sustained H-1B Case: Medicine

identifyingdatadeletedto
preventclearly unwarranted
invasionofpersonalpnvacy
U.S.Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE:
PUBLICcopy
SRC 05 173 50083
(\'\tL."
\U . MAR 15 2007
Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
, /:?2U·.t'iaJ71ft:
/ ih-. Robert P. Wiemann, C f
Administrative Appeal Office
www.uscis.gov
SRC 05 173 50083
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will
be approved.
The petitioner is a medical practice that seeks to employ the beneficiary as a physician. The petitioner,
therefore, endeavors to extend the beneficiary's classification as a nonimmigrant worker in a specialty
occupation pursuant to section 101 (a)(15)(H)(i)(b) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation;
(2) the director's request for additional evidence; (3) the petitioner's response to the director's request;
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO
reviewed the record in its entirety before issuing its decision.
Pursuant to 8 C.F.R. § 212.7(c)(9), aliens admitted to the United States under section 101(a)(l5)(J) of the
Immigration and Nationality Act (the Act), or who acquired status under section 101(a)(15)(J) of the Act
after admission to the United States, to participate in an exchange program of graduate medical education
or training, may be granted a waiver of the 2-year home country residence and physical presence
requirement (the 2-year requirement) under section 212(e)(iii) of the Act. Foreign medical graduates are
eligible to apply for a waiver of the 2-year home residency requirement based on a request by a State
Department of Public Health, or its equivalent, if they meet the following conditions:
(A) They were admitted to the United States under section 101(a)(15)(J) of the Act,
or acquired nonimmigrant J nonimmigrant status before June 1, 2002, to pursue
graduate medical education or training in the United States;
(B) They have entered into a bona fide, full-time employment contract for 3 years to
practice medicine at a health care facility located in an area or areas designated
by the Secretary of Health and Human Services as having a shortage of
healthcare professionals ("HHS-designated shortage area");
(C) They agree to commence employment within 90 days of receipt of the waiver
under this section and agree to practice medicine for 3 years at the facility named
in the waiver application and only in HHS-designated shortage areas....
(D) The Department of Public Health, or its equivalent, in the State where the health
facility is located has requested the Director, USIA, to recommend the waiver,
and the Director, USIA,1 submits a favorable waiver recommendation to the
Service ....
The regulation at 8 C.F.R. § 2l2.7(c)(9)(iv) provides that foreign medical graduates who fail to meet the
terms and conditions imposed on the waiver under section 214(1) of the Act and this paragraph will once
again become subject to the 2-year home residency requirement under section 212(e) of the Act. Under
1 The United States Information Agency (USIA) ceased operations on October 1, 1999, pursuant to the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2861 et seq.
(1998). The DOS Waiver Review Division now handles requests for waiver of the home residency
requirement.
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section 214(1)(C) of the Act , however, the Service (now Citizenship and Immigration Services (CIS»
may, in the exercise of discretion, excuse early termination of the foreign medical graduate's 3-year
period of employment with the health care facility named in the waiver application due to extenuating
circumstances. Such circumstances may include, but are not limited to, closure of the health care facility
or hardship to the alien . A determination of whether to excuse such early termination of employment
shall be based on the specific facts of each case, with the foreign medical graduate bearing the burden of
establishing eligibility for a favorable exercise of discretion. Under no circumstance, however, will a
foreign medical graduate be able to apply for a change of status to another nonimmigrant category, for an
immigrant visa, or for status as a lawful permanent resident prior to completing the requisite 3-year period
of employment at a healthcare facility located in an IlliS-designated shortage area.
The director denied the petition on the basis of his determination that the petitioner had not submitted
evidence to establish that extenuating circumstances had prevented the beneficiary from completing his
obligated three-year period of employment with a previous petitioner.
The beneficiary 's J-l visa waiver application was recommended by the Texas Department of Public
Health (TDPH)? The DOS granted the TDPH's request, and recommended that CIS grant the waiver on
October 17,2003 . CIS appro ved the H-IB petition on October 26 ,2003 , and the beneficiary began
working shortly thereafter .
The instant petition was received at the service center on May 27, 2005 . In the initial submission and
response to the director 's request for additional evidence , counsel, the petitioner, and the beneficiary
contend that extenuating circumstances beyond the control of the beneficiary have made it impossible for
the beneficiary to continue his employment at the initially-approved location of employment.
Specifically, the beneficiary contends that the original employer required him to work too many hours
and violated the terms and conditions of the employment agreement. The beneficiary contends that
although he agreed to work "more than 40 hours per week" when he signed the employment agreement ,
he did not realize that it would mean 84-105 hours per week. According to the beneficiary:
[The petitioner] made me solely responsible for 75-80% of all patient rounds in all five
hospitals without any support from another physician, amounting to about 40-50 very
sick inpatients a day. Such a patient load for a single physician is very inadvisable from
the standpoint of medical care, especially for very ill patients who require much
attention . . . .
[The petitioner's] requirement that I regularly work an excessive number of hours and
handle a dangerously large number of patients, including critically ill patients, meant that
I spent insufficient time with each patient. .. .
The AMA 3 Code of Ethics (principles I and III) requires that we give our utmost care and
attention to our patients and put the welfare of our patients first and above our own
interests, including our own financial interests . . . this type of practice of medicine
2 The record does not contain a copy of the TDPH's recommendation . However, the DOS
recommendation establishes that it was the TDPH that recommended the waiver to DOS.
3 Although not stated, the AAO will assume that the beneficiary is referring to the American Medical
Association.
SRC 05 173 50083
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jeopardized my ability to give full, proper[,] and complete medical care to my
patients ....
The beneficiary also contends that his original employer breached the employment agreement that the two
parties had signed. He claims that he was never paid on time, that payroll deductions from his paychecks
were not taken, that the number of hours worked were in excess of what was contemplated, and that the
percentage of patient-load that the beneficiary would split with his supervisor were altered in a manner
not contemplated by the employment agreement.
In her October 25, 2005 denial, the director found that the petitioner had submitted insufficient evidence
to document the claims made in the petition.
On appeal, the petitioner submits additional evidence to establish that extenuating circumstances, beyond
the control of the beneficiary, made it impossible for him to fulfill the terms and conditions of his J-l visa
waiver obligations as originally approved.
For example, the petitioner submits an affidavit from Craig S. Smith, an attorney with whom the
beneficiary consulted, prior to the filing of this petition, for legal advice regarding his employment
situation. The record establishes that the beneficiary has paid Mr. Smith at least $12,289 for his services.
Mr. Smith states the following:
[The beneficiary's original employer] breached the Employment Contract by imposing
working conditions upon [the beneficiary] that violated Section 5 of the Employment
Contract. ...
[The beneficiary's original employer] committed fraud when it entered into the
Employment Contract with [the beneficiary] and fraudulently induced [the beneficiary] to
enter into the Employment Contract. ...
[The beneficiary] under Texas law can declare the Employment Contract void based on
the fraud committed by [the beneficiary's original employer] ....
[The beneficiary's original employer] had constructively discharged [the beneficiary]
under Texas law by making working conditions so intolerable that [the beneficiary] felt
compelled to resign....
[Ijf [the beneficiary] continued to obey the working conditions imposed upon him by [the
beneficiary's original employer], then [the beneficiary] would violate the law by violating
the federal Medicare program's Condition of Participation, which [the beneficiary] was
required by law to observe since he was and continues to be a participating provider
under the Medicare program.
The issue before the AAO on appeal is whether the petitioner had met its burdenof proof, pursuant to section
214(l)(C) of the Act, in establishing that extenuating circumstances exist to excuse the beneficiary from
completing his 3-year period of medical service in an HHS-designated shortage area as originally
approved.
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The AAO finds that such a demonstration has been made. The AAO finds that the weight of the evidence
establishes that the working conditions under which the beneficiary was required to practice medicine
under his previous employer constitute the extenuating circumstances necessary to establish eligibility
under section 214(l)(C) of the Act. The petitioner has submitted a great deal of evidence, including
letters from attorneys and colleagues, attesting to the beneficiary's working conditions, which establish
extenuating circumstances over which the beneficiary had no control. Moreover, the petitioner has
submitted evidence to demonstrate that the beneficiary made a good faith effort to ameliorate the
situation, without success. Accordingly, the AAO finds that the petitioner has met its burden of proof and
will sustain the appeal.
As such, the petitioner, a medical services provider serving Hidalgo County, Texas, a designated Health
Professional Shortage Area at the time this petition was filed, may employ the beneficiary in the capacity
petitioned.
This decision concerns only the issues regarding immigration law that surround this case. The AAO is
without authority to make any determination on the issues in this case involving Texas contract law.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361. The petitioner has sustained that burden and the appeal shall accordingly be sustained.
ORDER: The appeal is sustained. The petition is approved.