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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Physicians: Conrad Program, NIW Lawsuit And J Waivers
by Carl Shusterman

I. Conrad Program To Be Extended And Expanded

Last summer, Senator Brownback's chief immigration aide and I worked together in drafting the "Rural and Urban Health Care Act of 2001" (S.1259). Although the bill chiefly concerns nurses, the aide asked me to suggest an amendment which would most benefit communities in dire need of the services of a physician. I suggested that the number of J waivers which a state could sponsor annually be raised from 20 to 40, and that the Conrad Program be made permanent.

Now, almost one year later, Congress, under the leadership of Representative Jerry Moran (R-KS) in the House of Representatives and Senators Kent Conrad (D-ND) and Sam Brownback (R-KS) in the Senate, is rapidly acting on legislation which would expand and extend the Conrad 20 program.

This is often the only opportunity that a community, a clinic, or a hospital in a rural or underserved urban area has access to a physician," said Rep. Moran, co-chair of the House Rural Health Care Coalition. "The program is important. It is the way that healthcare is delivered in rural and urban settings across our country," he said.

On June 25, Congressman Moran's bill (H.R.4858) passed the House of Representatives on a lopsided 407-7 vote. It would raise the number of J waivers which can be sponsored by each state from 20 to 30, and would extend the life of the program until 2004.

The Conrad-Brownback measure (S.2674) is somewhat more ambitious. It would also raise the quota to 30 per year, but would make the program permanent.

It is expected that some combination of the Senate and the House bills will reach the President's desk for signature sometime later this month.

Is this good news? Absolutely! The impetus for expanding the Conrad program was the cancellation of the USDA's J waiver program for physicians. USDA sponsored approximately 3,000 physicians for J waivers over an eight-year period, an average of 375 per year (although by fiscal year 2001, the USDA sponsored less than 100 physicians nationwide).

In contrast, the expanded Conrad program will allow each of the approximately 46 participating states/territories (The following states have no Conrad Program: Idaho, Kansas, Montana, Oregon, South Dakota and Wyoming. However, both the District of Columbia and Guam participate in the Conrad Program.) to sponsor an additional 10 physicians per year for a total of 460 new J waivers annually.

There seem to be more plusses than minuses in the new proposals. The state programs are more flexible than the old USDA program. Physicians are not restricted to working in rural areas. Some states sponsor specialists (e.g., Delaware, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Washington, etc.) while USDA sponsored only primary care physicians. With the addition of ten extra numbers per state, it is hoped that more states will agree to sponsor specialists. Also, both for monitoring and selection purposes, it seems more logical to empower the states rather than have a program run out of Washington, D.C. The most significant minus is that the high population states will continue to run out of numbers well before the end of the fiscal year while numbers unused by the smaller states will go to waste.

All in all, the new legislation more than makes up for the loss of the USDA program.

Kudos to Senators Conrad and Brownback and to Congressman Moran!

II. Lawsuit Challenging INS's NIW Regulations

Our law firm is planning to challenge the INS "interim" regulations regarding National Interest Waivers (NIWs) for physicians. These regulations, which were issued on September 6, 2000, are contrary to the clear language of section five of the Nursing Relief for Disadvantaged Areas Act of 1999 which provides an opportunity for physicians practicing in medically underserved areas or for the Veterans Administration (VA) to obtain permanent residence based upon approved NIW petitions.

The following are some of the ways that the regulations diverge from the law:

A) While the law provides that it applies to "any alien physician", the regulations would restrict NIWs to primary care physicians only (with an exception for physicians employed by the VA).

B) While the law requires that most physicians work in medically underserved areas for "an aggregate of five years" in order to qualify, the regulations provide this five-year requirement must be satisfied within a six-year period, no exceptions permitted. In addition, the regulations provide that a physician's service in a medically-underserved area is not counted until the occurrence of a particular event. For example, suppose an H-1B physician (who was never in J status) worked in a qualifying area for five years before an NIW petition is submitted on his behalf. The regulations provide that the five-year requirement does not begin for the physician until after the INS approves an NIW petition on the physician's behalf. In this example, the physician would be forced to work ten years in the medically underserved area, twice the length of time mandated by law.

C) The law allows physicians who had NIWs submitted on their behalf prior to November 1, 1998 to work for three years, rather than five years, in a medically underserved area to qualify. The regulations add a requirement that the NIW petition, appeal or court challenge must be pending on the date of the law's enactment (November 12, 1999) in order for a physician to qualify under the three-year rule.

D) The law provides that a "department of public health in any State" may certify that a physician's work in a medically underserved area is in the public interest. The regulations change this to a "State department of public health" thereby excluding city, county and regional health departments from attesting that the physician's work is in the public interest.

E) The regulations create a complex two-tiered system whereby a physician must submit paperwork to the INS within 120 days after the first two years have elapsed, and again within 120 days after completing five years of work in a medically underserved area.

F) The regulations require that a new NIW petition be submitted on behalf of the physician whenever he relocates to another medically underserved area.

Rather than attack the regulations in a piecemeal fashion, we would like to invalidate all portions of the regulations which do not comply with the law. Therefore, we are considering the possibility of filing a class action lawsuit with the plaintiff class being composed of physicians who the law is designed to benefit, but whose eligibility for either an NIW or for adjustment of status is impaired by the regulations.

We will choose class members from our physician clients. If necessary, we will seek the assistance of our other immigration attorneys in locating additional plaintiffs. If you wish to be a class member, and are represented by an attorney, please do not contact us directly. Instead, have your attorney write a certified letter to the INS office where your case is pending, and request that INS approve your NIW or application for adjustment of status within a certain period of time (usually 60 days). The letter should cite both the law and the regulations, explain why the disputed section of the regulations does not comply with the law, and request that the INS approve the petition/application in accordance with the law.

The complete text of section five of the law is available at

http://shusterman.com/hr441-5.html

The interim INS regulations appear at

http://shusterman.com/imgniwreg.html

The comments of the American Immigration Attorneys Association (AILA) regarding the regulations may be accessed at

http://shusterman.com/ailamdniw.html

III. J Waivers Through Exceptional Hardship

We have recently received three successful decisions for M.D.'s who were seeking J waivers based upon exceptional hardship. Two of these applications were submitted to the Vermont Service Center and the other one to the Texas Service Center.

* PHYSICIAN A

Physician A is from South America and is married to a US citizen. The hardships in this case were identified as follows:

Very serious medical risk to their US citizen son The applicant's five-year-old son suffers from a congenital heart defect. The son requires constant treatment and specialized surgeries only available in the USA.

Our Argument: The son's life expectancy would be seriously diminished if he had to go and live in South America, as the required medical care is just not available.

Serious medical condition of US citizen wife's father Physician A's father-in-law suffers from diabetes, hypertension and heart disease. He is gravely ill and his prognosis is poor.

Our Argument: Given her father's condition, Physician A's wife is extremely reluctant to leave the USA. She believes it will be emotionally devastating to her family and will cause serious deterioration to her father's already poor health.

* PHYSICIAN B

Physician B is from Eastern Europe and is married to a naturalized citizen who was originally from South East Asia. Their hardships were identified as follows:

Serious psychological hardships on US citizen wife Physician B's wife suffers from trauma associated with displacement issues and has been periodically treated by a psychotherapist. She finds it difficult to integrate and needs her family support group. In addition, the Eastern European country in question is vastly intolerant of minorities.

Our Argument: The move would cause severe mental health problems to Dr. B's wife, which would be further exacerbated by racial intolerance.

Serious economic hardships on both Physician B and his wife The health care system in Physician B's country is in disarray. Physicians are poorly paid and there is currently a surplus of physicians resulting in high unemployment. In addition, Physician B's wife would not be able to practice her occupation as a Pharmacist.

Our Argument: Dr B and his wife would face unemployment and economic hardship. Dr. B's wife would be unable to work because she does not speak the language and needs to obtain licensure as a Pharmacist in the said country. This would take a minimum of two years.

Serious medical condition of US citizen wife's father Dr B's father-in-law was diagnosed with throat cancer in 2001. His prognosis is poor and life expectancy appears to be five years at best.

Our Argument: Physician B's wife feels she cannot leave her father as she is very close to him and she wants to make the most of the little time he has left.

* PHYSICIAN C

Physician C is from the Middle East. In this case, the hardships were identified as follows:

Very serious medical risks to his U.S. citizen children. His son suffers from a genetic disorder that makes him extremely allergic to a wide range of substances, most particularly fava beans and fava bean pollen, unavoidable in the Physician's home country. The son had a near death experience when he was exposed to a less toxic form of fava bean. The daughter also suffers from this genetic disorder.

Argument: Taking the children to the Physician's home country would be too much of a health risk and could possibly result in the death of either child if the allergic reaction was triggered.

Medical and psychological hardships to the permanent resident parents of the Physician's wife. The two legal permanent resident parents are old and infirm and rely heavily on their family for financial support and day to day care. They are both under the care of US physicians for various conditions, such as angina and diabetes.

Argument: The parents could not take care of themselves physically and financially if they were left alone in the USA. They would therefore have to return to the Physician's home country with the rest of the family.

We recommend that Physicians only pursue Exceptional Hardship Waivers in conjunction with Interested Government Agency (IGA) Waivers. IGA Waivers are relatively a "sure thing". Exceptional Hardship Waivers are much more risky. However, if successful, the Physician is not required to serve in a medically underserved area.

Compare the cases summarized above to a decision granting an Exceptional Hardship Waiver in February 2000

http://shusterman.com/pdf/ehwaiver.pdf (PDF File)

and another in February 2001

http://shusterman.com/pdf/212e-hake.pdf (PDF File)


About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017
http://www.shusterman.com/


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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