[Federal Register Volume 59, Number 134 (Thursday, July 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17009]


[[Page Unknown]]

[Federal Register: July 14, 1994]


                                                   VOL. 59, NO. 134

                                            Thursday, July 14, 1994

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1654-94]
RIN 1115-AD66

 

Temporary Alien Workers Seeking H Classification for the Purpose 
of Obtaining Graduate Medical Education or Training

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service (Service) regulations with regards to the treatment of certain 
foreign medical graduates seeking nonimmigrant classification under the 
H-1B classification as amended by the Miscellaneous and Technical 
Immigration and Naturalization Amendments of 1991 (MTINA). This rule 
will prohibit a foreign medical graduate from seeking H-1B 
classification for the purpose of taking a medical residency in the 
United States. It will also modify the eligibility standards for 
foreign medical graduates and clarify for businesses and the general 
public the requirements for medical graduates' classification and 
admission.

DATES: Written comments must be submitted on or before September 12, 
1994.

ADDRESSES: Please submit written comments, in triplicate, to the 
Records Systems Division, Director, Policy Directives and Instructions 
Branch, Immigration and Naturalization Service, 425 I Street, NW., room 
5307, Washington, DC 20536. To ensure proper handling please reference 
the INS number 1654-94 on your correspondence.

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: Prior to the enactment of the Immigration 
Act of 1990 (IMMACT), Public Law 101-649, with certain limited 
exceptions, graduates of foreign medical schools seeking to come to the 
United States to perform services in the medical professions could 
obtain H-1B classification only if they were coming 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 an institution or agency. This requirement was deleted by Public 
Law 101-649 which allowed for the admission of foreign medical 
graduates under the H-1B nonimmigrant classification to perform any and 
all services, including direct patient care, in the medical 
professions.

    The Miscellaneous and Technical Immigration and Naturalization 
Amendments of 1991, Public Law 102-232, December 12, 1991, established, 
among other things, new criteria for the admission of foreign educated 
physicians coming to the United States to perform services in the 
medical professions. Public Law 102-232 amended section 212(j)(2) of 
the Act to provide that these aliens could obtain H-1B classification 
in either of two ways as follows:
    First, (mirroring the pre-IMMACT language), an alien can 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.
    Since the enactment of MTINA, a number of questions have been 
raised concerning the legality of graduates of foreign medical schools 
taking graduate medical education or training, also known as 
residencies or internships, as H-1B nonimmigrant aliens. It has been 
argued that a medical residency constitutes ``services in the medical 
professions'' since a portion of the residency involves providing 
direct patient care. It has also been argued that a medical residency 
meets the definition of the term ``specialty occupation'' as contained 
in section 214(i)(1) of the Act since the position requires the 
theoretical and practical application of a body of highly specialized 
knowledge, and a bachelor's or higher degree in the specific specialty 
is a minimum requirement for entry into the occupation.
    It is the opinion of the Service that Congress did not intend the 
H-1B nonimmigrant classification to be utilized by graduates of foreign 
medical schools coming to the United States to undertake medical 
residencies or otherwise receive graduate medical education or 
training. The Service believes that graduates of medical schools coming 
to the United States to take medical residencies or otherwise receive 
graduate medical education or training must seek classification as J-1 
nonimmigrant aliens.
    The rationale behind this opinion requires an examination of the 
prior legislation in this area. Congress enacted the Health 
Professionals Education Assistance Act of 1976 (HPEAA), Public Law 94-
484, in response to a number of problems with foreign medical graduates 
in the United States. This legislation established the J-1 
classification as the sole vehicle for graduates of medical schools to 
obtain graduate medical education or training in the United States, 
which clearly includes medical residencies. See sections 101(a)(15)(J) 
and 212(j)(1) of the Act; see also pre-IMMACT section 101(a)(15)(H)(i) 
of the Act. Section 212(j)(1) of the Act describes the various 
requirements for foreign medical graduates coming to the United States 
to receive graduate medical education or training. Although sections 
303(a)(5) (A) and (B) of MTINA provided an avenue for foreign medical 
graduates to enter the United States in H-1B status to perform services 
in the medical professions by amending sections 101(a)(15)(H)(i)(b) and 
212(j)(2) of the Act, MTINA did not alter the requirements for graduate 
medical education or training contained in section 212(j)(1) of the 
Act. It is our opinion that Congress would not place in juxtaposition 
two such clearly different statutory provisions as section 212(j)(1) 
and section 212(j)(2) of the Act if it intended the H-1B and J-1 
classifications to overlap with respect to foreign medical graduates 
seeking graduate medical education or training.
    Nothing in the legislative history of either IMMACT of MTINA 
indicates that Congress intended graduates of medical schools to obtain 
graduate medical education or training under the H-1B classification. 
In the absence of clear legislative language to the contrary, it is the 
opinion of the Service that graduates of foreign medical schools must 
utilize the J-1 classification to undertake medical residencies. 
Therefore, those aliens who were previously accorded H-1B 
classification in order to take a medical residency will be required to 
seek a change of nonimmigrant classification to that of the J-1 
nonimmigrant alien.
    This rule proposes to amend paragraph (h)(2)(ii) by removing the 
last two sentences of the paragraph. The change will allow a petitioner 
to file a single petition for multiple beneficiaries even when the 
beneficiaries on the petition will be applying for visas at more than 
one consulate or port-of-entry. Under the prior regulation, the Service 
required separate petitions for the beneficiaries where the aliens 
desired to apply for nonimmigrant visas at different consulates or 
where the alien beneficiaries were going to seek entry at more than one 
port-of-entry. This proposed revision will save petitioners the time 
and expense of filing multiple petitions for a group of aliens since, 
under the proposed rule, only a single petition will be required. The 
Service will, of course, notify each consular post or port-of-entry 
listed on the petition of the approval of the petition. The other 
requirements of the paragraph, i.e., that the aliens will be performing 
the same service or receiving the same training, for the same period of 
time and in the same location, have not been changed.
    This rule also proposes to amend paragraph (h)(13)(iv), which 
discusses the limitations on admission for H-2B and H-3 nonimmigrant 
aliens, by adding a sentence differentiating between an H-3 alien 
trainee and an H-3 participant in a ``special education exchange 
visitor program.'' As contained in the previous regulation, any H-3 
alien who had spent 18 months in the United States as an H or L 
nonimmigrant alien could not seek extension, change status, or be 
readmitted to the United States unless the alien had spent 6 months 
outside the United States. This paragraph is inconsistent with 
paragraph (h)(9)(iii)(D)(1) which provides that an H-3 petition for an 
alien trainee shall be valid for a period of two years.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and by approving it certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. The regulation merely clarifies certain provisions of 
the MTINA relating to physicians desiring to take medical residencies 
in this country and modifies certain filing procedures for petitions to 
reduce filing fees.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulation proposed herein will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has addressed this rule in light of the criteria in 
Executive Order 12606 and has determined that it will have no effect on 
family well-being.

List of Subjects in 8 CFR Part 214

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

    Accordingly, part 214 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

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)(2)(ii);
    b. Adding paragraph (h)(4)(viii)(D); and by
    c. Revising paragraph (h)(13)(iv), to read as follows:


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

* * * * *
    (h) * * *
    (2) * * *
    (ii) Multiple beneficiaries. More than one beneficiary may be 
included in an H-2A, H-2B, or H-3 petition if the beneficiaries will be 
performing the same service, or receiving the same training, for the 
same period of time, and in the same location.
* * * * *
    (4) * * *
    (viii) * * *
    (D) Aliens coming to the United States to receive graduate medical 
education or training. Aliens coming to the United States to receive 
graduate medical education or training are not eligible for H-1B 
classification. Such aliens must seek classification pursuant to 
section 101(a)(15)(J) of the Act.
* * * * *
    (13) * * *
    (iv) H-2B and H-3 limitation on admission. An H-2B alien who has 
spent three years in the United States under section 101(a)(15) (H) 
and/or (L) of the Act; an H-3 alien participant in a special education 
program who has spent 18 months in the United States under section 
101(a)(15) (H) and/or (L) of the Act; and an H-3 alien trainee who has 
spent 24 months in the United States under section 101(a)(15) (H) and/
or (L) of the Act may not seek extension, change status, or be 
readmitted to the United States under section 101(a)(15) (H) and/or (L) 
of the Act unless the alien has resided and been physically present 
outside the United States for the immediate prior six months.
* * * * *
    Dated: June 9, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-17009 Filed 7-13-94; 8:45 am]
BILLING CODE 4410-10-M