Doctor Ejected at Border Fights Sudden Policy Change

(CN) – Accusing the Department of Homeland Security of fumbling its own rules, a hospital that sits just across Lake Ontario from Canada claims in a federal complaint that U.S. border agents improperly held one of its doctors to visa requirements from which he is exempt.

Represented by Hake & Schmitt attorney Brian Schmitt, the Unity Hospital of Rochester brought its lawsuit on Oct. 3 complaint in U.S. District Court for the Western District of New York.

A subsidiary of Rochester General Hospital, Unity says it successfully petitioned U.S. Citizenship and Immigration Services last year to confer H-1B visa status on Milan Atanackovic when it hired the dual citizen of Canada and Serbia for an opening.

The complaint describes this as fairly typical for physicians who are Canadian nationals because “Canadians are visa exempt by regulation.”

Some such physicians have commuted back and forth from Canada to the United States on a daily basis, where the physician was working in the United States and fulfilling the two-year foreign residence requirement in the evening by returning to Canada,” the complaint states.

Atanackovic, who was subject to the foreign-residence requirement because he first entered the United States on a J-1 visa to study medicine, says he was admitted to the United States without issue, at various ports of entry, 13 times between Sept. 2, 2016, and Jan. 6, 2017.

The unsuccessful attempt occurred at the Peace Bridge on Jan. 11.

Though he explained to the border officer that a J-1 waiver was not required for his admission, the officer refused to let Atanackovic back into the United States where he lived with his wife and infant son — a green card holder and a U.S. citizen by birth, respectively.

“The officer told him that his fellow officer made a mistake in admitting him in H-1B status on Sept. 2, 2016,” the complaint states.

Reason went out the window.

“If everyone goes through a red light, are you going to go through a red light?” the agent chided Atanackovic, according to the complaint. “This is what happened; they were all let in incorrectly, you all went through the red light, but you got caught.”

Atanackovic, who is a co-plaintiff to the complaint along with his wife and child, says the border agents then confiscated his I-94. He was unable to return to the United States until Feb. 5 when his attorneys were able to secure a one-week parole to let Atanackovic attend a surgery being performed on his 18-month-old child and collect his belongings.

“CBP’s unlawful actions caused Dr. Atanackovic to abandon over 227 patients and take a job with a different employer in a completely different practice environment,” the complaint states.

Though his new employers at Rochester General secured H-1B admission again for Atanackovic, the doctor notes that he “is now required to work in an underserved urban area for a period of three years at two federally qualified health centers identified in his HHS waiver.”

Atanackovic meanwhile remains deprived of his original job at Unity where more than 227 patients had to be reshuffled to other practitioners.

The disruption to Atanackovic’s career aside, the hospitals note that CBP’s irrational policy change poses difficulties for them as well as the employers of a number of visa-exempt Canadian nationals.

“Disallowing visa-exempt Canadian physicians from entering the United States will cause a loss in revenue and the inability to properly staff their facilities,” the complaint states. “This will in turn result in the delay and/or denial of medical care to thousands of patients in these regions.”

Though the CBP has evidently changed its internal policies and standards, the complaint emphasizes that the relevant statutes and regulations remain unchanged, “and there has been no public announcement of any such change.”

Together with Atanackovic and his family, the hospitals seek declaratory relief, alleging abuse of discretion and violation of the Administrative Procedure Act. 

Hake & Schmitt, which represents the plaintiffs, is based in New Windsor, Maryland.

Representatives for the four government officials named as defendants have not returned requests for comment. The defendants are U.S. Department of Homeland Security’s Acting Secretary Elaine Duke, Acting CBP Commissioner Kevin McAleenan, CBP director of Buffalo field operations Rose Brophy and Attorney General Jefferson Sessions.

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