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Physicians: CIS Implements Schneider v. Chertoff Nationwide

by Carl Shusterman

On January 23, the CIS issued an interoffice memorandum which implements our June 7, 2006 victory for international physicians in the U.S. Court of Appeals for the Ninth Circuit. See

The memo also takes a huge step forward and allows medical specialists who practice in federally-designated underserved areas to become permanent residents through National Interest Waivers (NIWs).

For a summary of the Court's holding in Schneider v. Chertoff, see

The memo amends the Adjudicators' Field Manual to conform to the Court's holding. It also promises to revise the CIS interim regulations which were the subject of the Court's decision.

The memo is long (22 pages) and complex, and it raises issues which may generate additional litigation. For example, although the CIS may not revoke an approved I-140 simply because the physician fails to satisfy the five-year service requirement within a six-year period, the memo gives adjudicators considerable leeway is deciding when to revoke an approved petition:

"USCIS adjudicators should not revoke an approved I-140 solely because the required medical service has not been completed. However, adjudicators may revoke a petition if the adjudicator determines that the physician who is the beneficiary of the I-140 does not intend to complete the NIW requirements, that he or she never intended to complete the requirements, or for any other applicable bases for revocation of a petition as permitted under section 205 of the INA and enumerated in 8 CFR 205."
Suppose a J physician, after obtaining a waiver of the home residence requirement and completing three years of service in a HPSA decides to pursue a multi-year medical fellowship before returning to an underserved area to practice medicine. On what criteria can an adjudicator decide whether the physician intends to complete the NIW requirements? Or what if a female physician becomes pregnant midway through the five-year requirement, and decides to stay at home with her child for four or five years before returning to practice medicine in an underserved area? What are the criteria upon which an adjudicator determines the intentions of the physician?

Similarly, although Schneider v. Chertoff prohibits the CIS from requiring that the physician meet the five-year service requirement within six years, the memo attempts to accomplish the same objective by limiting the physician's ability to obtain an extension of his EAD: "NIW physicians seeking employment authorization based on a pending adjustment application may be served with an RFE, requesting evidence of meaningful progress toward completing the NIW employment obligation or of plans to use the EAD for the purpose of completing the medical service obligation." What constitutes "meaningful progress"? The CIS reserves the right to deny advance parole or even adjustment of status if it believes "that the physician is using the pending adjustment of status application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas."

CIS is to be commended for allowing specialists serving in Physician Scarcity Areas (PSAs) to obtain permanent residence through NIWs. The memo instructs that "to determine if a geographic area is a PSA, access the HHS' Centers for Medicare and Medicaid Services website at and search under "Specialty Care PSA Zip Codes." There are over 16,000 such zip codes.

After fighting us tooth and nail in Court for four years, it is gratifying to see that the CIS has not only decided to extend our victory in Schneider v. Chertoff nationwide, but to include specialists in the class of "all alien physicians" as we had contended from the beginning of our lawsuit.

We continue to believe that the agency lacks the authority to force physicians to complete their service requirement within a specified period of time in the absence of statutory language supporting this position. We also believe that the memo's insistence that the CIS will not accept public interest letters from local health department contradicts the clear language of the statute.

All in all, however, the January 23rd memo is a giant step forward for international physicians practicing medicine in the poorest areas of the U.S.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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