According to Shusterman:
3. Physicians: VICTORY for MDs in Federal Appeals Court
On June 7, the U.S. Court of Appeals for the Ninth Circuit, in
Schneider v. Chertoff, overturned the decision of a Federal
District Court, and ruled in favor of our plaintiff physicians,
voiding significant parts of the restrictive National Interest
Waiver (NIW) regulations issued by the INS in 2000.
First, the Court held that the language of the law which requires
most physicians to practice in underserved areas for "an
aggregate of five years" was clear, and that the INS could not
establish artificial "start dates" depending on the type of
nonimmigrant status of the physician. For example, one of our
plaintiff physicians had worked in an AIDS Clinic in an
underserved area on an O-1 ("person of extraordinary ability")
visa for over 4 years before we obtained a J waiver on his
behalf. The INS regulations would have forced him to work for
another 5 years in the area, for a total of 9 years before
obtaining permanent residence. The Court ruled that the law
requires the INS to count time worked in the underserved area in
O-1 status prior to being granted a J waiver.
Similarly, two of our plaintiff physicians had completed their
medical residencies in H-1B status. They had worked in
underserved areas for many years before NIWs were filed on their
behalf. The INS rule stated that no time worked in underserved
areas could be counted toward the 5-year requirement until after
the NIW petitions were approved by the agency. Again, the Court
ruled that all work performed in the underserved areas, both
before and after the NIW petitions were approved must be counted
toward the 5 year requirement.
Second, the court ruled that the clear language of the law
requires the agency to grant permanent residence to physicians
whose NIW petitions were filed on or before November 1, 1998 and
who practiced in underserved areas for 3 years. The court voided
the portion of the INS regulation which required such petitions
to be pending on the date that the law was enacted, on November
12, 1999.
Third, the Court found no basis in the law for the INS rule that
physicians had to complete their 5-year service requirement in 6
years, or their 3-year service requirement in 4 years.
The Court upheld the portion of the regulations which requires
physicians to establish that they are complying with the law at
two separate stages, although with the voiding of the 4 and 6
year limitations, it is questionable what value this "double
compliance" system would provide.
Finally, the Court declined to rule on whether specialists who
agree to work in underserved areas are eligible to obtain
permanent residence through NIWs. Our one plaintiff specialist
and his attorney failed to respond to a request for evidence
causing the agency to deny his NIW petition due to abandonment.
If necessary, we intend to file another lawsuit in order to
resolve this last issue. If you are a specialist who would like
to obtain permanent residence through a National Interest Waiver,
we would be happy to represent you. You may schedule a legal
consultation at
3. Physicians: VICTORY for MDs in Federal Appeals Court
On June 7, the U.S. Court of Appeals for the Ninth Circuit, in
Schneider v. Chertoff, overturned the decision of a Federal
District Court, and ruled in favor of our plaintiff physicians,
voiding significant parts of the restrictive National Interest
Waiver (NIW) regulations issued by the INS in 2000.
First, the Court held that the language of the law which requires
most physicians to practice in underserved areas for "an
aggregate of five years" was clear, and that the INS could not
establish artificial "start dates" depending on the type of
nonimmigrant status of the physician. For example, one of our
plaintiff physicians had worked in an AIDS Clinic in an
underserved area on an O-1 ("person of extraordinary ability")
visa for over 4 years before we obtained a J waiver on his
behalf. The INS regulations would have forced him to work for
another 5 years in the area, for a total of 9 years before
obtaining permanent residence. The Court ruled that the law
requires the INS to count time worked in the underserved area in
O-1 status prior to being granted a J waiver.
Similarly, two of our plaintiff physicians had completed their
medical residencies in H-1B status. They had worked in
underserved areas for many years before NIWs were filed on their
behalf. The INS rule stated that no time worked in underserved
areas could be counted toward the 5-year requirement until after
the NIW petitions were approved by the agency. Again, the Court
ruled that all work performed in the underserved areas, both
before and after the NIW petitions were approved must be counted
toward the 5 year requirement.
Second, the court ruled that the clear language of the law
requires the agency to grant permanent residence to physicians
whose NIW petitions were filed on or before November 1, 1998 and
who practiced in underserved areas for 3 years. The court voided
the portion of the INS regulation which required such petitions
to be pending on the date that the law was enacted, on November
12, 1999.
Third, the Court found no basis in the law for the INS rule that
physicians had to complete their 5-year service requirement in 6
years, or their 3-year service requirement in 4 years.
The Court upheld the portion of the regulations which requires
physicians to establish that they are complying with the law at
two separate stages, although with the voiding of the 4 and 6
year limitations, it is questionable what value this "double
compliance" system would provide.
Finally, the Court declined to rule on whether specialists who
agree to work in underserved areas are eligible to obtain
permanent residence through NIWs. Our one plaintiff specialist
and his attorney failed to respond to a request for evidence
causing the agency to deny his NIW petition due to abandonment.
If necessary, we intend to file another lawsuit in order to
resolve this last issue. If you are a specialist who would like
to obtain permanent residence through a National Interest Waiver,
we would be happy to represent you. You may schedule a legal
consultation at