Murthy Law Firm Approval of Physician's I-485 on MTR
Posted Dec 12, 2008
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The Murthy Law Firm is pleased to report that we recently obtained the approval of an I-485 Motion to Reopen (MTR) of a former J-1 physician, who had received a denial of her I-485, Adjustment of Status application, filed by another law firm. The physician was prepared to depart the U.S., when the family contacted the Murthy Law Firm for help. The issue involved compliance with the terms of a waiver of the J-1 two-year home residency requirement. The problem was created when the client changed jobs and locations during the three years of required service in a medically underserved area. Information about clients or cases is not shared without permission of the individuals involved. This client is willing to share the case details to help readers of MurthyDotCom and the MurthyBulletin.
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Waiver Requirements : Three Years
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As explained in earlier MurthyBulletin articles, physicians who engage in graduate medical training in the United States in J-1 status are subject to the two-year home residency requirement upon completion of their training. As an alternative to spending two years in the home country, in some situations it is possible to request a waiver. The most common avenue for such waivers for foreign physicians is through a commitment to work in a designated shortage area for three years. More information on these waivers is available in our March 16, 2007 article, Congress Extends the Conrad State Program until June 1, 2008. [NOTE: This program has been extended to March 2009.] The client in question had obtained this type of waiver. Accordingly, she committed to three years of service in a particular location, for a specific employer. The employer filed an H1B petition for the physician, which was approved.
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Change of MUA Employment Requires Extenuating Circumstances
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The J-1 waiver for work in a shortage area is based upon a specific job offer, in a specific location, with a particular employer. Failure to meet the commitment to work for three years in a medically underserved area (MUA) results in the reinstatement of the two-year home return requirement. This makes the physician ineligible for many immigration benefits, including adjustment of status to permanent residence.
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There are limited situations in which a physician might be permitted to change employers during the three-year service term. A physician must show that there are "extenuating circumstances" justifying the change in employment. Extenuating circumstances include closure of the sponsoring facility or hardship to the physician sufficient to justify termination of the waiver employment short of the three-year commitment. The physician must still work in a qualifying area for a suitable employer for the balance of the three-year commitment. We at the Murthy Law Firm have represented clients in connection with such changes of employment. Typically, the reasons for change rise to the level where it would be impossible, unethical, or malpractice to continue to work under the circumstances. There are also situations in which employers fail to pay the employees properly and similar matters.
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H1B Approved without Demonstrating Extenuating Circumstances
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In this case, the physician encountered difficulties with the sponsoring employer. The physician located alternative employment in another shortage area, and the new employer obtained approval of an H1B petition for the new employment. However, the H1B petition did not show extenuating circumstances justifying the change, as required. The case was filed as a standard H1B for a new job, without explanation or justification. The USCIS apparently overlooked the matter, as no Request for Evidence (RFE) or Notice of Intent to Deny (NOID) was issued due to a failure to demonstrate extenuating circumstances.
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The physician was unaware of the requirement to show extenuating circumstances when making a change of employer during the three-year waiver commitment period. She thought all was well, and completed a full three years of service at the new employer. Thus, she actually worked more than three years in a qualifying MUA, as she had worked for the waiver sponsor for a number of months before making the change.
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Physician's Adjustment of Status (I-485) Denied
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After the physician finished the required three years of service, she applied for adjustment of status to permanent residence, on Form I-485, as the derivative beneficiary of her spouse's employment-based permanent residence ("green card") case. The spouse's I-485 application was approved. However, the physician's adjustment of status application was denied. The USCIS did not issue an RFE or NOID prior to the denial. The USCIS determined that the physician had not completed the required three years of service with the original waiver-sponsoring employer and, thus, became subject again to the J-1 home residence requirement. As mentioned, individuals subject to the two-year home return requirement are not eligible for adjustment of status to permanent residence.
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Murthy Law Firm Files the I-485 MTR
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The physician and her husband discussed the matter with the husband's attorney, who had not prepared or filed the H1B petition. The husband's attorney correctly advised that it was a difficult case, unless the H1B petition for the job change had actually included proof of extenuating circumstances. Otherwise, the attorney advised that the denial was, essentially, correct and would be difficult, if not impossible, to overcome. The couple started making arrangements for the wife's return from the U.S. to the home country.
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However, faced with the prospect of being separated from a lawful permanent resident spouse and the United States citizen child for two years, the couple decided to seek a second opinion, and contacted the Murthy Law Firm. We confirmed that this was a difficult situation, but agreed to file a Motion to Reopen (MTR) the I-485, only a few days prior to the MTR filing deadline.
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Murthy Law Firm's MTR Showing Extenuating Circumstances Approved by USCIS
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The I-485 denial had simply stated that the case was denied because the applicant had failed to work for the required J-1 waiver-sponsoring employer for three years. Therefore, in our motion, we argued that the I-485 denial was incorrect because it failed consider the possibility of changing employment when there are extenuating circumstances. We further argued that there were, in fact, extenuating circumstances that justified the change in employment during the waiver period. We submitted proof of those circumstances, primarily in the form of an affidavit from the physician. We argued that the extenuating circumstances would have been demonstrated, if the USCIS had requested that information in an RFE or NOID prior to the approval of the H1B petition. Based upon this, we requested that the I-485 be reopened, as the physician had complied with the terms of the waiver, and that she should not be harmed due to the USCIS's failure to request proof of extenuating circumstances years earlier, when the H1B petition for a change in employment was filed and approved.
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Several months later, we at the Murthy Law Firm received the wonderful news that the I-485 was approved. The USCIS granted the Motion to Reopen, and approved the I-485, Adjustment-of-Status application for our client. This resulted in her becoming a U.S. permanent resident or "green card holder" and allowed her to remain happily in the U.S. with her family.
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Conclusion
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While there is no law firm in the world capable of remedying every difficult situation, there are situations in which the uphill battle is worth fighting. We were delighted and honored to help this client, and her family, in her obtaining permanent resident status. The key elements in this case included the good faith of the client, as well as the USCIS's mistake of not requesting evidence when her H1B petition was approved. The situation was sympathetic, and the purpose of the waiver had been accomplished, as the physician actually had provided more than three years of service in the medically underserved area. It often is wise to obtain a second opinion from a qualified, knowledgeable attorney or law firm, to ensure that you and your family have considered all options.