is in the trillions per
year, yet there are 41 million Americans without health plans! Why?
Allow payroll and income taxes to be applied directly to health
insurance premiums then.
* WOW our economy has really taken a slide down since 2 years ago!
Thanks for reading my ramblings!
Scott
P.S. Support our TROOPS and VETERANS!!!!
> Well it's nice to know that the Doctors have drawn the attention of the
> attorneys willing to "Stand up for their rights by golly!" How noble, I
> guess the rest of us will just have to take it in shorts being unjustly
> treated citizens who just can't line the poctets of those "High Profile
> representives of Justice". I am appreciative of the attorney's who have
> been so kind as to give thier advice here, I really am, but let's face
> it, we are taking it in the shorts by the way family visa's are being
> handled and I don't see the push for justice for us. Where are the brave
> attorney's who should take on cases of families being seperated by red
> tape? Where are the High Profile attorneys that should be organizing
> class action suits on our behalf? I never realized untill I had to file
> a K-1, the injustice being done to Citizens and PRs who are legitimately
> trying to keep families together and that is a real injustice. I was
> thinking that we should petition Bill O'Reilly to take on the INS, as
> annoying as he can be sometimes, he gets attention where it is needed
> sometimes. Well I am done ranting for now.
> Thanks again to those attorneys who do give their time to help out.
> JeffB
> 1rst NOA Nov 12 NSC
* Prez Bush wants to privatize some 800,000 Fed jobs
INS should all be privatized!
* Congress pass a special visa law for Docs to serv in medically
strapped areas - that would be all areas where people do not have
health insurance and are deprived. But INS has put additional
beuracraatic regs to complicate things.
* Instead of blaming immigrants (Poster justmyOp in close FloodGates
thread) America should focus on job creation, developing renewable
energy technologies, which will lesson our dependance on foreign oil
and thereby create more jobs and when there is a middle east crisis
our economy will be less damaged.
* Deny Federal contracts to those companies that move their
headquarters overseas to avoid taxes. Cut taxes for those that make
less than 30k a year. Have a single payer system that does not
penalize for married people or make people file jointly - each person
should be responsible on for their own taxes reguardless of marraige.
* Our American system does not have national healthcare like european
countries. Then allow for a straight deduction from paying health
insurance premiums for self or relatives from any tax owed to local,
state and Federal taxes.
* Americans pay a lot of taxes and our GDP is in the trillions per
year, yet there are 41 million Americans without health plans! Why?
Allow payroll and income taxes to be applied directly to health
insurance premiums then.
* WOW our economy has really taken a slide down since 2 years ago!
Thanks for reading my ramblings!
Scott
P.S. Support our TROOPS and VETERANS!!!!
