VA Physician – What To Do When USCIS Fails to Follow the Law
This happened to one of our clients who is a VA physician. Ever wonder what you would do if the USCIS suddenly revoked the benefits that they had given you in the past and now wants to deport you?
A couple months ago, we were contacted by a foreign-born VA physician who was employed in a medically-underserved area on the East Coast.
He had completed both his medical residency and fellowship on a J visa. Then, the VA sponsored him for a J waiver and an H-1B visa. Both were approved.
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After working for a couple of years in H-1B status, he self-petitioned for a National Interest Waiver (NIW). As soon as he received an approval from the USCIS, he applied for adjustment of status.
Since an NIW for a VA physician requires that he work for the Veterans Administration or in a medically-underserved area for 5 years, the USCIS must wait until the physician completes the 5-year period before adjudicating his application for adjustment of status (form I-485).
However, in this case, the USCIS immediately and erroneously approved his I-485.
Upon receiving the approval, the VA physician wrote to the USCIS Ombudsman’s Office to inform them of their agency’s mistake.
They scheduled an appointment for him at his local USCIS office. There, the officer had him sign an I-407 Abandonment of Lawful Permanent Residence form and took his green card away.
This procedure was also in error since I-407s must be submitted to US Embassies and Consulates abroad or at ports of entry in the US.
After a while, the local office realized their mistake and returned the green card to the physician. The physician did not know what else he could do at this point.
Later, the VA applied for an extension of his H-1B status so that he could complete the 5 years service required for a green card through his NIW. The USCIS sent a notice to the VA informing them that since the physician had a green card, he was ineligible for an H-1B extension.
Green card in hand, the physician continued his work caring for US military veterans. He married a US citizen and they had a child together.
Five years after receiving his green card, the physician applied for naturalization in order to become a citizen of the United States.
The USCIS denied his application on the grounds that he was granted a green card in error. At this point, he hired an immigration attorney to appeal the denial.
If this was not enough bad news, what happened next came as a complete shock to the physician.
The USCIS issued a notice for him to appear (NTA) in Immigration Court on the ground that his green card was invalid and he should be deported from the US.
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When he received the NTA, the physician immediately scheduled a legal consultation with me. He retained our law firm to represent him and I assigned his case to Attorney Jennifer Rozdzielski who specializes in representing persons in Immigration Court.
She immediately called the Court’s 800 phone number only to learn that the USCIS had yet to serve the NTA on the Court.
She then spoke with the ICE District Counsel and explained the situation. The physician hadn’t made a single mistake except perhaps trying to get a green card without hiring an immigration attorney. The USCIS, on the other hand, had made numerous mistakes. They approved the adjustment of status application years too early, they had the physician sign an I-407 for which they lacked jurisdiction and much more.
Long story short, the ICE District Counsel agreed that based on the USCIS’s numerous mistakes, they would join us in submitting a Joint Motion to Terminate Removal Proceedings before the Immigration Judge.
The Motion was submitted and signed by the Immigration Judge last week. Due to the government’s errors, the Judge allowed the physician to keep his green card under Section 237(a)(1)(H), INA.
When I called the physician last week to congratulate him, he informed me that he and his family were drinking champagne with his father who was celebrating his 80th birthday.
I told him that although terminating deportation proceedings and allowing him to retain his permanent resident status in the US was a good start, our work for him would continue until he is sworn-in as a citizen of the United States.
He became a US citizen in November 2019.
Not only do our clients have to follow the law. So does the Government.