Court opens door to permanent resident status: Rules lifted for foreign doctors

Thousands of foreign physicians will likely find it easier to live and practice in the United States after a federal appeals court overturned government regulations that limited their ability to obtain residency after working in medically underserved areas in this country.

In a 3-0 decision, a 9th U.S. Circuit Court of Appeals panel in June concluded that stricter rules immigration officials adopted in 2000 conflicted with a 1999 federal law enacted to encourage foreign doctors to practice in federally-designated communities where medical help is scarce.

Doctors said the 2000 rules undid what Congress tried to accomplish when it passed the Nursing Relief for Disadvantaged Areas Act of 1999. The Immigration and Naturalization Service, which was consolidated under the Dept. of Homeland Security in 2002, estimated that the act would open the door to about 8,000 foreign-born doctors annually.

The law did that by creating a fast-track national interest waiver that allows a doctor in the United States on a temporary visa, other than a J-1, to qualify for permanent resident status after working for five years in a shortage location. The requirement is three years for those who applied for the waiver before November 1998, when the statute passed.

A group of eight immigrant doctors in 2002 challenged the new rules that did not count the time they had practiced in underserved areas before applying for the waiver and limited the amount of time they had to complete their services in order to qualify for U.S. residency.

For plaintiff Stefan Schneider, MD, an infectious disease specialist from Germany, who spent more than four years in two California AIDS clinics before his waiver was approved, "the law would have basically said he was starting over," if the court didn't overturn the regulations, said California-based Carl Shusterman, the doctors' attorney.

The 9th Circuit's ruling reversed a lower court decision. The appellate court determined that a majority of the rules contested were invalid because they imposed unfair restrictions not intended in the act.

The court declined to clarify, however, whether the regulations unfairly exclude certain specialists from applying for the waiver.

Nevertheless, the ruling will "encourage a few hundred physicians a year to take advantage of the program and help a lot of patients in underserved areas," Shusterman said. The stricter regulations, he added, had discouraged foreign doctors from applying for the waiver.

Chris Bentley, spokesman for U.S. Citizenship and Immigration Services, declined to comment, saying the agency is reviewing the decision.

Court finds rules too restrictive

In the 9th Circuit ruling, judges struck down three DHS immigration regulations.

First, it struck down rules dealing with how full-time work in the shortage area was calculated. The doctors said that the government-implemented rules excluded any service they did before their national interest waiver or accompanying permanent visa petition was approved.

The court agreed the rule was not valid, stating that "Congress intended to comprehensively include even short periods of qualifying medical practice to make the requirement flexible," Judge Harry Pregerson wrote.

Doctors challenged a second regulation that established a maximum time in which they must finish their medical service. With the clock starting on the date the waiver was approved, doctors would have to complete their three-year service in four years, or five-year service in six years.

The government argued that without the limitations, doctors could potentially remain in the United States on an indefinite pending immigration status, and possibly engage in other unauthorized medical practice, according to the opinion.

Recognizing that interruption may arise, however, the court found the rule to be in conflict with the act, in which Congress did not institute any penalties for gaps in medical service.

Thirdly, the court objected to a requirement that doctors who applied for a waiver before the November 1998 cut-off must fulfill five years of service, instead of three, if their application was either pending or denied.

The DHS rule "changes the statutory requirement with respect to an entire class of doctors," the judges wrote.

Although the decision was mostly a victory for immigrant doctors, the court did not rule on whether certain specialists are eligible to apply for the waiver.

Doctors argued that under the act, "any alien physician" who agrees to work in a designated area may be issued a waiver. The DHS regulation, however, states that doctors who practice "in a medical specialty that is within the scope of the [federal] designation for the geographical area" are eligible.

Because the radiologist bringing the claim did not respond to appropriate DHS information requests when he was denied his waiver, the court determined that the doctor had no valid basis on which to challenge the conflict.

Shusterman indicated that he plans to revisit the specialty issue in a future case.

Delegates at the American Medical Association's Annual Meeting in June voted to press Congress to make it quicker and easier for foreign doctors to obtain visas to work and stay in the United States.