November 6, 2000

 

 

 

 

Mr. Richard A. Sloan                                                                INS FILE REF:  1048-00

Director, Policy Directives and Instructions Branch

Immigration and Naturalization Service

425 Eye Street, NW, Room 5307

Washington, DC  20536

 

 

Re:            COMMENTS TO THE INTERIM RULE IMPLEMENTING THE §203(b)(2)(B)(ii) PROVISIONS OF THE IMMIGRATION AND NATIONALITY ACT AS RELATING TO IMMIGRANT VISA PETITIONS FILED UNDER THE JOB OFFER WAIVER/NATIONAL INTEREST WAIVER PROVISIONS FOR ALIEN PHYSICIANS

 

 

Dear Mr. Sloan:

 

The following are the comments of the American Immigration Lawyers Association (AILA) to the Interim Rule issued by the Immigration and Naturalization Service in implementation of §5 of The Nursing Relief for Disadvantaged Areas Act of 1999 (Pub. L. 106-95, 113 Stat. 1312), which amend the waiver of job offer provisions of §203(b)(2)(B) of the INA for physicians working within designated medically underserved areas.

 

The subject Interim Rule was published in the Federal Register, 65 Fed. Reg. 53,889 (September 6, 2000) (INS reference number:  1048-00).  The provisions of this Interim Rule became effective on October 6, 2000, and the period for public comment was set at November 6, 2000.  This comment filed by AILA is submitted timely to the Service's announced deadline.

 

AILA is the bar association of more than 6,000 attorneys and law professors who practice and teach in the field of immigration and nationality law.  AILA members represent persons, entities, and businesses across the immigration spectrum, as well as teach and advocate on all fronts involving immigration issues.  Particularly given the dynamics of this country's healthcare system, AILA members have over the years represented the immigration interests of a broad range of medical facilities, hospitals, academic medical institutions, healthcare providers, and alien physicians in obtaining immigration benefits spanning both clinical practice and biomedical research efforts.

 

It is this dual background of a commitment to the overall practice and development of immigration law and policy and a more focused involvement in immigration matters within the healthcare community which form the background to the comments which AILA is now providing to you.  We appreciate this opportunity to work with the Service to ensure that the Congressional intent behind the enactment of the job offer waiver/national interest waiver provisions for physicians is fully, fairly, and accurately implemented by the Agency.

 

STATUTORY PROVISONS OF §203(b)(2)(B)(ii)

JOB OFFER WAIVER PROVISIONS FOR PHYSICIANS

 

The Congress roughly one year ago enacted the Nursing Relief for Disadvantaged Areas Act of 1999 (Pub.L. 106-95).   Section 5 contains affirmative instructions to the Attorney General to approve immigrant visa petitions filed under the job offer waiver/national interest waiver provisions for a select class of alien physicians.  Although these statutory provisions became effective upon enactment on November 12, 1999, the INS had held  all such petitions in abeyance, pending issuance of the implementing regulations.

 

The ongoing delay in Service implementation of the job offer/national interest waiver provisions has become of increasing concern to the healthcare community and, more recently, to the judiciary (See:  Darmadi v. Reno, No. 00CV3144 (D. Neb. June 7, 2000).  Therefore, the long-anticipated issuance of the Service's Interim Rule and its efforts at the implementation of this Congressional directive is a matter of importance.

 

In distilled form, the essential provisions of the §203(b)(2)(B)(ii) job offer waiver/national interest waiver provisions appear immediately below, and these provisions under fundamental norms of administrative law become the key imperatives guiding Agency action in implementation of the Statute.  See:  Chevron USA Inc. v. Natural Resources Defense Council, 467 US 837 (1984); Russello v. U.S., 464 US 16 (1983).  The clear statutory language enunciates the following, binding requirements:

 

1.      The Attorney General shall approve an immigrant visa petition filed under the job offer waiver/national interest waiver provisions and shall authorize the adjustment to permanent resident status for a select class of physicians;

2.      The affected class of physician beneficiaries is the following (to be read in the conjunctive):

 

·        Any alien physician;

·        Who agrees to work full time in a federally designated medically underserved area OR within a health care facility of the Department of Veterans Affairs; and

·        Whose services had previously been found by a Federal agency or a department of public health in any State to be in the public interest; and

·        Who establishes the fulfillment of a stipulated period of mandatory service at the time of approval of the adjustment application.

 

1.      Both the immigrant visa petition and the adjustment application can be filed prior to the actual fulfillment of the required period of mandatory service;

2.      The required, stipulated period of medical service, as appearing above, is in the main five years, although the Congress has specifically determined that a three year period of service shall apply to "a physician for whom an application for a waiver was filed … prior to November 1, 1998";

3.      The period of employment in fulfillment of the mandatory service requirement shall be calculated in the aggregate and shall not count any periods of employment in J-1 status, even if a J-1 physician were to have been working in a designated medically underserved area and/or a VA facility.

 

THE LEGISLATIVE HISTORY AND BACKGROUND

 

There is no published record that documents the legislative history of the §5 provisions of the Nursing Relief for Disadvantaged Areas Act of 1999.  Yet, it is clear that this statutory provision was passed by a Congress which was troubled by the ongoing, systemic maldistribution patterns in the physician workforce which have left broad portions of the country underserved.  The Congress recognized that alien physicians can provide one additional resource as part of a concerted policy to facilitate the relocation of physicians to designated medically underserved areas and/or within VA medical facilities.

 

Foreign physicians have for years been viewed as one possible source to augment the supply of physicians working in historically underserved practice sites – i.e., in designated medically underserved areas and in VA medical facilities.  In this regard, we would cite the background statement appearing in conjunction with the enactment of Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416) adding subsection (k) to Section 214 of the Act, which reads:

 

But while rural America, like the rest of our Nation, needs insurance reforms and relief from escalating heath care costs, access to health care providers is also an extremely high priority. … The State of North Dakota, along with many other States, has learned the necessity to turn every stone and explore every avenue in identifying providers who can care for our people. … We often have highly qualified foreign physicians who practice within our communities ….  140 Congressional Record S2171 (daily ed. June 9, 1994)

 

We point to a broad range of other Congressionally enacted initiatives to facilitate the relocation and retention of physicians to designated medically underserved areas and facilities, including:  the National Health Service Corporation, the Physicians Loan Repayment Plan, the Target Assistance Grant Program, the Community Rural Health Care Network, and the stepped up Medicare reimbursement schedules for designated rural and inner city providers.  The purpose of these measures is to enhance the relocation and retention of physicians working in designated medically underserved communities.

 

These are sustained, committed initiatives to provide adequate healthcare coverage to the roughly 64 million Americans living in communities which have been designated by the federal government as medically underserved, i.e., areas in which medical coverage falls short of minimally acceptable norms for adequate access to healthcare providers.  Furthermore, this shortage pattern is disproportionately experienced by minorities, the indigent, and by many of the most vulnerable segments of American society.  This basic situation of an ongoing, historically rooted maldistribution in the physician supply patterns has profound consequences to our entire national experience and forms the background for the determination by the Congress of the overall importance and the national interest implications of physician relocation to and retention in designated medically underserved communities and facilities within the VA system.

 

We provide this brief background to highlight, in addition to the clearly binding imperative of the statutory language, the underlying importance of adequate access to healthcare coverage which provides guidance on the implementation of these job offer waiver/national interest waiver provisions for physicians.

 

1.      The Limitation to Primary Care Physicians Is Clearly Contrary to the Plain Language of the Statute

 

The Interim Rule impermissibly limits eligibility under the national interest waiver provisions to primary care physicians.  Whereas the Statute specifically encompasses "any alien physician", the Service's Interim Rule asserts that national interest waiver coverage will be restricted solely to primary care physicians.  This restriction to "primary care" medicine is directly contrary to the clearly stated statutory language and as such, represents an abuse of the Agency's obligation to implement the clear, ordinary meaning of the language appearing in the Statute.

 

National interest waivers should be available to any foreign physician.  The statute clearly states that "the Attorney General shall grant a national interest waiver…on behalf of any alien physician".  (emphasis added) In its Supplementary Background Information Statement, however, the Service indicates its intent to limit application of the statute solely to physicians who practice in the areas of family, general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.   This is impermissible. It is a fundamental canon of statutory construction that unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.  Perrin v. U.S., 444 US 11 37 (1979).

 

An agency regulation should follow the plain meaning of the statute.  Chevron USA Inc. v. Natural Resources Defense Council 467 US 837 (1984).  When a statute does not define a term, the legislative purpose is expressed by the ordinary meaning of the words used.  Russello v. U.S. 464 US 16 (1983).  Here, use of the word "any" means that any alien physician who agrees to practice in a shortage area or at a VA facility is allowed to benefit from the national interest waiver provisions, without regard to medical specialty. Where a statute does not define a term, the legislative purpose is expressed by the ordinary meaning of the word used.

 

If Congress had intended to the restrict practice of medicine to primary care, it would have used the words "primary care."  The term "primary care" is an accepted term used to identify a specific set of medical practice disciplines referring to the initial contact provider "in a given episode of illness that leads to a decision regarding a course of action to resolve the health problem."  (Mosbey's Medical Dictionary, Fourth Edition, 1994, at 1274).

 

Certainly in other statutes, Congress has used the words "primary care" to refer to particular areas of medical practice.  See e.g., 42 USC § 1395w(b)(2)(J); 42 USC § 1395(a)(6).  Because it specifically chose to use the word "any" alien physician, any physician, whatever his or her area of practice should be allowed to serve those in underserved areas.    Had Congress instead meant to limit entitlement under the national interest waiver provisions solely to "primary care" physicians, the Congress would have used that term.

 

This law is intended to benefit those people with the greatest need for medical care.  In addition to contravening the clear language of the statute, the limitation of the statutory provision to the six enumerated medical practice areas frustrates Congressional intent of enhancing the access of patients living in designated medically underserved area to critically needed physician providers. 

 

Specifically, those with highest need for medical care in underserved areas oftentimes need physicians practicing in a specialized area.  In the Appalachian Region, for example, pulmonologists are sorely needed for the large numbers of former miners with black lung disease.  Minorities in inner city areas have a higher incidence of hypertension and heart disease and desperately need cardiologists.  Remote rural areas with elderly who have difficulty traveling have a need for nephrologists to treat kidney disease, geriatricians to provide nursing home coverage, and emergency room doctors to staff rural hospitals.  Hispanics in underserved areas in the Texas Valley have a higher incidence of diabetes and have special needs for endocrinologists.

 

Yet, given the Service's stated intention to impermissibly substitute the words "primary care physician" for the statutory phrase "any alien physician”, the above-cited situation as well as analogous, desirable practice situations become disqualified from coverage under the national interest waiver provisions.  This simply was not the intent of the Congress.  Rather, it is the result of the Service's unilateral action of substituting its policy in place of the decision of the Congress.

 

Even under its definition of "primary care," the Service's implementation policy not only contravenes the clear statutory language and frustrates Congressional intent, but it ignores elementary medical practice reality.  Specifically, by definition, as stated above, "primary care" refers to that class of physician providing to the patient the initial practice encounter with the aim of defining an overall course of medical treatment.

 

Particularly in rural America, physicians who practice in their medical specialties concurrently constitute the primary medical care resource for the local population for the following reasons.  First, medical specialists are required to complete periods of primary care medical training and to receive American Board Certification or American Board Eligibility in a primary care discipline prior to engaging in specialty care medicine.  (For example, an endocrinologist needs to be, at minimum, Board Eligible in Internal Medicine in order to practice endocrinology, and so on.)  As such, a medical specialist has the professional competence to provide primary care coverage.  Second, particularly within rural America, there is normally not a sufficient volume of patients to support solely a specialty practice;  rather, those trained in specialty medical care provide a rich and otherwise unavailable mix of specialty coverage and primary care treatment services to the local population.  Third, by the very nature of their service, in practice, medical specialists do provide a great deal of primary care to those they treat.  Endocrinologists tending to diabetics in underserved areas treat the resulting circulatory problems, infections, eye problems and heart disease that accompany diabetes.  Similarly, physicians practicing in the area of cardiology need to account for not only the medical problems of the heart, but to the related effects of treatment and causes of heart problems arising from other malfunctions and/or conditions of the body. 

 

Our point is that the Congress considered the full scope of medical practice reality when drafting the national interest waiver provisions for physicians.  It deliberately eschewed any limitation to primary care and instead unequivocally and directly permitted "any alien physician" to benefit under the national interest waiver provisions.

 

Again, we stress that Congress is well aware of the existence of the term "primary care," and had that been its intent, the Congress would certainly have instructed the Agency to limit its implementation of this provision to primary care physicians.  But through its clear, unequivocal language which is fully consistent with medical practice needs and realities, the statute extends to "any alien physician", and it therefore is unlawful for the Service to frustrate the purpose and intent of Congress by unilaterally limiting the statutory provision to "primary care" physicians only.

 

The designation of medically underserved areas should in no way limit or restrict the fields of medicine in which physicians practice.  The Service apparently contends that the system of shortage designations is based on population to physician ratios of physicians engaged in primary medical care practice.  However, this shortage designation system is intended to be a manageable, statistically-based method in order to determine whether a geographic area does or does not suffer from an inadequacy in healthcare coverage.  In other words, it is a data-gathering convenience rather than a limitation solely affecting primary care practitioners.

 

This data-gathering convenience is applied in many ways.  For example, a physician practicing in a designated shortage area may receive Medicare incentive payments of an additional 10 percent above the "normal" reimbursement schedule if they are practicing in a shortage area.  The incentive applies to any physician – including medical specialists; there is no requirement that the physician practice primary care medicine in order to qualify for stepped-up reimbursement coverage.  Therefore, while the shortage designation system is a system used to measure medical under-service, it is equally applicable for providing a benefit (i.e., the stepped-up reimbursement schedule) to specialty care physicians. 

 

This statistical tool should not limit the types of physicians who can qualify for national interest waiver coverage, especially when Congress clearly stated that the waiver provisions apply to "any alien physician".

 

States under the state J-1 waiver program have recommended specialty physicians for practice in HHS designated underserved areas.  Both federal government agencies and state departments of public health may recommend waivers of the two-year foreign J-1 return requirement for physicians who will provide medical care in underserved areas as designated by the Department of Health and Human Services.  Legislation sponsored by Senator Kent Conrad created a program, known as the Conrad State 20 Program, which authorizes each state to recommend waivers for up to 20 foreign physicians per year.  Pub. L. 103-416 § 220, 108 Stat. 4305.  The regulations at 22 CFR § 41.63 (c)(4), provide that a waiver based on a recommendation from a U.S. interested government agency (other than the Department of Veterans Affairs) is limited to primary care physicians.  In contrast, under the Conrad program, a state department of public health can recommend a §212(e) waiver to any physician who will practice in a designated shortage area.  22 CFR §41.63(e).  Thus, the provisions related to state waiver recommendations are not limited solely to primary care and allow states on a case-by-case basis to place specialists in underserved areas depending on the state's determination of need.  These individuals who have received state waivers would be shutout entirely from the benefits of this statute were the Service to restrict it, as proposed, to only primary care physicians.

 

We would, therefore, submit that this result would be an illogical, unintended consequence arising solely and directly from the Service's implementation standards which would override a clear, unambiguous Congressional pronouncement.

 

Again, the INS should not be considering at any level a restriction of entitlement to national interest waiver eligibility based on the area of practice.  The Congress has already addressed this issue and has stated clearly and ambiguously that "any alien physician" should qualify for national interest waiver benefits.  Under the plain meaning rule as reinforced by legitimate, clearly articulated policy concerns, the statute compels the Service to recognize that eligibility under the provisions of §203(b)(2)(B)(ii) includes physicians engaged in any medical area of practice.

 

We would conclude by again pointing out that the statutory language is mandatory – i.e., "the Attorney General shall grant a national interest waiver…on behalf of any alien physician…."  The mandatory nature of this provision contrasts with other provisions in the Act for foreign physicians in which the Attorney General may grant a given benefit.  (Example: §212(e) of the Act in which the Attorney General may waive the home residence obligation;  §214(l) of the Act in which the Attorney General shall not waive the requirement unless other factors have been met.)

 

We know of no justification for the Service's override of a clearly stated Congressional directive compelling the Attorney General to grant a national interest waiver to any alien physician willing to work for the stipulated period of service in a qualifying practice site (i.e., a designated medically underserved area and/or a VA medical facility).

 

2.      As a Point of Clarification, Even in its Current Form, the Interim Rule Places No Practice Restrictions on Physicians Practicing in the VA System

 

In light of various ambiguities in the Service's intention, we would like confirmation that the Service does not intend to place any practice restrictions on physicians practicing in the VA system.   As stated above, we strongly believe that any limitation to primary care is unlawful, but we further assume that this misguided limitation applies solely to physicians practicing in designated medically underserved areas.  Conversely, we simply desire to receive confirmation that even under the current text of the Interim Rule, VA physicians practicing in any medical practice discipline qualify for national interest waiver benefits.

 

Any limitation in the medical practice area does not affect physicians practicing in VA facilities.  Neither the statute nor policy considerations justifies a limitation based on area of medical practice.  We note that the interim regulation's limitation on practice area does NOT apply to physicians working within the VA system.  Congress has recognized that there is a pervasive shortage at all federal Veteran's Affairs hospitals nationwide.  VA facilities often have the greatest need for specialists, not primary care physicians, and service at a VA facility should not be restricted to primary care.  While this is almost a self evident point, the underlying reason for this confusion lies in the Service's unreasonable limitation to primary care, which is both contrary to the clear intent of the Statute and totally illogical and unjustifiable given the realities of medical practice in designated medically underserved areas and, in particular, within the VA practice context.

 

3.      There is No Basis for Requiring a Personal Attestation Statement from the Recommending Federal Agency on the Physician's Practice Capabilities

 

The statute requires that a physician beneficiary of a job offer waiver/national interest waiver receive a public interest statement from a Federal agency or a department of public health in any State.  For reasons not quite clear and certainly unsupported by the statutory language, the Interim Rule goes on to state that for national interest waiver purposes, a Federal agency needs to issue an endorsement statement on the physician's practice capabilities and, furthermore, that the Agency needs to establish its competence to issue such a practice standard evaluation.  8 CFR §204.12(c)(3)(i).

 

There is no such requirement that a department of public health in the State issue a similar endorsement of the physician's medical practice competence, although the Rule does require the issuance of the public interest statement, as provided for in the statute.

 

We would submit that there is simply no basis, need, justification, or underlying logic for this requirement that a Federal agency issue a statement regarding the alien physician's personal qualifications to practice medicine.

 

The Service-imposed requirement that the federal agency must have experience in matters involving medical affairs and must have knowledge of the alien's qualifications contravenes the statute.  The relevant issue to the entire statutory initiative is to best serve the public interest by facilitating the relocation and retention of additional physicians to medically underserved areas.  There is simply no basis for requiring a Federal agency to establish its personal knowledge of the alien physician's qualifications or to attest to the physician's medical practice capabilities.  Had this indeed been required, the Congress in its authorship of the statute would have so stated.

 

In this regard, we would cite the role which various agencies play in supporting the relocation of physicians to areas within their area of responsibility.  It is both heavily documented and generally acknowledged that there is a direct correlation between the absence of adequate access to physicians and adverse healthcare outcomes, retardation of community economic growth, insufficient coverage for minorities and the indigent, and community instability.  The United States Department of Agriculture knows that rural Americans are leaving rural areas at a rapid pace in part because they cannot obtain adequate healthcare coverage.  The Department of the Interior is well aware that the Native American population suffers from a high incidence of alcoholism and needs doctors to treat its population.  The Department of Housing and Urban Affairs has an interest in achieving acceptable levels of physician coverage in inner-city neighborhoods. 

 

Yet, these and various other agencies would not under the Interim Rule be able to support national interest waiver relocations of physicians despite the fact that from a public policy standpoint, these are the precise agencies entrusted with serving the public interest in their respective areas of endeavor, per 8 CFR §204.12(c)(3)(i).  Further:  Supplementary Background Information at 53890.

 

We believe that this requirement of a substantive determination of medical practice competence by a federal agency is violative of certain fundamental norms of federalism.  It represents an overreaching by the federal government into areas normally and historically reserved to the states.  Had the Congress sought to vest onto the Federal agencies the need to make substantive judgments on a physician's caliber of practice, the Congress would have added this requirement to the statute.  Further, the imposition of this requirement has led to notices by at least two agencies that they will not issue letters to petitioners.

 

In short, there is a much more established, efficient, universally acknowledged, and appropriate resource to determine the physician's ability to serve the residents in the state – i.e., the Boards of Medical Licensure.  On a variety of levels – including the clear statutory language – we think it is unthinkable and directly contrary to accepted federal deference to the states' licensing authority to require federal agencies to make attestations on a physician's substantive abilities.

 

We think that the Service's current requirement in this regard violates not only the clearly stated statutory language, but flies in the face of traditional, historically rooted areas of legitimate state interest.  The current requirement represents an unacceptable extension of federal intrusion into a domain of the states, and adds no value given that the states and indeed, the medical profession itself, have developed through their medical licensure provisions and their medical board procedures adequate safeguards related to physician quality.

 

The overall interest in acceptable, professional physician practice standards should be and traditionally have been a matter falling within the health and welfare responsibilities of the individual States.  We do not herein submit that there should be no consideration given to ensuring that an alien physician meets acceptable practice norms.  Rather, our sole assertion is that a Federal agency should not be required, as stated in the Interim Rule, to make this substantive practice determination.  These issues are governed by the state medical licensing commissions.  Furthermore, the various medical practice areas through the American Boards of Medical Specialties (ABMS) system have developed widely accepted guidelines to ensure acceptable standards of physician practice.

 

Conversely, neither the licensing authority of the states nor the American Board system has the right or the expertise to make the public interest determination as required by the statute.  Therefore, the Congress specifically vested this responsibility onto the Federal agencies or the department of health in a State.  There is, in short, an inherent complementary synergy between the public interest determination of the Federal agency or the department of health and the intrinsic, substantive practice caliber emanating from the states' licensing authorities.  This distinction is recognized and reinforced by the statute;  it is impermissibly blurred if not outright obliterated by the Interim Rule.

 

As stated in the statute, the Federal agency should be required to issue a public interest statement;  conversely, it has no standing or need to make any substantive determination of the physician's practice abilities.

 

There is a logical disconnect in the Interim Rule between the Federal agency requirement of issuing a substantive determination of the alien physician's practice capability and the absence of any such requirement accruing to the department of health in a State.  In short, we would think that if the public's essential health and welfare were to be served by having the agency make a substantive determination of the physician's practice ability, then this would be an equally compelling imperative placed upon the State.  After all, the statutory language from which this Federal agency obligation presumably arises applies equally to the actions of the department of public health in any State.  Yet, the Service places this substantive practice determination solely on the Federal agency, and as a result the agencies are refusing to support petitions, thereby completely undermining Congressional intent to recruit physicians for underserved areas.

 

4.      The Interim Rule Directly Contravenes the Clear Statutory Language by Requiring the Public Interest Attestation Statement to Come from the State Department of Health as Opposed to a "department of public health in any State"

 

We fully recognize that the statute at §203(b)(2)(B)(ii)(I)(bb) requires issuance by a "department of public health in any State" of a statement on the public interest from the physician's work.  Yet, the Service has misconstrued this clearly stated statutory language to require the issuance of the public interest statement solely by the State Department of Public Health.  Had the Congress intended to limit such statements solely to this centralized state agency, it would have so stated, as has been the case in other instances in which the Congressional intent related to this centralized state agency.

 

The statute clearly states that a "department of public health in a state" be allowed to attest to the public interest.  This includes local departments of health.  The Interim Rule requires that only the State Department of Public Health (or its equivalent) should be authorized to issue this public interest statement.  This is simply not what is stated in the statute.  Rather, the statute uses the words "department of public health in any state" (emphasis added) which, by definition, includes local departments of public health. 

 

Congress understands this distinction between the States' Departments of Public Health and local such departments and had Congress so decided, it would have specifically indicated that the public interest statement needs to come from the Department of Public Health.  Therefore, in both 8 USC § 214 (l) and 8 USC § 212 (e), Congress specifically designates the centralized state department of public health.    But here, there is an entirely different term of art utilized precisely in order to recognize the standing of a local department of health to issue the public interest statement.  By using the words "department of public health in any state" and not the words "department of public health of any state" Congress clearly intended this statute to include local health departments. 

 

Given that Congress has utilized in one part of the statute a specific phrase, the Congress would have used that exact same phrase had it meant to limit the ability to issue pubic interest statements solely to the centralized state departments of health.  But that is simply not what occurred here.  It is an absolute basic, fundamental rule of statutory construction that the implementing agency is obligated to give full and fair weight to the clear words utilized by the Congress, and this is simply not what is happening here.  It is presumed Congress acts intentionally and purposely, and particularly given its use of a specific phrase in another statutory section highlights unequivocally that a local departments of health – i.e., a "department of health in a state" – is eligible for public interest statement purposes.

 

In the Interim Rule, INS states it is concerned that the process is too decentralized and suggests that a local health department can still participate by urging the State Department of Public Health to issue an attestation of public interest.  This is simply not the determination made by the Congress in enacting the statute. In fact, we would submit that the interests of administrative efficiency and substantive medical coverage would be best served by recognizing the standing of a department of public health in any State (i.e., the term of art used in the statute) to issue the public need statement. First, a limitation to the State Department of Health creates an additional burden on the state agency which is wholly unintended by Congress.  Second, State Departments of Health can (and in the waiver context, have frequently) decided not to participate in the process, oftentimes owing to financial constraints since there is no money set aside to participate in this public interest determination process. In this situation, no urging on the part of any local health department could ever convince such a State Department of Health to participate.   Third, in most instances, the local authorities have the greatest sensitivity to and knowledge of the healthcare coverage situation at the local level so as to make them the best informed, most responsible entity in a state to issue the public need statement.

 

But at the core, we would submit that the opinion of neither the Service nor AILA holds merit since the Congress in its specific statutory language has clearly established that it is not the department of health of a state but rather the local "department of health in any State" which has the right to issue a public need statement.  Given this clear statutory language, the Service is bound to implement this provision in clear effectuation of Congressional directive.

 

In short, we believe that the Congress through its clear statutory language has determined that it is the local health department –i.e., "a department of health in any State" - which possesses the best understanding of the needs of their community.  The Service, as a regulatory agency, should not eliminate the voice of local public health departments which Congress in its use of the words "department of public health in any State" specifically intended to include when it chose not to use the language in previous sections of the statute referring to the "department of health of the state."

 

5.      The requirement that the attestation be filed within six months of the national interest petition is unduly restrictive.

 

The statute states that for national interest waiver purposes, the Federal agency or the "department of public health in any State" needs to have "previously determined that the alien physician's work…was in the public interest".  Simply and accurately put, the Congress is requiring that a government agency with standing needs to have issued a previous determination that the alien physician's employment at the given practice site is in the public interest.  However, the Interim Rule goes well beyond the stipulated provision by requiring a six-month window during which this public interest statement needs to have been issued.  There is simply no justification for this override of the statute's requirement that such a statement needs to have been previously issued.

 

The requirement that the public interest statement be dated within the previous six months of the filing of the immigrant visa petition is neither supported by the statute nor consistent with the administration of these provisions.  Had Congress wanted to impose a time limit, it could have done so.  See 8 USC § 214 (l)(1)(C)(ii) in which the alien physician must agree to begin work within 90 days of receiving a waiver.

 

However, the Congress did not include a time limit for filing the attestation and no time limit should be imposed.  First, it is impossible in those cases filed before the regulations were issued for the public interest attestation statement to be timely filed.  Second, the six-month time limit would mean that physicians receiving waivers of the foreign residence requirement of section 212(e) could not use statements of public interest from their J-1 waiver application.  In practice, in the waiver context, after an agency issues a statement of public interest, the U.S. Department of State must concur and the INS must finally approve the waiver.  Currently, the waiver review process in the Department of State consistently takes more than six months.  Next, the Immigration Service must formally grant the waiver and the physician must then obtain employment authorization.  Frequently, physicians need to wait several months in order to obtain H-1B approval owing to either Service adjudication backlogs or depletion of the H-1B visa numbers.  Therefore, by the time the physician is practicing in the area and can decide whether to commit to the national interest waiver process, invariably more than six months has lapsed.  The interim rule results in an unnecessary duplication of effort without any merit to require a physician to again seek an updated public need statement when he/she has previously received such a statement as part of the J-1 waiver process.   Further, the federal agencies involved in many 212(e) waivers have announced that they do not have the resources to issue new determinations.  The Service should instead accept recommendations of an agency as long as the area is still underserved.

 

In a somewhat analogous situation, we would note that both labor certifications and immigrant visa petitions remain valid indefinitely as long as the alien beneficiary intends to undertake the same position with the same employer.  It would seem equally plausible to adopt a similar for public interest attestation purposes.  We certainly believe that the alien physician would need to present updated confirmation that the practice site remains qualified for national interest waiver purposes (i.e., that it is a designated medically underserved area and/or a VA facility), but there simply is no need to provide an updated public interest statement.

 

In conclusion, the this issue should be governed solely by the statutory language which states that a qualifying agency needs to have previously issued an attestation on the public interest from the physician's services.  In addition, there are a good deal of additional reasons which make this requirement contrary not only to statutory intent, but unjustifiably burdensome, counterproductive, and unnecessary.

 

6.      The Service has Enacted a Policy in the Interim Rule which Directly Contravenes the Statutory Language for Those "Grandfathered" Cases which Qualify for the Three-Year Service Obligation

 

As a stipulated requirement for coverage under the national interest waiver provisions of §203(b)(2)(B)(ii), a physician must fulfill a stipulated period of practice in a designated medically underserved area or within a VA medical facility.  In most instances, this required period of medical practice has been set at five years;  in certain "grandfathered" cases, this required period of service has been set at three years.

 

"[A] physician for whom an application for a waiver was filed under section 203(b)(2)(B) prior to November 1, 1998…"  qualifies for this three-year service obligation.  Whereas the statutory language seems direct and clear, the Service in its Interim Rule overrides Congressional directive by adding various layers of conditions and requirements to this seemingly direct, clear directive.

 

We believe that the Service has an obligation to approve national interest waiver requests to a physician "for whom an application for a waiver was filed…prior to November 1, 1998." This is the clear, unambiguous language in the statute, which must be fully carried forward in the implementing regulations.

 

Contrary to what appears in the Interim Rule, those cases filed before November 1, 1998 and denied on or prior to November 12, 1999, should be allowed to serve three years.  Quite simply, if the case was filed before November 1, 1998, it should qualify for the three-year service commitment.  The plain language of the statute allows those cases filed prior to November 1, 1998, to serve three years in the area of need.  In the Interim Rule, however, the Service states that those cases filed before November 1, 1998, which received final administrative denials before November 12, 1999, must file a new immigrant petition, thus becoming subject to a five-year service requirement instead of the three-year service requirement. 

 

As support for this arbitrary position, the Service cites Matter of Atembe, 19 I&N Dec. 427 (1986) as holding that the law must provide for the benefit sought at the time that the action is filed. Specifically,  Matter of Atembe dealt with a lawful permanent resident filing a relative petition for his illegitimate, unmarried son.  After the father filed the petition for his illegitimate son, the law was changed to allow for the first time that illegitimate children be considered children.  At the time the petition was initially filed in Atembe, there was no such provision in the law for illegitimate children.  The Board of Immigration Appeal's holding in Atembe, was that to be eligible for preference status under § 203, the beneficiary must be fully qualified for such classification at the time the visa petition was filed in order to avoid giving the beneficiary a priority date to which he or she was not entitled at the time of filing. 

 

However, Matter of Atembe is absolutely inapposite here for two reasons.  First, whereas the law in Atembe did not provide for the benefit being sought, there is no such bar to the national interest wavier provisions of §203(b)(2).  In fact, national interest waiver cases for physicians had consistently been approved under these provisions.  Second, even if the law had not so provided, the Congress through a clear, unambiguous statement has specifically stated that "physicians for whom an application for a waiver was filed…prior to November 1, 1998" shall incur a three-year service requirement in order to qualify for national interest waiver benefits.

 

The national interest waiver provisions of the Act do indeed extend coverage to physicians working in designated medically underserved area.  Unlike the Atembe situation, here there is not, and never has been a bar to the benefit being sought.  In fact, for years, the Service had consistently approved immigrant visa petitions under the national interest waiver classification for physicians working in designated medically underserved areas.  See:  Letter of Louis D. Crocetti, Jr., Associate Commissioner Examinations, dated November 22, 1995, to attorney Palma Yanni, which states in relevant part:  .  "[T]he service centers should continue their past practice of favorably adjudicating most national interest waivers for physicians who will be practicing in medically underserved areas of the United States."  Also, in several unpublished cases, the Administrative Appeals Unit explicitly held that the provision of medical services in an underserved area was in the national interest.  Matter of (no name provided), A29 434771 (NSC), Sept. 2 1992; Matter of (no name provided) A29 439, 466 (NSC), Sept 8, 1993. 

 

The Congress has forthrightly and unequivocally stated that there should be a sub-class of "grandfathered" physicians subject to a three-year service obligation.  Put another way, we believe that filed before November 1, 1998 means filed before November 1, 1998. 

 

Had Congress intended that a case filed before November 1, 1998 be pending on November 12, 1999, it would have used the words, "pending before November 12, 1999."  But it did not.  Rather, it set forth a clear, unambiguous, and unqualified statement that the grandfathering provisions arise simply if the national interest waiver application was filed before November 1, 1998.

 

Therefore, the Service needs to revise its recognition of "grandfathered" physicians to include those cases in which a physician filed an immigrant visa petition under the §203(b)(2)(B) provisions prior to November 1, 1998.  This is precisely what is stated unambiguously in the statute.  In those instances in which a waiver application was indeed filed before November 1, 1998, the alien physician should have the right to qualify for national interest waiver benefits upon fulfillment of a three year period of employment working in a designated medically underserved area.  The Service will need to establish appropriate procedures for the filing and approval of Motions to Reopen or Reconsider, and the approval of such petitions under the provisions of §203(b)(2)(B)(ii)(IV) of the Act.

 

7.      There Is Simply No Need to Establish §212(e) Waiver Approval when Filing the Immigrant Visa Petition

 

The Interim Rule requires that a current or former J-1 physician provide evidence of a Service-issued waiver under the provisions of 212(e) in order to receive approval of an immigrant visa petition under the national interest waiver provisions.  See  8 CFR §204.1(c)(5).  This section should be deleted in that the 212(e) waiver is irrelevant to the approvability of the immigrant visa petition (although it is obviously a requirement for adjustment purposes or for issuance of the immigrant visa).

 

We would like to call certain considerations to your attention.

 

First and foremost, the approval of the 212(e) waiver is irrelevant to the approval of the immigrant visa petition.  Current Service practice calls for approval of the petition, regardless of the issuance or non-issuance of the waiver.  Obviously, the full benefits of the petition – i.e., the attainment of permanent residence – can only be exercised upon approval of the waiver.  But this is a far different situation than the underlying purpose which is to create an in futuro ability to achieve permanent resident status.

 

Second, this requirement contradicts current Service policy which allows for the approval of an adjustment of status application upon presentation of the waiver recommendation issued by the U.S. Department of State, rather than the I-612 approval notice from the Service.  Memo of Paul Virtue, INS Executive Associate Commissioner, dated February 17, 1998. Therefore, under current service policy, the final I-612 notice is not required to file for adjustment of status; rather, the waiver recommendation from the Department of State will suffice.

 

Third, if the Service does indeed adhere to its requirement that the public need statement needs to be issued within 6-months of the filing of the immigrant visa petition, many J-1 physicians and their employers will quite certainly seek to file their immigrant visa petitions contemporaneously with the issuance of the J-1 waiver public need statement, which invariably will occur prior to the adjudication of the 212(e) waiver.

 

It is our strong suggestion that the provision, cited above, requiring production of the 212(e) waiver as a prerequisite to an approval of the immigrant visa petition should be deleted entirely.

 

8.      The Interim Rule Unfairly and Counterproductively Requires a Contract Covering the "Required Period of Clinical Medical Practice"

 

We agree that the burden is on the applicant to establish his/her intention of serving in the designated medically underserved area for the required period of service.  However, we strongly believe that it is infeasible to stipulate that this requirement can only be met by the provision of a contract covering "the required period of clinical medical practice".  See:  §(c)(1)(i).

 

Specifically, the Service is requiring the physician to provide a contract covering the employment for a full five year period of time.  There are two major flaws to this requirement.  First, very few – if any – medical facilities or employers will issue a contract for this period of time; and second, the contract in and of itself should not be dispositive regarding the intention of the parties to fulfill the clinical service requirement.  In fact, we think that this provision by itself would threaten to fully undermine the national interest waiver provisions by unfairly and in complete derogation of accepted norms of medical employment practice require employment contracts to be written for five year terms.

 

Furthermore, the Service's interest in fulfillment of the five year service term can and should be adequately protected through other means of evidence, such as the attestation of the parties to maintaining a good faith intention and capability to fulfill the full mandatory term of service.

 

9.      The Current Stipulation that the Physician's Service Requirement Needs to be Completed within a 4/6 Year Period of Time is Unfair and Infeasible

 

At §204.12(b)(1) & (2) of the Interim Rule, the Service imposes a limitation on the time within which the physician must complete either the three-year or five-year limitation.  Under Pub.L. 106-95, and under the provisions of the Interim Rule, a qualifying physician who filed the immigrant visa petition (or on whose behalf such a petition has been filed) prior to November 1, 1998, needs to fulfill a three-year period of service working in a designated medically underserved area and/or within the VA system in order to gain eligibility for permanent residence under the national interest waiver provisions;  in the case of physicians whose petitions were filed after November 1, 1998, there is a five-year service obligation.  The Interim Rule then goes on to stipulate that this required period of mandatory service needs to be completed for this former class of physicians (i.e., those with a three-year service requirement) within a four-year period of time; a physician with a five-year obligation must complete the service period within a six-year time limit.  The limitation period generally commences when the physician receives employment authorization to work in the designated medically underserved area or a VA facility.  However, for those physicians already present and working in the United States (other than in J-1 status), the commencement point begins upon the approval date of the approval of the I-140 immigrant visa petition.

 

We are highly troubled by the stipulation by the INS of this four/six year overall period for fulfillment of the service obligation, particularly given the fact that there are no allowances made for extenuating or unforeseen circumstances which present meritorious reasons to extend the period of time for completion of this service obligation.

 

We would initially state that the Service does not have the legal authority to impose a time limitation.  The law is well established that a regulatory agency may not, in its rulemaking capacity, alter, modify or limit the operation of a statutory provision enacted by Congress.  In short, an agency rule cannot "trump" a Congressional act. A regulation which is inconsistent with the statute under which it is promulgated is invalid.  State of Illinois Department of Public Aid v. U.S. Department of Health and Human Services, 772 F.2d 329 (7th Cir. 1985).  An administrative rule exceeds its statutory mandate if it is inconsistent with the statutory mandate or frustrates the policy that Congress sought to implement.  U.S. v. O'Hagan, 92 F.3d 612 (8th Cir. 1996).  Federal regulations cannot "trump" or repeal Acts of Congress.  Complaint of Nautilas Motor Tanker Co., Ltd., 85 F.3d 105 (3rd Cir. 1996). Courts of Appeals may set aside agency rules that conflict with plain meaning of statute, are unreasonable interpretations of ambiguous statutes, or are the result of arbitrary or capricious action by a regulatory agency.  People of the State of California v. F.C.C., 124 F.3d 934 (8th Cir.1997); A Federal regulation in conflict with a federal statute is invalid as a matter of law.  In re: Watson, 161 F.3d 593 (9th Cir. 1998).

 

In this light, we would submit that the four/six year limitation contained in the interim rule, does unlawfully limit, and is counter to the provisions of the §5 provisions of Pub. L. 106-95 for the following reasons.

 

First, the plain language of Pub. L. 106-95 requires the Attorney General to grant lawful permanent residence to a physician who completes three or five years of service in a qualifying practice site (i.e., within a designated shortage area or VA facility).  Thus, a physician who completes the service period is statutorily eligible for lawful permanent residence under the national interest waiver provisions regardless of whether the service occurs during a five-year period, six-year period, or seven-year period.  The Service cannot, by rule, take away what the Statute has provided.

 

Second, if Congress had intended to create a time limitation, it would have so stated in the Statute.  In various other instances, Congress has imposed time limitations.  For instance, in INA §214(l) of the Act, Congress required that a foreign medical graduate who receives a waiver of the §212(e) foreign residence requirement must agree to commence service to the shortage area within 90 days of being granted a waiver.  The fact that Congress did not create a time limitation in P.L. 106-95, suggests that any such limitation is contrary to Congressional intent and should not be imposed.

 

However, even if there is a stipulated period for fulfillment of the service requirement, the Interim Rule is unfair and unrealistic – if not outright mean-spirited – by not making provision for extenuating circumstances and by setting an unduly constrictive period.

 

We strongly believe that the time limitation is harsh and punitive in operation because it makes no provision for extenuating circumstances which might make it impossible or unduly burdensome for a physician to complete the service period within the stipulated period of time. There are many potential circumstances, such as pregnancy, illness, disability, family emergencies (both here and abroad), which might make it impossible  for a physician to complete the service requirement prior to the expiration of the four/six year time limitation imposed by the Interim Rule.

 

In particular, we would point out the unintended consequence of not recognizing the existence of extenuating or unforeseen circumstances in justifying a longer period of time to fulfill the service requirement.  In the Supplementary Background Information, the Service admits that a physician may experience pregnancy or disability during the course of his/her work assignment, but then dismisses the implications or disruptions arising from these conditions by providing one single year to complete the required three/five year period of service.  We would simply point out that this inflexible, procrustean policy seems to run contrary to Congressional initiatives to recognize certain rights and personal leave flexibilities in the employment world.  For example, we think that the four/six year rule as currently stated conflicts with provisions of the Family Leave Act and the Americans With Disabilities Act, insofar as it interferes with the right to take time off from work due to pregnancy and disability, respectively.  Furthermore, both of these provisions have specifically been enacted in efforts to stabilize and strengthen the American family unit, and in many cases, a qualifying physician under the §5 provisions of the Nursing Relief Act does indeed have a U.S. citizen spouse and/or children.

 

Furthermore, particularly given the volatility in the healthcare marketplace, many beneficiary physicians become the victims of clinic downsizing or even collapse.  Therefore, despite their best efforts to comply with the required service requirement, many physicians find themselves temporarily unemployed.  We would agree that the clear language of the statute requires a physician to find other employment in a designated medically underserved area and/or a VA facility in order to fulfill the aggregate service obligation.  However, particularly given the essential nature of the profession of a physician (including the extensive period of time required just for the credentials background check and the licensure clearance process) it is not unreasonable – or even undesirable – to expect that such a new job search would take more than one year to complete.

 

Indeed, in the Supplementary Background Information, the Service explicitly states that:

 

The Service realizes that situations will arise that cause some physicians to have interruptions in the respective medical practice, such as job loss through no fault of their own and the ensuing search for new employment in an underserved area, pregnancy, or providing care to ill parents, children, or other family members.  (p 53890)

 

Yet, even in these extreme and unfortunate circumstances, INS states that it will deny the application for adjustment of status and revoke approval of the visa petition if the alien physician fails to submit within the stipulated time the required documentary evidence establishing the physician's compliance with the service requirement.

 

Given the lack of statutory authority for the rule's six-year limitation, what reason does the INS give to justify such an inflexible and extreme requirement?  The Service's rationale is simply that "the Service does not consider it appropriate to allow physicians to remain in the United States indefinitely without satisfying the service requirement". (Emphasis added)

 

While it may be unreasonable to advocate that alien physicians should have an unlimited period of time to fulfill their service obligation, it is equally untenable to unduly limit the overall time period during which this requirement needs to be fulfilled or to deny any consideration to extenuating or unforeseen circumstances, no matter how compelling.  Indeed, given the unforeseen circumstances listed by the INS above, it seems clear that granting a physician a reasonable period of time to fulfill his or her service requirement furthers the interests of the law (i.e., the provision of enhanced medical services to physicians working in qualifying medical practice sites) and would not be tantamount to permitting the alien physician to remain in the U.S. indefinitely.

 

At a minimum, the INS should consider granting waivers to physicians who are unable to satisfy the Interim Rule's time requirement due to circumstances beyond their control.

 

Therefore, if the Service does indeed set stipulated periods during which the service obligation needs to be fulfilled, we think that any such policy needs to incorporate the following two (2) provisions:

 

·        First, the stipulated period of time to fulfill the service requirement should be raised to a more realistic time so as to account for current norms under which employment may legitimately become interrupted (e.g., complicated pregnancies, need for a new professional job search, disability, etc.).

 

·        Second, we believe that the Service should recognize the existence of extenuating and/or unforeseen circumstances as justifying extensions beyond the stipulated period to fulfill.  In those cases, we would agree that the burden should shift to the alien physician to establish the existence of extenuating and/or unforeseen circumstances and the exercise of good faith to meet the stipulated periods of fulfillment of the service obligation.   However, we believe that elementary fair play strongly counsels that the Service reserve a level of flexibility to grant benefits under the statute to physicians who for good cause and through no fault of their own simply cannot meet the stipulated period of fulfillment in a timely manner.

 

10.      The Interim Rule Does Not Appropriately or Accurately Measure the Periods of Time Spent in Qualifying Employment for National Interest Waiver Purposes

 

The statute specifically and directly states that an alien physician shall be granted permanent resident status once "the alien has worked full time as a physician for an aggregate of five years 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."

 

The Interim Rule, though, creates a three-leveled system for computing the periods of time which will be credited toward fulfillment of this five-year service requirement.  Not only is this tripartite system confusing and unwieldy, but it runs counter to the express provisions of the statutory language.

 

Under the provisions of the proposed 8 CFR §204.12(b) as amplified in the Supplementary Background Information, the Service would compute time spent in fulfillment of the five-year obligation as follows:

 

1.                  For J-1 physicians who have received 212(e) waivers and are working in H-1B status:  the commencement period for determining the commencement of the five-year service requirement starts when the physician relocates to the qualifying practice site (i.e., a designated medically underserved area and/or a VA facility);

2.                  For physicians who had not previously possessed INS-issued employment authorization (paradigm:  a Canadian physician who enters the United States to take up a job opportunity):  the date for calculating the commencement of the five-year service requirement starts when the physician relocates to the qualifying practice site, as above;

3.                  For physicians who had previously held INS-issued employment authorization (paradigm:  H-1B trainees and aliens in O-1 status):  the commencement date for fulfillment of the five year service requirement begins on the date on which the I-140 immigrant visa petition is approved.

 

We cannot understand why the Interim Rule is creating this special and adverse system for alien physicians who had previously done their residency training under H-1B status or who had previously received employment authorization on other bases.

 

We think that this stated situation is indefensible under the statute for the following reasons.

 

First and foremost, the statute clearly states that the benefit of permanent residence will accrue once a physician fulfills a five-year period of service in a qualifying practice site – i.e., in a designated medically underserved area and/or within a VA facility.  The plain words of the statute state a valid trade-off of five years commitment to a qualifying practice site in return for the right to gain permanent resident status.  The creation of a separate sub-class for physicians who have previously received employment authorization runs directly contrary to this provision.

 

Second, the Service has historically taken a long time to review and adjudicate immigrant visa petitions under the national interest waiver provisions.  While the pace of Service adjudication time is a subject of ongoing concern best left for consideration in other forums, we would simply note that the lengthy delays in the Service's adjudication times realistically would impose a significantly more lengthy period of employment obligation on a physician than the five years clearly stated in the statutory language.

 

Third, there is no rational underlying policy which would justify this fragmentation of physicians into three separate sub-groups.  The important point as articulated by the Congress is to facilitate the relocation of physicians willing to commit to medical service for a five-year period of time in qualifying practice sites.

 

Simply put, the Interim Rule should recognize that all periods of medical service spent by an alien physician in either a designated medically underserved area and/or a VA facility should count toward fulfillment of the five-year service obligation.  This, after all, is what is directly and clearly stated in the statute and attempts to sub-divide physicians based on previous immigration status simply does not make sense.

 

11.       The Interim Rule Inaccurately Requires the Maintenance of Lawful Status upon the Filing of the Adjustment Application

 

The Supplementary Background Information at page 53891 contains a legally inaccurate statement that the "alien physician, under §245(c)(7) of the Act, must have been in lawful nonimmigrant status when the alien physician files the adjustment application…"

 

We believe this is an overly broad and therefore inaccurate statement of the law.  In this regard, we would cite the existence of §245(k), which specifically sets a limited period during which unauthorized presence will not result in a deprivation of the benefit of adjustment of status.