Henry Ford Health employs 1,200 Canadians across the health system, including 800 nurses.
Henry Ford Health is taking on the feds.
The Detroit health system sued the nation’s top immigration officials after work visas of two of its Canadian employees were denied entry at the Detroit border last year and later their visas revoked, according to a lawsuit filed in U.S. District Court in Ann Arbor and obtained by Crain's.
Related: Pause on visa applications thwarting recruitment efforts
HFH alleges the federal government, specifically CBP at the Detroit-Windsor Tunnel, capriciously misinterpreted the rules governing TN work visas under the U.S. Mexico-Canada Act trade agreement to deny entry into the U.S. by the two employees.
The federal government, who responded to the lawsuit last week, claims the work visas were issued in error, despite six prior approvals for one HFH employee alone, dating back to 2009.
At issue is whether radiologic technologists, which both HFH employees are, qualify as an approved classification under the USMCA — HFH employs 1,200 Canadians, including 800 nurses, that cross the U.S., Canadian border under TN visas — and more importantly, why after so many years of approvals, the government decided they no longer did.
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HFH is bringing the case directly to the top of the U.S. immigration infrastructure, naming as defendants: U.S. Attorney General Merrick Garland; Alejandro Mayorkas, secretary of the U.S. Department of Homeland Security; Ur Mendoza Jaddou, director of Homeland Security and U.S. Citizenship and Immigration Services; Laura Zuchowski, director of the Vermont Service Center division of USCIS and Homeland Security; Troy Miller, acting commissioner of Homeland Security and U.S. Customs and Border Protection; Diane Sabatino, acting executive assistant commissioner for USCIS; Christopher Perry, the recently departed director of field operations in Detroit for USCIS; and Devin Chamberlain, port director in Detroit for USCIS.
“We don’t leave people behind,” said Patrick Irwin, vice president of human resources for HFH’s Detroit and Wyandotte hospitals. “While this only impacts two employees, we’re going to the mat for them. We have so many employees that cross that border. Tomorrow it could be a nurse or a physical therapist that can’t gain entry. We understand there are rules, but you can’t just up and change the rules with no warning. We have to stand up, because if not, it’s a slippery slope.”
TN visas allow for expedited work authorization in the country for Canadian and Mexican citizens per the trade treaty of the USMCA. TN visas are approved for workers in certain categories, usually in relation to whether there is a shortage of that employment category in the U.S.
There are roughly 62 USMCA TN visa categories covering jobs from economists to dentists to hotel managers. Henry Ford uses about eight or nine classifications, said Marc Topoleski, managing attorney at Ellis Porter and HFH’s immigration attorney on the case against the feds.
“The category of scientific technologists or technicians, that’s a category we’ve used for at least 15 years,” Topoleski said. “Nothing has changed in the treaty, nothing about our employees’ jobs duties or jobs have changed. We have no idea why they’ve revoked these visas. After multiple conversations with them (CBP), they are not being helpful. We have no choice but to go to court.”
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Topoleski is referencing longtime HFH employee, and Canadian, Tibor Hric, who has worked for HFH since 2009, when his first TN visa was approved to work as a radiologic technologist in Detroit.
Hric received his latest TN visa approval on April 15 last year, with status granted through April 30, 2026. However, Hric was denied entry into the U.S. at the Detroit-Windsor Tunnel on May 2, with CBP declaring he had not presented a valid visa. The border agents told Hric that his visa “appears to have been issued in error,” the lawsuit alleges.
A more than month-long back and forth between CBP and HFH’s attorneys resulted in U.S. Citizenship and Immigration Services revoking Hric’s visa, alleging that radiologic technologists do not qualify for a TN visa, noting a technologist must work in the fields of agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.
HFH alleges this new interpretation is “wholly inconsistent with (USCIS’) prior interpretation of this requirement, and CBP’s prior interpretation of this requirement, in all six of their previous approvals of Mr. Hric’s applications for TN status with the same employer, and in the same position, since 2009.”
HFH has fought for a return of status for Hric, including arguing radiologists apply under the TN category of medical physics. USCIS most recently denied Hric’s latest petition for a TN visa in late July, denying he works under a physics discipline.
“This new rule by which USCIS is seeking to utilize to adjudicate TN petition had not been published, promulgated, or otherwise made known to TN petitioners previousy,” the lawsuit reads.
In August, USCIS denied the TN visa renewal of Alex Lau, another Canadian HFH radiologic technologist, under the same principle, saying his previous TN visa approvals were an error.
“Due to the actions of defendants USCIS and CBP, plaintiff (HFH) has been unable to continue to employ Mr. Hric and Mr. Lau in the positions they had held since 2009 and 2017, respectively, and their absence has created critical staffing issues that have negatively impacted plaintiff’s ability to deliver patient care,” the lawsuit reads.
There is a global shortage of radiologists as imaging equipment becomes more and more prevalent in identifying more and more illnesses.
More than 80% of hospitals in the U.S. are reporting shortages in their radiology departments, according to a report in July from Imaging Technology News. In fact, the number of imaging requests grows by about 5% annually, but radiology residency only grows 2% annually, according to CDC data.
“These men work in a position that’s hard to recruit for and hard to fill,” Irwin said. “These people are doing hands-on care to Americans. The impact is restricting health care to Americans. I can’t believe the Biden Administration would be in support of this. This has to be a rogue decision.”
Read more: Henry Ford Health, Ascension Michigan to combine in $10.5 billion system
The U.S. attorney assigned to the case did not respond to an inquiry on the lawsuit.
Topoleski worries if these denials become more prevalent, it’ll push Canadians from seeking employment in the U.S., which could damage the communities like Windsor over the border.
HFH alone is the 11th-largest employer of residents from the Windosr-Essex region, he said.
For HFH, this battle is as much an exercise in commitment to its employees as much as it is a moral clash.
“Our employees watch us,” Irwin said. “They want the things you do and how you protect other employees. They look to see if you’re going to stand behind them or not. Our employees believe in us and we tell them we’re with them all the time. So we have to put up. How much does morale cost? They say no margin, no mission. But no people, no margin. You want a winning culture, win for your people. That’s what we intend to do.”
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