immigration law and what they did is simplify the process by which a foreign born doctor who would serve a certain number of years in that under served area could get permanent residence that la then interpreted by ins regulations in the year two thousand which substantially restricted the language of the law and contradicted the congressional intent two years later we brought a lawsuit and in two thousand and four challenging the regulations on behalf of aliens as visions have now been reduced to four since the immigration service has granted four of the cases our position is very clear just assuming that the statute was ambiguous with very little analysis and then turning off her attention to whether the regulations which whether there are reasonable or not if i can bring up one simple example the law provides that its benefits are given to any alien physician those three words the regulations say no specialists need apply and i could bring many examples   thank your honor i think i can stand it is just a question of making it from the table they please the court i'm assistant united states attorney joey and costs not and i represent the defendant happily it has been long settled that courts should defer to the administrative agency to administer congressionally creat programs chevron requires deference to the agency construction if it is a reasonable interpretation even if the court whether it be the district court or this court might have adopted a different construction if presented to the court for sense if we c carved out an exception for j one of these amendments it does not carve out any other exceptions but the normal principles of statutory construction doesn't mean you count everything except the jam on regulations have stepped in to provide that definition the statute itself is precise fact in nature the language of the statute speaks to physicians who provide a present agreement to work student status a training for the purpose of the statute would be to provide medical doctors to understand areas which is not accomplished through the chain one with regard to the other status to which the court describes the statute and the agency in its interpretation of the statute looks to the provision of that i won forty petition for immigrant worker and the national interest waiver and the approval date of that and they do that because the statute is prospective in nature because the spat that actually speaks to providing the agreement to work also the fact that the agency does this is quite common in the provision of immigration benefits that it's the date of approval of those benefits that from which the clock starts to run here it's the date of approval of the petition in the national interest waiver of which all of the factors food you aren't a doctor you don't meet the definition so why would congress and included the jane want to exempt if it glad i don't want to it doesn't make any sense for congress to have to fix it for me just in looking at the at that trying to do a straight statutory construction on this in an honest way that gives meaning to the structure of the statute and give effect to all of its provisions a j one for vision at least in my reading effort and maybe you think you can have a different one you can persuade would be completely irrelevant if under your interpretation because medical students wouldn't qualify as doctors in under served areas yes or and they couldn't handle that right the actor i think other would you have to have the agreement as you said so why would congress put in the j one exemption if you didn't intend that you could make an agreement in the other categories be one or something else and have that time down it's a very agreement your honor that it doesn't conversation agrees that he will not return to his country he gets a waiver of that to your return and he agrees to serve in a medically underserved area which qualifies to be in the thing actually in the public interest partly so the j one there and that circumstance can convert and rather than having of your time thought the three years that he serves in the medical under served area and five years beyond for his adjustment he would have a five year time period in that circumstance but the national interest the public interest in his employment is already confirmed by the agency it's not so with regard to  you one be is granted person is working in an under served area that is later declared to be in the national interest for the actual in the real world the national interest has not changed from the time of approval to the time fire to approval let's say than an h one b in my home state of montana where we do need physicians in a rural area and then there for four years well then the determination that that service is in the national have that limitation on their work within their status if they have an appropriately approved the titian they have authorization to work and they can do so anywhere that are while they may be in fact have chosen to do it in the area that's medically underserved they c there is no prohibition on that position from immediately applying for an i one forty in a natural interest waiver if in fact that position is seeking to convert status to be come an immigrant and ultimately a lawful permanent resident and perhaps ultimately beyon citizen of the united states this is a unique program to serve a need but it's also a program that that has to be monitored by the agency and that the physicians that are part of that program to qualify for it there is that delays that one may see here are not allowed by the agency that are rather physicians that simply do not apply for the program that exists that is the agency no indication that they intended for their stay in the united states be anything other than temporary it is with the applications for the natural interest waiver and the i one forty protection for immigrant worker that that's done as changes and it is with that change this program provides for a shortened route to lawful permanent residence and national interest waiver eliminates the department of labor certification that any other physician would be required to obtain in order to have an employment based approved petition that labor certification is a month to one and requires that the in this case the individual physician to fore for the physician who applies for this program in that he no longer has to comply with that certification process of the others portions of this statute that the pla attacks which are discussed in the government's brief are as he indicated during the beginning of his argument is with regard to the individual doctors the individual doctors here and that are all forty the titian he was sent a request for evidence which he did not respond to a substantial period of time went by and the government sent him a notice indicating that his application was denied for abandonment there is no plaintiff to challenge the definition of physician and yet none the less even if this court is to look to that the regulations and the statutes reference specifically the department of health and human services definitions of shortage of health care professionals the department of health and hermann services looks to not federal doctors providing direct patient care within the area and that direct patient care that the department of health and human services looks to and authorizes its patient areas of internal medicine family practice general medicine pediatrics obstetrics and gynecology and psychiatry and those are the areas that the department of homeland security through the citizenship and immigration service incorporates into this statute with regard to plaintiff challenge for aggregate service the regulations require that the five years of service be conducted in a six year limitation how that can derive from the statute the statute provides for five years full time work what the agency was doing by allowing that five years to be complete in the six your time frame was given consideration to an individual physician who may have an injury and illness if it's a female physician they have a pregnancy they have to travel home for some reason that would break the service so the agency adopted  silent which the agency is permitted to do or alternatively if we're filling in we are adding a statute of limitations on a statute that doesn't contain a statute of limitations basically the agency is looking to serve the purpose of the statute by obtaining the medical care in the medically underserved regions now as opposed to years from now if the desire was not to have individual physicians work for a short period of time that statute speaks to full time employment it's looking to accomplish the goal of the statute within a reasonable period of time and that's how the agencies that the aggregate service requirement that the last two challenges that are made by the plaintiffs to this case deal with the effective date and the tracking dates the the agency through its regulations identified a part of me the statute affective on november fourteenth one thousand nine hundred nine the agency by setting the dates that it had asked compliance with the statute and also provides a recognition that there are petitions in the pipeline at the time of the statute became effective thus the statute becomes what the statute is affected anything that is pending the statute applies to with regard to any petitions that were filed before and not seek to avoid that denial and simply looked as though it didn't exist but to do that eliminates finality of agency decision it requires the agency has a certain number of resources that they can allocate to this and further it's requires the agency to balance you know those resources the statute does not provide for retroactivity there's certainly no language to that classic floodgates are going and if you lawyer anything that was filed before the statute should apply now that the statute exists despite the fact that there was a denial and in fact in order to adjust status and to get the benefit of the national interest waiver one must have been eligible for it in other words one must have had an approved time one forty and natural interest waiver the last challenge the comes to the statute and the regulations deals with a tracking the agency requires by regulation that the individual physician provide a notification one hundred twenty days into the program and one hundred twenty days before their service time is over the reason for that is simply to track the physicians to know that they have continued in the program there is nothing that prevents a doctor from dropping out of the program and and the notification is without c and does not provide any loss of service   under freedom to travel campaign where people wanted to go to cuba despite the fact that it was clear from the statutory scheme that they would have been denied permission to go to cuba that this court held that there was no necessity to even make an application in this case dr kass story even though he's a radiologist and clearly under the government's statute regulatory scheme specialist and can't qualify nevertheless went ahead and submitted a national interest waiver petition in that national and in the government's response to dr katz story they set a list of the different categories of primary care physicians and said we don't understand why you're applying your radiologists you're a specialist give us a regulatory explanation of why you qualify and at that if if if it had definitely he had had to leave the country one is if you can't if you can't it works differently with that form of labor certification but if you have an h one b status that your time is up and you're suit not being retroactive the statute specifically says that physicians who had a national interest waiver submitted on their behalf before november first nine ninety eight which is a full year before the enactment date of the stay scuse me of the statute are not subject to the five year medical practice requirement there are subject to a three year of medical practice requirement  and further so i mean that is clearly retroactive from the clear language of the statute also hits it's clear that the government used the language file they had the sentence before that said well for proof petitions before that before the statute was enacted there is no time period at all that they have to meet that for people that f had the national interest waivers filed for them i year before the statute took effect it would be a three year medical practice requirement but it didn't say anything about whether it had to be pending the date the statute was enacted this is a condition subsequent that was that added by the government agency playing the role of the legislature here and i think they got very confused about that