On June 7, 2006 the US Court of Appeals 9th Circuit issued its decision
in the case of Scheider et al vs. Secretary of Homeland Security, et al.
Overall the decision has good news for foreign physicians seeking National
Interest Waivers. At the time of creation of this memorandum, I do not know
if this will be appealed. It may take a little time to assess the true impact
of this decision.
Physicians can obtain Permanent Residency in the U.S. by commitment to provide
services in medically underserved areas for five years. This became law in 1999
under the Nursing Relief Act. On September 6, 2000, regulations were issued to
implement the Nursing Relief Act.
The case before the 9th circuit challenged five section of the regulations.
I shall address each challenge and the court's decision one at a time.
(1) The regulation imposed a rule that the Immigrant doctor's practice in a
shortage area does not start until the date of the notice approving the NIW
request on form I-140. The court struck down this rule. The law passed by
Congress said nothing about before or after approval of the I-140.
The regulation is "an aggregate" of five years in shortage areas before
obtaining LPR status. The only limit is that time spent in J-1 status does
not count toward five year. New rule: Practice in a shortage area begins when
the physician starts working in the shortage area. Usually this will be in
H-1B status. Time spent in J-1 status does not count toward the five years.
(2) The Court struck down the rule pertaining to applications filed before
November 11, 1998 that divided such doctors into two groups, those who were
denied before November 12, 1999 and those whose application were still
pending as of November 12, 1999. The 1st group had to fulfill the 5 year
requirement; the 2nd group, the old 3 year requirement. New rule: Physicians
covered under the old 3 year service rule are no longer divided into the 2
groups referenced.
(3) The regulation impose a requirement that the immigrant doctor must
complete the underserved area medical practice within a specific time frame.
Those subject to the 3 year requirement had to complete service in 4 years,
and those subject to the 5 year requirement (the existing law) had to complete
service within 6 years. The Court struck down this time limitation. New rule:
There is no time limit for fulfilling the 3 or 5 year commitment to serve in
shortage areas.
(4) The decision upheld the reporting requirements of the regulations.
These require the doctor to submit evidence within 120 days of completion of
the second year of the medical practice and additional evidence within 120
days of completing the fifth year of the medical practice requirement. This stands,
there is no new rule.
(5) The Court, unfortunately, did not rule on the regulation most persons
were interested in: whether the waiver would be available to any physician
or only to those practicing primary care. The law promulgated by Congress
offers the waiver to "any alien physician." The regulations limit the waiver
in such a way that the only physicians safe to proceed are those in primary care.
The regulation seems to go far a field from the intent of Congress. Nevertheless,
the Court made no decision on this matter.
