[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-569]


[[Page Unknown]]

[Federal Register: January 11, 1994]


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DEPARTMENT OF JUSTICE
8 CFR Part 214

[INS 1452-92]
RIN 1115-AC72

 

Temporary Alien Workers Seeking H-1B Classification Under the 
Immigration and Nationality Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule implements certain provisions of the 
Miscellaneous and Technical Immigration and Naturalization Amendments 
of 1991 (MTINA) by establishing petitioning procedures for H-1B 
nonimmigrants and new eligibility criteria for foreign physicians 
seeking employment in the medical professions in the United States. 
This rule contains the new procedures required by the legislation and 
makes Service policy consistent with the intent of Congress. This rule 
sets forth the new filing procedures and eligibility standards and 
clarifies for businesses, academic institutions, and the general public 
the requirements for classification and admission under section 
101(a)(15)(H) of the Immigration and Nationality Act (ACT).

EFFECTIVE DATE: January 11, 1994.

FOR FURTHER INFORMATION CONTACT:
John W. Brown, Senior Immigration Examiner, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street, NW., room 7215, 
Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), Public 
Law 101-649, November 29, 1990, dramatically altered the H-1B 
nonimmigrant classification. IMMACT, among other things, removed 
prominent aliens from the H-1B nonimmigrant classification and required 
prospective employers to obtain an approved labor condition application 
from the Department of Labor prior to the admission of the H-1B 
nonimmigrant into the United States.
    In response to concerns raised by a number of interested parties, 
Congress incorporated numerous provisions in the Miscellaneous and 
Technical Immigration and Naturalization Amendments of 1991, Public Law 
102-232, December 12, 1991, which amended some of the provisions 
created by IMMACT. Specifically, Public Law 102-232 amended the 
definition of an H-1B nonimmigrant alien by removing the requirement 
that the intending employer obtain an approved labor condition 
application prior to the alien's admission into the United States, 
amended the criteria which the Secretary of Labor could use in invoking 
the penalty provisions relating to misrepresentations and omissions on 
the labor condition application, and, lastly, addressed the issue of 
foreign physicians coming to the United States to perform services in 
the medical profession.
    On April 9, 1992, the Service published in the Federal Register at 
57 FR 12177, an interim rule with requests for comments to incorporate 
the changes contained in Public Law 102-232. Interested persons were 
invited to submit written comments on or before June 8, 1992.

Discussion of Comments on the Interim Regulations

    The Service received comments from sixteen individuals on the 
interim rule. Some of the commenters addressed more than one issue in 
their comments. A number of commenters offered suggestions and 
improvements for the final rule, many of which have been adopted in the 
final rule. The following discussion addresses the issues raised, 
provides the Service's position on the issues, and, indicates the 
revisions adopted in the final rule based on the public's comments.

Labor Condition Application--Sec. 214.2(h)(4)(i)(B)(1)

    Prior to the passage of Public Law 102-232, petitioners in H-1B 
cases were required to submit a copy of an approved labor condition 
application with the petition. Public Law 102-232 amended this language 
by requiring only that petitioners attach a certification from the 
Secretary of Labor indicating that the petitioner has filed a labor 
condition application with the Secretary of Labor. The interim rule 
contained language reflecting this amendment to the statute.
    One commenter suggested that a petitioner could meet this statutory 
requirement by merely submitting a copy of the labor condition 
application without waiting for the Department of Labor to certify the 
labor condition application. However, submitting a copy of the labor 
condition application is not sufficient to show that the application 
has been filed. Only when the application has been certified can the 
Service be assured that the petitioner has complied with the filing 
requirement. Therefore, the Service did not adopt this recommendation.
    One commenter noted that IMMACT imposed a number of penalties on 
employers who failed to meet certain conditions of the labor condition 
application process. Section 212(n)(2)(C)(ii) of the Act states that in 
those situations the Attorney General shall not approve petitions filed 
by the offending employer under section 204 or 214(c) of the Act for a 
period of one year. The commenter noted that Sec. 214.2(h)(4)(i)(B)(5) 
of the interim regulation indicated only that the Attorney General 
shall not approve petitions under the H-1B category. In response to 
this comment the final rule will be amended to indicate that this 
provision applies to petitions filed under both sections 204 and 214(c) 
of the Act as required by statute.

Return Transportation Provision--Sec. 214.2(h)(4)(iii)(E) and 
Sec. 214.2(h)(6)(vi)(E)

    One commenter suggested that petitioners in H-1B and H-2B cases 
should be required to post a bond in order to prove to the Service that 
the return transportation requirement will be met. It is the opinion of 
the Service that the statute and regulations clearly state the 
requirement that a petitioner in these instances is responsible for the 
alien beneficiary's return transportation. The filing of the petition 
is sufficient assurance to the Service that the petitioner will comply 
with this requirement.

Criteria and Documentary Requirements for Physicians--
Sec. 214.2(h)(4)(viii)

    Prior to the passage of IMMACT, alien graduates of foreign medical 
schools were excluded from classification as H-1B nonimmigrants unless 
they were coming to the United States pursuant to an invitation from a 
public or nonprofit private educational or research institution or 
agency to teach or conduct research, or both, at or for such 
institution or agency. These physicians were not authorized to perform 
direct patient care unless it was incidental to the teaching or 
research. This restriction, however, was not contained in IMMACT, 
thereby allowing graduates of foreign medical schools to perform direct 
patient care in the United States.
    Public Law 102-232 addressed the issue of foreign physicians coming 
to the United States to perform services in the medical profession. The 
legislation provided that these aliens could obtain H-1B classification 
in either of two ways.
    First (mirroring the pre-IMMACT statutory language), an alien may 
be accorded H-1B classification if the alien is coming to the United 
States pursuant to an invitation from a public or nonprofit private 
educational or research institution or agency to teach or conduct 
research, or both, at or for such institution or agency.
    Second, an alien may be accorded H-1B classification if he or she 
has passed the Federation Licensing Examination (FLEX) or an equivalent 
examination as determined by the Secretary of Health and Human 
Services. Eligibility under this criterion also requires a 
demonstration that the alien has competency in oral and written English 
or that the alien has graduated from a school of medicine accredited by 
a body or bodies approved for that purpose by the Secretary of 
Education.
    In the preamble to the interim rule, it was stated that there was 
no distinction between alien physicians educated in the United States 
and those educated abroad and that both had to pass the Federation 
Licensing Examination (FLEX) in order to be classified as an H-1B 
nonimmigrant in order to perform direct patient care.
    Three commenters stated that the FLEX requirement should not be 
applicable to alien graduates of United States medical schools since, 
over the previous decade, the Service has consistently permitted these 
aliens to engage in direct patient care under the H-1B classification. 
These commenters also noted that graduates of United States medical 
schools are not normally required to take the FLEX examination as part 
of their training and licensing requirements.
    Subsequent to the publication of the interim rule, the Service 
altered its position on this issue, reaffirming that the FLEX 
requirement did not apply to aliens educated at United States medical 
schools. This position now will be codified in the final rule. It 
should be noted, however, that the FLEX requirement does apply to 
aliens educated in foreign medical schools, including schools in 
Canada. The final rule will be amended to reflect the Service's present 
position.
    Two commenters noted that aliens of national or international 
renown in the field of medicine, pursuant to section 101(a)(41) of the 
Act, are not considered graduates of a medical school and should be 
exempt for the FLEX requirement. The Service agrees with this comment 
and the final rule will be amended to indicate that aliens of national 
or international renown in the field of medicine are exempt from the 
FLEX requirement as well as the other requirements set forth in section 
212(j)(2) of the Act. They are, however, required to meet the licensure 
requirements for the state of intended employment.

Equivalency to the FLEX

    Public Law 102-232 provides that alien physicians who wish to 
perform patient care in the United States must, among other things, 
pass the FLEX examination or an equivalent examination as determined by 
the Secretary of Health and Human Services. By notice published on 
September 16, 1992 at 57 FR 42755, the Secretary of Health and Human 
Services designated Parts I, II, and III of the National Board of 
Medical Examiners certifying examinations and the Steps 1, 2, and 3 
examinations of the United States Medical Licensing Examinations 
program as equivalent to the FLEX.
    Six commenters suggested that the Licentiate of the Medical Council 
of Canada (LMCC), the Canadian medical licensing procedure, or a State 
license should also be determined to be equivalent to the FLEX. A 
determination that the LMCC or a state license is equivalent to the 
FLEX is outside the scope of the Service's authority.

Competency in the English Language

    Public Law 102-232 also requires that graduates of medical schools 
coming to the United States to perform services in the medical 
professions must demonstrate competency in oral and written English or 
be a graduate of a school of medicine accredited by a body or bodies 
approved for that purpose by the Secretary of Education. The interim 
rule contains the requirement that a petitioner may demonstrate English 
competency by submitting evidence that the alien has passed the English 
test given by the Educational Commission for Foreign Medical Graduates 
(ECFMG). The interim regulation did not contain any additional tests or 
mechanisms to establish competency in the English language but it was 
stated in the preamble to the interim rule that the Service would 
consider other suggestions to demonstrate competency.
    Two commenters suggested that the Test of English as a Foreign 
Language (TOEFL) should be recognized as an alternate test to establish 
English competency. Since the results of the TOEFL are reported as a 
raw score which must be interpreted by the entity reviewing the score, 
and the administrators of the test have not established a passing grade 
for the test, the Service cannot adopt this suggestion since it does 
not have the expertise or resources to interpret this test.
    Two commenters also suggested that the Service recognize that 
graduates of medical schools located in an English-speaking country in 
which the language of instruction is also English have competency in 
the English language. Since the statutory language already addresses 
the issue of language competency in relation to graduation from certain 
universities, the adoption of this suggestion would be in conflict with 
the statutory language.

Licensure

    The interim rule requires that a petition for a physician coming to 
the United States to perform services in the medical profession must be 
accompanied by evidence that the physician has a license or 
authorization required by the State of intended employment, if the 
state requires such license or authorization. This language was adopted 
to ensure that at the time the petition was filed the physician and met 
the regulatory requirements relating to the practice of medicine in the 
state of intended employment. The regulation also recognizes that, in 
certain instances, a state may not require a physician to obtain an 
actual medical license in order to perform the duties of a particular 
position.
    Two commenters suggested that the regulations of the state of 
intended employment should dictate which type of license, if any, 
should be required by the Service. This suggested regulatory change is 
unnecessary since it is already provided for in the language of the 
interim rule at Sec. 214.2(h)(4)(viii)(A)(1).
    One commenter also noted that certain physicians employer by the 
United States government, such as the Veterans Administration, are not 
required to possess a license issued by the state of intended 
employment hut merely require a license from any state. The final rule 
has been amended to accommodate this situation.
    One commenter suggested that an alien physician should not be 
required to obtain a medical license if the alien is not coming to the 
United States to perform patient care. As written, the interim rule 
requires that licensure must be obtained only in those situations where 
the alien beneficiary will be performing clinical care. An alien 
physician coming to fill a position which does not normally require 
licensure, e.g., medical research, would not be required to obtain a 
license. Thus, this suggestion need not be adopted.

Approval and Validity of Petitions--Sec. 214.2(h)(9)(iii)(B)

    The initial approval of an H-1B petition is currently limited to 
three years. One commenter suggested that H-1B petitions should be 
approved for the validity period of the supporting labor condition 
application, not to exceed six years. The Service does not deem it 
appropriate to consider extending the initial validity period of H-1B 
petitions without first soliciting public comment on the issue. This 
issue will be addressed in a future proposed rule.
    In accordance with 5 U.S.C. 605(b), the Commissioner of the 
Immigration and Naturalization Service certifies that this rule does 
not have a significant adverse economic impact on a substantial number 
of small entities. This rule merely clarifies provisions of the MTINA 
which establish certain new petitioning procedures for H-1B 
nonimmigrants and new eligibility criteria for foreign physicians 
seeking employment in the medical profession in this country, and 
therefore has a de minimus economic impact on small entities. This rule 
is not considered to be significant within section 3(f) of E.O. 12866, 
nor does this rule have Federalism implications warranting the 
preparation of a Federalism Assessment in accordance with E.O. 12612.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, 
Organization and functions (Government agencies).

    Accordingly, the Interim Rule amending 8 CFR part 214 which was 
published at 57 FR 12177-12179 on April 9, 1992, is adopted as a final 
rule with the following changes:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1221, 1281, 
1282; 8 CFR part 2.

    2. Section 214.2 is amended by:
    a. Revising paragraph (h)(1)(ii)(B)(1);
    b. Revising paragraph (h)(4)(i)(B)(5);
    c. Revising paragraph (h)(4)(viii)(A)(1);
    d. Revising paragraph (h)(4)(viii)(B)(2); and
    e. Adding paragraph (h)(4)(viii)(C) to read as follows:


Sec. 214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (1) * * *
    (ii) * * *
    (B) * * *
    (1) To perform services in a specialty occupation (except 
registered nurses, agricultural workers, and aliens described in 
section 101(a) (15) (O) and (P) of the Act) described in section 
214(i)(1) of the Act, that meets the requirements of section 214(i)(2) 
of the Act, and for whom the Secretary of Labor has determined and 
certified to the Attorney General that the prospective employer has 
filed a labor condition application under section 212(n)(1) of the Act;
* * * * *
    (4) * * *
    (i) * * *
    (B) * * *
    (5) If the Secretary of Labor notifies the Service that the 
petitioning employer has failed to meet a condition of paragraph (B) of 
section 212(n)(1) of the Act, has substantially failed to meet a 
condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has 
willfully failed to meet a condition of paragraph (A) of section 
212(n)(1) of the Act, or has misrepresented any material fact in the 
application, the Service shall not approve petitions filed with respect 
to that employer under section 204 or 214(c) of the Act for a period of 
at least one year from the date of receipt of such notice.
* * * * *
    (viii) * * *
    (A) * * *
    (1) Has a license or other authorization required by the state of 
intended employment to practice medicine, or is exempt by law 
therefrom, if the physician will perform direct patient care and the 
state requires the license or authorization, and
* * * * *
    (B) * * *
    (2) The alien has passed the Federation Licensing Examination (or 
an equivalent examination as determined by the Secretary of Health and 
Human Services) or is a graduate of a United States medical school; and
    (i) Has competency in oral and written English which shall be 
demonstrated by the passage of the English language proficiency test 
given by the Educational Commission for Foreign Medical Graduates; or
    (ii) Is a graduate of a school of medicine accredited by a body or 
bodies approved for that purpose by the Secretary of Education.
    (C) Exception for physicians of national or international renown. A 
physician who is a graduate of a medical school in a foreign state and 
who is of national or international renown in the field of medicine is 
exempt from the requirements of paragraph (h)(4)(viii)(B) of this 
section.
* * * * *


Sec. 214.2  [Amended]

    3. In Sec. 214.2, paragraph (h)(2)(i)(B) is amended by removing the 
last sentence.

    Dated: January 6, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-569 Filed 1-10-94; 8:45 am]
BILLING CODE 4410-10-M