Complaint Challenging INS’s NIW Regulation for Physicians

Carl Shusterman, CA Bar #58298
Attorney at Law
Law Offices of Carl Shusterman
One Wilshire Building
600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
Telephone (213) 891-9100
Facsimile (213) 623-3720

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

STEFAN SCHNEIDER, ANWAR TANDAR,	)
KOMSU MAMUYA, MUHAMMAD AIJAZ	)
SATTAR, SANDEEP HARBANS JAIN,	)
MAHESH KRISHNAMOORTHY, SARAVANAN	)
KASTHURI, and BOGDAN NEDELESCU,	)
	)
Plaintiffs,	)	Case No. CV 02-9228
	)
v.	)	AMENDED COMPLAINT FOR
JOHN ASHCROFT, Attorney General,	)	DECLARATORY AND
MICHAEL GARCIA, Acting Commissioner of the	)	INJUNCTIVE RELIEF
Immigration and Naturalization Service,	)
and THE IMMIGRATION AND NATURALIZATION	)
SERVICE,	)
Defendants	)
_______________________________	)

Plaintiffs, by and through their undersigned counsel, sue the defendants and allege as follows:

I. INTRODUCTION

1. On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”), Pub. L. 106-95, 113 Stat. 1312 was enacted to encourage foreign-born physicians to practice in medically underserved areas of the United States.

2. The law applies to “any alien physician,” and requires that he serve for a certain number of years, either “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.”

3. The law provides that “the Attorney General shall grant a national interest waiver” to any alien physician who qualifies. It further provides that permanent residence may be granted to a physician once a national interest waiver has been approved and he has fulfilled his required period of medical service.

4. On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published an interim rule, with a request for comments, in the Federal Register, 65 Fed. Reg. 53889-53896. The interim rule became effective on October 6, 2000 and is still in effect today.

5. The interim rule defeats the intent of the law by contradicting its clear language by arbitrarily excluding certain classes of physicians from qualifying for benefits. In addition, the rule attempts to amend or repeal the law by imposing a number of impermissible and unduly burdensome requirements upon physicians who wish to apply for national interest waivers and permanent residence.

II. JURISDICTION

6. This Court has subject matter jurisdiction of this action under 28 U.S.C. §1331 (federal question jurisdiction) because plaintiffs’ claims arise under the laws of the United States, specifically §203(b)(2)(B) of the Immigration and Nationality Act (“INA”); 8 U.S.C. §1153 (b)(2)(B) and applicable regulations arising thereunder. This Court may grant relief in this action under 28 U.S.C. §1651 (All Writs Act); 28 U.S.C. §2201 (Declaratory Judgment Act); and under 5 U.S.C. §701 et seq. (Administrative Procedures Act).

7. There are no administrative remedies available to plaintiffs to redress the grievances described herein. This action challenges the defendants’ regulations, procedural policies, practices, and interpretations of law, not the granting or denial of individual applications. Therefore, the jurisdictional limitations of INA § 242, 8 U.S.C. §1252 are not applicable.

III. VENUE

8. Venue is proper in this Court under 28 U.S.C. §1391(e) because this is a civil action in which the defendants John Ashcroft and Michael Garcia are officers of the United States acting in their official capacities and the INS is an agency of the United States; and because plaintiffs Stefan Schneider and Sean Thomas reside in this judicial district.

IV. DEFENDANTS

9. John Ashcroft is the Attorney General of the United States. He is charged with the administration and enforcement of the immigration laws. INA §103(a); 8 U.S.C. §1103(a). He is sued in his official capacity.

10. Michael Garcia is the acting Commissioner of the INS. He is charged with any and all responsibilities and authority in the administration of the INS as have been delegated or prescribed by the Attorney General. He is sued in his official capacity. The INS is an agency of the United States government. It has primary responsibility for implementation of the immigration laws, including the INA and applicable regulations.

V. STATUTORY FRAMEWORK

11. Pursuant to INA §203(b)(2)(B)(ii)(I); 8 U.S.C. §1153(b)(2)(B)(ii)(I), “the Attorney General shall grant a national interest waiver…on behalf of any alien physician with respect to whom a petition for preference classification has been filed…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.”

12. Pursuant to INA §203(b)(2)(B)(ii); 8 U.S.C. §1153(b)(2)(B)(ii) an alien physician must practice in a shortage area or facility under the jurisdiction of the Secretary of Veterans Affairs for either an aggregate of five or three years-

“No permanent resident visa may be issued to an alien physician…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…until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section 1101(a)(15(J) of this title)…” INA §203(b)(2)(B)(ii)(II); 8 U.S.C. §1153(b)(2)(B)(ii)(II).

“In the case of a physician for whom an application for a waiver was filed…prior to November 1, 1998, the Attorney General shall grant a national interest waiver…except that the alien required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section 1101(a)(15)(J) of this title…” INA §203(b)(2)(B)(ii)(IV); 8 U.S.C. §1153(b)(2)(B)(ii)(IV).

VI. THE INTERIM RULE CONTRADICTS THE CLEAR LANGUAGE OF THE LAW

13. The statute states that it applies to “any alien physician.” INA §203(b)(2)(B)(ii)(I); 8 U.S.C. §1153(b)(2)(B)(ii)(I). The interim rule restricts the benefits of the law to primary care physicians except in the case of physicians directly employed by the Veterans Administration (“VA”). 8 C.F.R. §204.12(a).

14. The law provides that the required period of service for a physician who had a national interest waiver submitted on his behalf prior to November 1, 1998 is an aggregate of three years. INA §203(b)(2)(B)(ii)(IV); 8 U.S.C. §1153(b)(2)(B)(ii)(IV). The interim rule impermissibly adds a requirement that unless the waiver was still pending on November 12, 1999, the date the law was enacted, the physician is subject to a five-year service requirement. 8 C.F.R. §204.12(d).

15. The law provides that, generally, a physician must serve for “an aggregate of 5 years” in order to qualify for permanent residence through a national interest waiver. INA §203(b)(2)(B)(ii)(II); 8 U.S.C. §1153(b)(2)(B)(ii)(II). The interim rule arbitrarily provides different start dates for this service requirement depending on irrelevant factors, including the type of temporary working status the physician possessed and when he obtained an employment authorization document from the INS. For some of these physicians, the service requirement begins when they change status from exchange visitor (“J-1”) to specialty occupation (“H-1B”). For others, all service for the VA or in a medically underserved area is disregarded until a national interest waiver is approved by the INS. 8 C.F.R. §245.18(e). The result is that some physicians are required to serve far longer than the “aggregate of 5 years” mandated by the statute.

16. Although the law imposes no limitation on how long the physician has to meet the service requirement, the interim rule provides that the physician must fulfill the five-year requirement within six years, and the three-year requirement within four years. 8 C.F.R. §245.18(e). While the supplementary information provided by the INS in the Federal Register, 65 Fed. Reg. 53890 recognizes that there may be situations beyond the physician’s control which may interrupt his or her progress toward meeting the requirement in a timely fashion (e.g. pregnancy, illness, termination of employment, etc.), the interim rule does not provide for any waivers or exceptions even where such exceptional circumstances arise.

17. Also, in contravention of the law, the interim rule creates a complex double compliance system whereby the petitioner (often the physician’s employer) for a national interest waiver must apprise the INS of the physician’s progress toward fulfilling the five-year service requirement within 120 days after the first two years have elapsed, and again within 120 days after the five years have elapsed. 8 C.F.R. §245.18(f), (g). Should the employer not submit the required information in a timely fashion, not only will the physician’s application for permanent residence be denied, but the national interest waiver petition submitted on his behalf will be revoked. 8 C.F.R. §245.18(i). Generally, the physician will be rendered unlawfully in the United States and subject to deportation.

18. The interim rule requires that whenever a physician changes the location of his employment, he must have an additional national interest waiver petition submitted on his behalf. 8 C.F.R. §204.12(f). Such a requirement has no basis in the statute.

19. The statute requires that a national interest waiver may be approved only where “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.” INA §203(b)(2)(B)(ii)(I)(bb); 8 U.S.C. §1153(b)(2)(B)(ii)(I)(bb). The interim rule, however, modifies this requirement in two important aspects. It requires that any non-Federal determination be issued not by “a department of public health in any State,” but by a “State department of public health,” thereby excluding regional and local health departments from submitting “public interest” letters. 8 C.F.R. § 204.12(c)(3). Also, for reasons which are unclear and unsupported by the statutory language, the rule requires that the public interest letter must include an endorsement of the physician’s practice capabilities, and that the Federal or State agency must establish its competence to issue such a practice standard evaluation. 8 C.F.R. §204.12(c)(3)(i).

VII. PLAINTIFFS AND INTERESTS AFFECTED

A. Physicians Who Are Specialists

20. Plaintiff Stefan Schneider, M.D. is a resident of Long Beach, California. Dr. Schneider is an infectious disease specialist at the Comprehensive AIDS Resource Education (“C.A.R.E.”) Program Clinics located in Long Beach, a medically underserved area and Wilmington, a federally-designated health professional shortage area. Dr. Schneider has been employed at the C.A.R.E. Clinics since September 1998 in extraordinary ability (“O-1”) status. However, under the INS interim rule, specialists such as Dr. Schneider are ineligible for national interest waivers even if they work in a medically underserved area. Dr. Schneider has no remedy to compel the defendants to accept his petition, other than through this lawsuit.

21. Plaintiff Saravanan Kasthuri, M.D. is a resident of Wenatchee, Washington. Dr. Kasthuri practices radiology at Pacific Medical Imaging located in Wenatchee, a federally-designated health professional shortage area. Dr. Kasthuri has been employed at Pacific Medical Imaging since June 23, 2001 in specialty occupation (“H-1B”) status. However, under the INS interim rule, specialists such as Dr. Kasthuri are ineligible for national interest waivers even if they work in a federally-designated health professional shortage area. Dr. Kasthuri has no remedy to compel the defendants to accept his petition, other than through this lawsuit.

B. Physicians Who Filed National Interest Waiver Petitions Before November 1, 1998

22. Plaintiff Sandeep Harbans Jain, M.D. is a resident of Roslyn Heights, New York. Dr. Jain was employed at Metropolitan Hospital located in East Harlem, a federally-designated health professional shortage area. Dr. Jain worked at the Metropolitan Hospital from August 10, 1998 until August 10, 2001 in H-B status. On January 14, 1998, Dr. Jain filed a national interest waiver. On March 20, 2000, his employer filed a second national interest waiver petition on his behalf. On July 13, 2001, the INS approved both national interest waiver petitions on Dr. Jain’s behalf. Yet, the INS sent Dr. Jain a notice stating that his three-year medical service requirement began on July 13, 2001. Dr. Jain has fulfilled the law’s requirement that he practice medicine in a medically-underserved area for “an aggregate of 3 years.” He has no remedy to compel the defendants to deem his period of service to have begun on August 10, 1998, and to immediately adjust his statusto permanent resident other than through this lawsuit.

23. Plaintiff Muhammad Sattar, M.D. is a resident of Talihina, Oklahoma. Dr. Sattar is employed at the Choctaw Nation Indian Hospital in Talihina, which is a federally-designated health professional shortage area. Dr. Sattar has been employed at the Hospital since March, 1997 in H-1B status. In January 1998, Dr. Sattar’s employer filed a national interest waiver petition on his behalf. The petition was denied in December 1998. On November 20, 2002, Dr. Sattar filed a second national interest waiver petition and an application to adjust status to permanent resident, both of which are currently pending. Dr. Sattar has fulfilled the law’s requirement that he practice medicine in a medically-underserved area for “an aggregate of 3 years.” He has no remedy to compel the defendants to deem his period of service to have begun in March 1997, and to immediately approve his application for adjustment of status, other than through this lawsuit.

24. Plaintiff Anwar Tandar, M.D. is a resident of Natick, Massachusetts. Dr. Tandar was employed at the Worcester Medical Center’s St. Vincent Hospital located in Worcester, a federally-designated health professional shortage area. He worked at the Hospital in H-1B status from July 1997 until June 2000. On June 1, 1998, his employer filed a national interest waiver petition on his behalf. On June 21, 1999 that petition was denied. On January 12, 2001, his new employer, Fallon Clinic, also located in Worcester, filed a second national interest waiver petition on his behalf. On September 8, 2001, the INS approved this second petition, but determined that Dr. Tandar is ineligible to adjust his status until September 8, 2006. Dr. Tandar has fulfilled the law’s requirement that he practice medicine in a medically-underserved area for an “aggregate of 3 years.” He has no remedy to compel the defendants to deem his period of service to have begun in July 1997, and to immediately approve his application for adjustment of status to permanent resident, other than through this lawsuit.

C. Physicians Who Despite Practicing In A Medically Underserved

Area Will Not Have Their Period Of Service Commence Until

The Defendants Approve Their NIW Petitions

25. Plaintiff Mahesh Krishnamoorthy, M.D. is a resident of Royston, Georgia. Dr. Krishnamoorthy is employed at the Tri-County Medical Center located in Franklin County, a federally-designated health professional shortage area. Dr. Krishnamoorthy has been employed at the Center since June 30, 1998 in H-1B status. The law provides that Dr. Krishnamoorthy must serve “an aggregate of 5 years” in order to be eligible to adjust his status to permanent resident. The interim rule requires that Dr. Krishnamoorthy must wait until April 30, 2006 in order to adjust his status since a national interest waiver on his behalf was not approved until April 30, 2001. Dr. Krishnamoorthy has no remedy to compel the defendants to count the four years he has already practiced in an underserved area, other than through this lawsuit.

26. Plaintiff Komsu Mamuya, M.D. is a resident of Boston, Massachusetts. Dr. Mamuya is employed at the Fallon Clinic in Worcester, Massachusetts, a federally-designated health professional shortage area. Dr. Mamuya has been employed at the Clinic since June 30, 1998, in H-1B status. The law provides that Dr. Mamuya must serve “an aggregate of 5 years” in order to be eligible to adjust his status to permanent resident. The interim rule requires that Dr. Mamuya must wait until September 8, 2006 in order to adjust his status since a national interest waiver on his behalf was not approved until September 8, 2001. Dr. Mamuya has no remedy to compel the defendants to count the four years he has already practiced in an underserved area, other than through this lawsuit.

27. Plaintiff Bogdan Nedelescu, M.D. is a resident of Worcester, Massachusetts. Dr. Nedelescu has been employed as a physician in an underserved area since October 6, 1998 in H-1B status. Dr. Nedelescu began his period of service at St. Vincent Hospital then transferred to Worcester Internal Medicine. Both sites are located in Worcester, a federally-designated health professional shortage area. On June 24, 2002, Dr. Nedelescu filed a national interest waiver petition which is currently pending. The law provides that Dr. Nedelescu must serve “an aggregate of 5 years” in order to be eligible to adjust his status to permanent resident. The interim rule impermissibly refuses to recognize the four years Dr. Nedelescu has already worked in a medically underserved area. Dr. Nedelescu has no remedy to compel the defendants to count the years he has already practiced in an underserved area, other than through this lawsuit.

28. Plaintiff Anwar Tandar, M.D. (see Paragraph 24, above) has been employed as a physician in an underserved area since July 1997, in H-1B status. The law provides that Dr. Tandar must serve “an aggregate of 3 years” in order to be eligible to adjust his status to that of a lawful permanent resident. The interim rule requires that Dr. Tandar must wait until September 8, 2006 in order to adjust his status to permanent resident since a national interest waiver on his behalf was not approved until September 8, 2001. Dr. Tandar has no remedy to compel the defendants to count the four years he had already practiced in an underserved area and immediately adjust his status to permanent resident, other than through this lawsuit.

D. Physicians Who Obtain A Public Interest Letter

From A Department Of Public Health

29. Plaintiff Muhammad Sattar, M.D. (see Paragraph 23, above) has obtained public interest letters from both the Latimer and the Leflore County Health Departments. Contrary to the clear language of the statute, which provides that a “department of public health in any State” may certify that a physician’s work is in the public interest, the INS’s interim rule only recognizes letters from state departments of public health, thereby excluding city, county, and regional health departments. Dr. Sattar has no remedy to compel the defendants to accept the letter from the county Health Departments, other than through this lawsuit.

WHEREFORE, plaintiffs request that this Court grant the following relief:

1. Declare that certain portions of the interim rule of September 6, 2000 are not in compliance with the statute, and are null and void;

2. Permanently enjoin the defendants from enforcing such rules;

3. Order the defendants to publish new interim rules which are in accordance with the statutory language of §5 of the Nursing Relief Act within 30 days;

4. Retain jurisdiction over each plaintiff’s case;

5. Award appropriate attorney’s fees and costs to the plaintiffs under the Equal Access to

Justice Act, and

6. Grant such other relief as the Court deems just, equitable and proper.

Respectfully submitted,

______________________

Dated: December 9, 2002

Attorney at Law

Law Offices of Carl Shusterman

One Wilshire Building

600 Wilshire Blvd., Suite 1550

Los Angeles, CA 90017

Telephone (213) 891-9100

Facsimile (213) 623-3720

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