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Law360 (July 9, 2020, 8:39 PM EDT) -- A Syrian medical doctor filed suit in D.C. federal court on Thursday challenging the U.S. Department of Homeland Security's purported delay in processing his waiver request for an extension of his J-1 Exchange Visitor Visa, which he says he is requesting to continue treating COVID-19 patients.
Omar Tayeh says in his lawsuit that he is serving at Lincoln Hospital in the Bronx, which is affiliated with Weill Cornell Medicine in New York, and that his visa requires him to return to his home country for two years after completing his exchange program.
Tayeh said Lincoln is the second-busiest hospital amid the COVID-19 pandemic. He petitioned for a waiver of Rule 212(e) of his visa program requiring him to leave the country so he can work at a medical facility in New Hampshire, but U.S. Citizenship and Immigration Services has unlawfully delayed his application, he said.
"Plaintiff brings this action to compel the USCIS to finally adjudicate the pending applications as required by law," Tayeh said. "Plaintiff is committed to serve medical patients in an underserved area just as he served COVID-19 patients in New York City."
Tayeh's lawsuit claims violations of the Administrative Procedures Act because his application has been in administrative processing beyond a reasonable time period. He also alleges violations of the due process clause of the Fifth Amendment for violating his "right to fundamental fairness in administrative adjudication."
The lawsuit names as defendants the DHS, DHS acting Secretary Chad Wolf, the USCIS, USCIS acting Director Kenneth Cuccinelli, and the directors of the Vermont Service Center and the California Service Center of the USCIS.
Tayeh said he requested the waiver in November, but after clearing several hurdles, the application has been pending before the USCIS' California Service Center since April, as has an application for his spouse.
After filing a Congressional liaison assistance/expedite request with U.S. Senator Jeanne Shaheen, D-N.H., her office was informed in June that the holdup was due to a security check, according to the lawsuit.
Tayeh said the CSC issued a request for evidence on June 18 for the waiver approval notice, but has since refused to process the waiver.
"Despite numerous calls to USCIS and his attempts to prompt movement on the case, Omar Tayeh's applications have remained pending far longer than is reasonable," Tayeh said. "Plaintiff has also reached out to the USCIS ombudsman, but to no avail."
The UCSIS and counsel for Tayeh did not immediately respond to requests for comment.
Tayeh is represented by James O. Hacking III of Hacking Law Practice LLC.
Counsel for the government could not immediately be determined.
The case is Omar Tayeh v. U.S. Department of Homeland Security et al., case number 1:20-cv-01854, in the U.S. District Court for the District of Columbia.
--Editing by Kelly Duncan.
For a reprint of this article, please contact reprints@law360.com.
