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Stefan Schneider Anwar Tandar Komsu Mamuya Muhammad Aijaz Sattar Sandeep Harbans Jain Mahesh Krishnamoorthy Saravanan Kasthuri Bogdan Nedelescu v. Michael Chertoff, Secretary of Homeland Security Eduardo Aguirre, Jr., Acting Director of the Bureau of Citizenship and Immigration Services Bureau of Citizenship and Immigration Services
Citation: 450 F.3d 944Docket: 04-55689
Court: Court of Appeals for the Ninth Circuit; June 7, 2006; Federal Appellate Court
Plaintiffs-Appellants, including immigrant doctors Stefan Schneider, Anwar Tandar, Komsu Mamuya, and Saravanan Kasthuri, sought adjustment to lawful permanent resident (LPR) status due to their employment in medically underserved areas. They challenged the validity of several regulations implementing the Nursing Relief for Disadvantaged Areas Act of 1999 in federal district court, seeking declaratory and injunctive relief against the Secretary of Homeland Security. The district court denied their summary judgment motion and dismissed the case, leading to this timely appeal. The Ninth Circuit addressed the national interest waiver that allows immigrant doctors working in shortage areas to expedite their LPR status application process. Typically, applicants must secure a job offer, obtain labor certification, and then apply for LPR status. However, the national interest waiver allows them to bypass the initial job offer requirement. The program was established in the Immigration Act of 1990 and expanded by the Nursing Relief Act of 1999. The court affirmed the district court's decision in part and reversed it in part, indicating a nuanced interpretation of the national interest waiver's application as it relates to the plaintiffs' circumstances. The 1990 national interest waiver program allowed the Attorney General to waive the job offer requirement for immigrants whose services were deemed "in the national interest," enabling them to bypass the labor certification step and accelerate their path to lawful permanent residency (LPR). This waiver continues to exist in its original form today. In 1999, the Nursing Relief Act was enacted to address shortages in the healthcare workforce, introducing a non-immigrant visa for nurses and a non-discretionary national interest waiver for doctors willing to work in federally-designated health professional shortage areas. Eligibility for this waiver requires doctors to work full-time in these areas for five years, or three years if they applied for a discretionary waiver before November 1, 1998. In implementing these provisions, the Secretary established regulations in 2000, which are now being challenged by immigrant doctors on five grounds: (1) the requirement that qualifying practice starts only upon approval of the immigrant visa petition; (2) the stipulation that doctors who applied for a waiver before November 1, 1998, must practice for five years if their initial application was denied before November 12, 1999; (3) the limited time frame for completing qualifying practice, with revocation of the visa petition if not completed; (4) the restriction on eligibility for the waiver to doctors in specialties designated as shortages by the Secretary of Health and Human Services; and (5) the necessity for multiple submissions to verify compliance with the medical practice requirement before obtaining LPR status. The Immigrant Doctors, all licensed medical professionals in the U.S., are pursuing adjustment to Lawful Permanent Resident (LPR) status through second preference employment-based immigrant visa petitions and national interest waiver requests filed by their employers. Initially, eight doctors were named in the complaint filed in 2002, but four have since achieved LPR status, making their claims moot. Dr. Stefan Schneider, a German citizen, entered the U.S. in 1992 on a J-1 visa and later transitioned to O-1 status. He has been employed as an infectious disease specialist for Pro Health, Inc. in California since September 1998, and his application for adjustment to LPR status is pending after DHS approved his immigrant visa petition and national interest waiver in June 2003. Dr. Anwar Tandar, from Indonesia, entered the U.S. in 1997 and worked at a designated shortage area hospital until June 2003. His initial immigrant visa petition and waiver request were denied in 1999, but a subsequent petition filed in 2001 was approved. His application for LPR status, submitted in November 2001, is still pending. Dr. Komsu Mamuya, a Tanzanian national, came to the U.S. in 1987 on an F-1 visa and shifted to temporary worker status in 1996. After working at Beth Israel Hospital and then the Fallon Clinic in a shortage area, his immigrant visa petition and national interest waiver were approved in September 2001. He applied for adjustment to LPR status in November 2001, which remains pending. Dr. Saravanan Kasthuri, an Indian radiologist, entered the U.S. on a J-1 visa in 1995 and switched to H-1B status in 2001. He started working for Columbia Basin Imaging in a designated shortage area in June 2001, and it appears he continues there. On March 31, 2003, an immigrant visa petition and national interest waiver request for Dr. Kasthuri was filed by his employer with DHS. Between March 31, 2003, and August 9, 2004, DHS issued a request for evidence regarding the petition, which they claim Dr. Kasthuri did not respond to, leading to a denial of his applications due to abandonment on August 9, 2004. Dr. Kasthuri contests this, providing evidence of his response. The Immigrant Doctors initiated a lawsuit for declaratory and injunctive relief on December 4, 2002, in the U.S. District Court for the Central District of California. They sought a declaration that certain Secretary's regulations were inconsistent with the Nursing Relief Act and a permanent injunction against their enforcement. A motion for summary judgment filed by the Immigrant Doctors on December 1, 2003, was denied, and their action was dismissed on March 26, 2004, with the court finding that the contested regulations did not contradict the Immigration and Nationality Act (INA) or the Nursing Relief Act. The Immigrant Doctors appealed this decision. The analysis section states that agency interpretations of statutes are reviewed de novo, emphasizing that constructions contrary to clear congressional intent should be rejected. The Supreme Court's Chevron framework is outlined, establishing a two-part test for judicial review of agency interpretations. First, if congressional intent is clear, that intent must be followed. If the statute is ambiguous, the court must defer to the agency as long as its interpretation is permissible and not arbitrary or capricious. A regulatory challenge arises regarding whether a doctor's medical practice in a designated shortage area before the approval of their immigrant visa petition and national interest waiver can count towards the required duration of practice for obtaining lawful permanent resident (LPR) status. The Nursing Relief Act stipulates that an immigrant doctor must work in such an area for an aggregate of three to five years (8 U.S.C. 1153(b)(2)(B)(ii)(II)). The Secretary's regulation states that the counting for this requirement starts only upon the approval of the petition and waiver (8 C.F.R. 245.18(e)), leading to the exclusion of prior practice from the total required duration. The central issue is whether this regulation conflicts with the Nursing Relief Act, potentially rendering it ultra vires. An analysis using Chevron deference reveals that Congress intended for prior medical practice to contribute to the requirement. Key points supporting this conclusion include: the clear language of the statute indicating an aggregate requirement, the potential redundancy created by interpreting it otherwise, and Congress's decision to exclude only J-1 non-immigrant status practices from the requirement. The statute's language indicates that an immigrant doctor should work full-time for an "aggregate" period in a designated area, suggesting that separate periods of qualifying practice can be summed to meet the three or five-year requirement. Thus, the term "aggregate" is interpreted to encompass various shorter practices as part of a flexible total, affirming that prior medical practice should indeed count towards fulfilling the medical practice requirement. A conclusion that contradicts the findings would render parts of the Nursing Relief Act unnecessary. Congress intended for immigrant doctors to file visa petitions before completing the medical practice requirement, as indicated in 8 U.S.C. 1153(b)(2)(B)(ii)(III). The Act clarifies that prior medical practice should be counted toward this requirement, contrary to the Secretary's regulation, which delays the start of medical practice until after petition approval. This interpretation aligns with the statutory principle that the inclusion of specific exemptions implies the exclusion of others, as demonstrated by the exemption for J-1 status medical practice under 8 U.S.C. 1153(b)(2)(B)(ii)(II). Consequently, the Secretary's regulation is deemed inconsistent with congressional intent and therefore invalid. Additionally, regarding national interest waiver applications filed before November 1, 1998, Congress stipulated that these immigrant doctors should only work for three years in designated shortage areas to qualify for lawful permanent resident (LPR) status. However, the Secretary's regulation distinguishes between doctors whose waiver requests were denied before November 12, 1999, who must fulfill a five-year requirement instead of three years, and those with pending applications as of that date. The regulation allows denied applicants to submit new petitions under the five-year requirement provisions of 8 U.S.C. 1153(b)(2)(B)(ii). Dr. Tandar is the sole claimant in this case. His employer submitted a discretionary national interest waiver application for him on June 1, 1998, prior to the enactment of the Nursing Relief Act. The Department of Homeland Security (DHS) denied Dr. Tandar's initial application on June 21, 1999, asserting he failed to demonstrate that the waiver would serve the national interest. The Secretary of DHS contends that Dr. Tandar must fulfill a five-year medical practice requirement, while Dr. Tandar argues he should only be subject to a three-year requirement since his application was filed before November 1, 1998. The analysis reveals that the statutory language and applicable principles of statutory interpretation indicate that the Secretary's regulation contradicts Congress's intent in the Nursing Relief Act. The term "was filed" simply means that an application was made, without implying that it must be pending on a specific date. Chevron's first prong mandates that if statutory language is clear, it must be interpreted according to its plain meaning. Congress established a single condition for the three-year practice requirement: that an application for a national interest waiver "was filed" before the specified date. The Secretary's regulation, however, imposes a five-year requirement on some doctors, deviating from the statutory intent. Dr. Tandar's situation exemplifies this inconsistency, as his application was submitted before the cutoff date, yet he is still subjected to the longer requirement due to the regulation. This contradiction emphasizes that the regulation fails to adhere to the statute's clear language and intent. Consequently, the court finds that the Secretary's regulation is in conflict with the Nursing Relief Act and is ultra vires. The Immigrant Doctors' claim challenges a regulation that imposes time limits on the completion of the medical practice requirement for immigrant doctors seeking lawful permanent resident (LPR) status under the Nursing Relief Act. The Act mandates that these doctors practice in shortage areas for an aggregate term of three or five years, as specified in 8 U.S.C. 1153(b)(2)(B)(ii)(II). However, the Secretary's regulation adds specific limitations: a five-year requirement must be completed within six years of visa approval, while a three-year requirement must be completed within four years. The Immigrant Doctors argue this regulation conflicts with the Act's provisions, which do not impose such additional time constraints. The court agrees, emphasizing that Congress intended no limitations on the aggregate practice requirement, as reflected in the clear statutory language. The term "aggregate" suggests that time can be accumulated over an open-ended period, allowing for interruptions, contrary to the imposed strict deadlines. The Nursing Relief Act does not authorize the Secretary to create a regulation that imposes a strict limitations period. Congress has clearly outlined limitations in other sections of the Immigration and Nationality Act (INA), demonstrating its ability to specify time constraints where intended. For example, various provisions detail specific timeframes for continuous presence and adjustment of status. In contrast, the regulation in question imposes a strict limitations period not envisioned by the Nursing Relief Act, leading to adverse consequences for immigrant doctors who fail to comply, such as denial of adjustment applications and revocation of visas. The Secretary argues that a limitations period is necessary to prevent indefinite pending immigration statuses for immigrant doctors, allowing them to practice without penalty. While the Secretary's concerns are acknowledged, it is emphasized that Congress allowed for interruptions in qualifying medical service by using terms like "aggregate." The Secretary, responsible for enforcing the INA, cannot impose obligations beyond what is required by law. There is a fundamental distinction between filling legislative gaps and rewriting laws enacted by Congress. Therefore, the regulation imposing a strict limitations period without a statutory basis is deemed inconsistent with Congress's intent and is considered ultra vires to the Nursing Relief Act. Specialist doctors argue for eligibility for national interest waivers under the Nursing Relief Act, asserting that the Secretary's regulations contradict congressional intent. Under 8 U.S.C. 1153(b)(2)(B)(ii)(I), any alien physician working in a designated shortage area is entitled to a waiver, but the Secretary's regulation limits eligibility to doctors practicing in specified medical specialties. Dr. Kasthuri, the only specialist involved, worked in a shortage area since 2001 and had a petition and waiver request pending until it was denied due to abandonment in 2004 after he failed to respond to a request for evidence. The Secretary contends that Dr. Kasthuri's claim is moot because of this denial. The court emphasizes that federal courts can only decide cases with live controversies and outlines the three elements of standing: injury in fact, causation, and likelihood of redress. Since Dr. Kasthuri's injury was caused by the abandonment of his petition and not the regulation itself, and a favorable ruling would not address his injury, his claim is moot. Consequently, the court dismisses this part of the appeal without addressing the merits of the regulatory challenge. The Immigrant Doctors challenge the Secretary's regulation, asserting it imposes a redundant compliance system that contradicts the Nursing Relief Act. They contend that doctors should not be obligated to report progress towards the medical practice requirement to the Department of Homeland Security (DHS) twice. Under the regulation, immigrant doctors must provide evidence of compliance within 120 days after completing the second and fifth years of the required five-year medical practice, with failure to do so leading to a notice of intent to deny adjustment to lawful permanent resident (LPR) status, followed by denial and revocation of the immigrant visa petition if compliance is not demonstrated. The Nursing Relief Act does not specify compliance procedures, leaving a "gap" for agency interpretation under Chevron deference. The Secretary's requirement for evidence submission is deemed reasonable given the lengthy five-year practice requirement, which is longer than other statutory periods in the Immigration and Nationality Act (INA). The compliance system is found not to conflict with congressional intent or frustrate policy objectives, as the Immigrant Doctors provided minimal counter-arguments. The conclusion affirms that certain parts of the Secretary's regulation are in conflict with and exceed the authority of the Nursing Relief Act, specifically: 1) exclusion of pre-approval shortage-area practice from the medical practice requirement; 2) compliance obligation for doctors denied national interest waivers prior to specific dates; and 3) the imposition of a four or six-year limitations period for completing the medical practice requirement. The Immigrant Doctors do not have standing to contest regulations that prevent specialist physicians, such as Dr. Kasthuri, from obtaining a national interest waiver. The regulation that allegedly establishes a "double compliance" system is deemed a valid interpretation of the Nursing Relief Act and is not ultra vires to the Act. The court affirms some aspects of the previous ruling, reverses others, and remands the case to the district court for the issuance of declaratory and injunctive relief for the plaintiffs in accordance with this opinion. Michael Chertoff replaces Thomas J. Ridge as Secretary of Homeland Security, as per Fed. R.App. P. 43(c)(2). To secure labor certification, employers must demonstrate a lack of sufficient U.S. workers for the job and prove that hiring an immigrant doctor will not negatively impact U.S. wages and working conditions. The national interest waiver under the Nursing Relief Act differs from the one established in 1990 in two key ways: it is mandatory rather than discretionary and imposes a requirement for the alien to work in qualifying employment for a set period before obtaining lawful permanent resident status. The interim rule was enacted by the Attorney General at the time, who was responsible for administering the Immigration and Nationality Act, with regulatory authority later transferred to the Secretary of Homeland Security. The Secretary implemented the rule without prior notice or comment, citing immediate public health needs to address shortages in underserved areas, although concerns remain regarding the lack of response to public comments and the absence of a finalized rule after more than five years. Four doctors are identified: Muhammad Aijaz Sattar, Sandeep Harbans Jain, Mahesh Krishnamoorthy, and Bogdan Nedelescu. Dr. Schneider's initial J-1 status is significant because the Nursing Relief Act states that medical practice during J-1 status does not count towards the three-year or five-year medical practice requirements under 8 U.S.C. § 1153(b)(2)(B)(ii)(II, IV). The Immigration and Naturalization Service has been replaced by the Department of Homeland Security (DHS) as of the Homeland Security Act of 2002. Dr. Tandar's national interest waiver application predates the Nursing Relief Act, which allowed the Attorney General to grant waivers in the national interest. Both Dr. Schneider and Dr. Tandar's medical practices in shortage areas do not count towards the practice requirements due to their J-1 status. Dr. Schneider worked in a shortage area from September 1, 1998, to June 26, 2003, but these years do not count towards his medical practice requirement. Dr. Tandar began working in August 1997, with his waiver approved on September 11, 2001. Dr. Mamuya worked in a shortage area starting July 1999, and his petition was approved on September 11, 2001. Dr. Kasthuri began working in June 2001 and has yet to have his petition approved. Each doctor would have nearly completed their medical practice requirements if prior practice had been considered. The five-year medical practice requirement specifies that an alien physician must work full-time for five years in designated shortage areas, excluding time served in J-1 status. Similarly, the three-year requirement states that physicians applying for a waiver before November 1, 1998, must work full-time for three years, also excluding J-1 status time. The term "aggregate" is defined as a total formed by combining particulars. The definitions of "aggregate," both common and legal, align closely, yielding the same interpretation. While legislative history is not considered under Chevron's first prong, the Secretary's regulation undermines the Nursing Relief Act's intent to improve healthcare access in underserved communities by allowing alien physicians to bypass the labor certification process. This provision was designed to ensure that areas with healthcare professional shortages could attract immigrant doctors quickly. The case at hand does not necessitate a detailed analysis of filing protocols, as the Department of Homeland Security (DHS) accepted Dr. Tandar's application prior to November 1, 1998, and denied it solely on merits, not filing defects. The definitions of "file" also closely mirror common usage, indicating the act of submitting legal documents for official record. Under the Nursing Relief Act, an immigrant doctor can seek a status adjustment based on an approved visa petition but cannot secure lawful permanent residency (LPR) until fulfilling a medical practice requirement. If this requirement had no time limit, the doctor could remain in the U.S., working in any job indefinitely while awaiting status adjustment, thus delaying the process. Immigrant doctors under the three-year practice requirement must only provide evidence once, highlighting the need for compliance with the Nursing Relief Act's five-year medical practice stipulation.