Set forth below you will find court cases and administrative rulings regarding J-1 waivers, H-1B for physicians, National Interest Waivers and other areas that affect doctors. These cases will give you the opportunity to understand the nuances in immigration law and gain insight into judicial interpretation of the different laws and regulations affecting foreign doctors.
Court of Appeals
A group of immigrant doctors challenge to the U.S. Citizenship and Immigration Services (USCIS) regulations implementing the Nursing Relief Act’s provisions allowing foreign doctors to seek a non-discretionary national interest waiver for doctors who agree to work in federally designated health professional shortage areas. The Ninth Circuit Court of Appeals ruled that certain regulatory provisions conflict with the Nursing Relief Act. The Ninth Circuit found that contrary to USCIS regulations, an immigrant doctor’s prior medical practice should count toward the medical practice requirement. The court also found that for purposes of determining whether the 3 or 5 years of service is required, a doctor’s national interest waiver must be filed before November 1, 1998, rather than filed and remain pending by a certain date. Finally, the court found that the USCIS properly devised a compliance system by requiring immigrant doctors subject to the 5-year medical practice requirement to submit evidence within 120 days of completion of the second year of requirement and additional evidence with 120 days of the fifth year of the requirement.
The Second Circuit Court of Appeals held that a positive recommendation from the Secretary of State is required for the U.S. Attorney General to grant a waiver of the two-year home country residency requirement for J-1 Exchange Visitors. The Court also found that judicial review of the US. Information Agency’s decisions with respect to waiver recommendations is severely limited to review for fraud, absence of jurisdiction or unconstitutionality.
Board of Immigration Appeals (BIA)
The BIA ruled that a J-1 Exchange Visitor may not be subject to the two-year home country residency requirement based on a vague determination of waiver ineligibility “by virtue of the Skills List,” without more specific reference to which Skills List. When the exchange visitor entered the U.S., the Skills List that was in effect may not have included her particular occupation. Since the exchange visitor’s J-1 sponsorship was not financed by the government of her home country and did not involve graduate medical education or training, the determination of whether the correct Skills List was used to determine whether the exchange visitor was subject to the two-year home country residency requirement was critical.
The BIA ruled that a favorable recommendation from the U.S. Department of State is essential to the approval of an application to waive the two-year home country residency requirement based on exceptional hardship to the exchange visitor’s U.S. citizen or lawful permanent resident spouse or child.
The Regional Commissioner found that a J-1 exchange visitor established that his U.S. citizen child would suffer exceptional hardship should he be required to satisfy the two-year home country residency requirement. Although the Department of State’s general policy was to require those who receive State Department grants (like the J-1 exchange visitor in this case) to fulfill this requirement, the Regional Commissioner found that he provided sufficient evidence that due to his Jewish heritage, he and his family would suffer persecution should they be required to return to his home country of Poland.
The Regional Commissioner found that a spouse of an exchange visitor who has participated in a program financed by the U.S. government is subject to the two-year home country residency requirement. Noting that a J-1 exchange visitor’s waiver application may include the J-2 family members, the Regional Commissioner found that in addition to clear regulatory provisions on this issue, J-2 family members derive benefits from the exchange visitor program, and thus are subject to the same foreign residence provisions as the J-1 exchange visitor without regard to whether the family members sign a statement acknowledging their understanding of this requirement.