[Federal Register Volume 60, Number 63 (Monday, April 3, 1995)]
[Rules and Regulations]
[Pages 16785-16788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7922]
=======================================================================
-----------------------------------------------------------------------
UNITED STATES INFORMATION AGENCY
22 CFR Part 514
[Rulemaking No. 115]
Waiver of Two-Year Home-Country Physical Presence Requirement,
International Medical Graduates, Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: Section 220 of the Immigration and Nationality Technical
Corrections Act of 1994 (Pub. L. 103-416) amended Section 212(e) of the
Immigration and Nationality Act (8 U.S.C. 1182(e)) and added a new
subsection (k) to Section 214 of that Act (8 U.S.C. 1184) regarding
waiver of the two-year foreign residence requirement as it applies to
international medical graduates. This rulemaking amends the Exchange
Visitor Program regulations to reflect those legislative changes.
DATES: This interim final rule is effective April 3, 1995. Written
comments will be accepted until May 3, 1995. All written communications
received by the Agency on or before the closing date will be considered
by the Agency before action on a final rule is undertaken.
ADDRESSES: Comments regarding this rule should be addressed as follows:
United States Information Agency, Office of the General Counsel,
Rulemaking 115, 301 Fourth Street, S.W., Room 700, Washington, DC
20547.
FOR FURTHER INFORMATION CONTACT:
William G. Ohlhausen, Assistant General Counsel, United States
Information Agency, 301 Fourth Street, S.W., Washington, DC 20547;
telephone (202) 619-6972.
SUPPLEMENTARY INFORMATION: Section 220 of the Immigration and
Nationality Technical Corrections Act of 1994 (Pub. L. 103-416),
adopted in the closing days of the 103rd Congress, amended provisions
of the Immigration and Nationality Act which deal with the two-year
foreign residence requirement affecting international medical graduates
(also known as ``foreign medical graduates'' or ``FMGs'') who were
admitted to the United States on the J visa, or who acquired such
status after admission to the United States, and who are required to
return to the country of their nationality or last residence upon the
completion of their participation in an exchange visitor program.
The Immigration and Naturalization Service may grant a waiver of
the two-year home country physical presence requirement upon the
favorable recommendation of the Director of the United States
Information Agency. Prior to the recent amendment to Sections 212 and
214 of the Immigration and Nationality Act, there were three bases upon
which an alien who is a graduate of a medical school pursuing a program
in graduate medical education or training could seek a waiver of the
two-year foreign residence requirement. The first basis was the so-
called ``interested Government Agency'' or ``IGA'' waiver. Under that
basis, the Director of the United States Information Agency could
recommend a waiver to INS pursuant to the request of an ``interested
United States Government agency.'' [Immigration and Nationality Act, as
amended, section 212(e) (8 U.S.C. 1182(e); 22 C.F.R. 514.44(a)(2) and
(c).]
The other bases upon which a J visa foreign medical graduate could
seek a waiver of the two-year foreign residence requirement were to
apply to the Immigration and Naturalization Service for a waiver on the
grounds that the departure of the alien physician from the United
States would ``impose exceptional hardship upon the alien's spouse or
child (if such spouse or child is a citizen of the United States or
lawfully resident alien), or that the alien [[Page 16786]] cannot
return to the country of his nationality or last residence because he
would be subject to persecution on account of race, religion, or
political opinion.'' [Immigration and Nationality Act, as amended,
section 212(e) (8 U.S.C. 1182(e).] Additionally, all three bases for
seeking waiver required a finding by the Attorney General that the
waiver was in the public interest.
The enactment of the Immigration and Nationality Technical
Corrections Act of 1994 (Pub. L. 103-416) has now provided an
additional basis upon which an international medical graduate may seek
a waiver of the two-year home residence requirement. Section 220(a) of
that Act added a provision that authorizes a State Department of Public
Health or its equivalent to request the Director of USIA to recommend
that INS grant the waiver. However, in addition, the new law requires
that the government of the country to which the international medical
graduate is required to return must furnish the Director of the United
States Information Agency with a statement in writing that it has no
objection to such waiver, and the medical graduate must demonstrate
that he or she has a bona fide offer of full-employment and must agree
that he or she will begin employment within 90 days of receiving a
waiver, and must agree to continue to work, for a total of not less
than three years, at a health care facility in an area designated by
the Secretary of Health as having a shortage of health care
professionals. [Immigration and Nationality Act, as amended, section
214(k)(1) (8 U.S.C. 1184(k)(1).)
Upon the favorable recommendation of the Director of USIA, the
Attorney General may grant the waiver and change the medical graduate's
nonimmigrant status from J-1 to H(i)(B). If the international medical
graduate obtains a waiver under Public Law 103-416 and thereafter fails
to fulfill the terms of his or her employment contract with the health
care facility named in the waiver application, then he or she becomes
ineligible to apply for an immigrant visa, permanent residence, or any
other change of nonimmigrant status until the two-year foreign
residence requirement has been met. [Immigration and Nationality Act,
section 214(k)(2) (A) and (B). Each State is allotted no more than
twenty such waivers each fiscal year. The federal fiscal year commences
on October 1 and ends the following September 30. The term ``State''
includes the District of Columbia, Puerto Rico, Guam and the Virgin
Islands of the United States.
The role of the United States Information Agency under the recent
amendments to sections 212(e) and 214 of the Immigration and
Nationality Act is limited. Under the amendment to section 212(e), the
Commissioner of the Immigration and Naturalization Service will now
look to the Director of USIA for a recommendation on international
medical graduate waiver cases brought ``pursuant to the request of a
State Department of Public Health, or its equivalent.'' Section 212(e)
was also amended by adding language that makes it clear that waivers
requested by a State Department of Public Health, or its equivalent,
shall be subject to the requirements of the new Section 214(k).
Under new Section 214(k)(1)(A), the Attorney General will not grant
the waiver unless the country to which the international medical
graduate is contractually obligated to return furnishes the Director of
USIA with a statement in writing that it has no objection to such
waiver.
Reading amended Section 212(e) and new section 214(k) together, the
Agency views its role in implementing the statute as including the
following: (1) It is to be the recipient of State Department of Public
Health applications for waivers for foreign medical graduates who will
practice medicine in medically underserved areas; (2) it is to be the
recipient of ``no objection'' letters from the country to which the
applicant is contractually obligated to return; and (3) it is to review
the applications and no objection letters, determine whether they meet
the requirements of the two statutory sections, review the program,
policy, and foreign relations aspects of the case, and make a
recommendation to the Commissioner of the Immigration and
Naturalization Service as to whether the waiver should be granted.
Current regulations regarding requests for waiver made by an
interested United States Government agency require the requesting
agency to determine that the granting of the waiver would be in the
public interest. 22 C.F.R. 514.44(c). This Agency then reviews the
program, policy, and foreign relations aspects of the case and forwards
its recommendation to the Commissioner. 22 C.F.R. 514.44(c). The Agency
intends to follow the same practices with respect to requests for
waivers made under the recently amended section 212(e) and the new
section 214(k) of the Immigration and Nationality Act.
With respect to the no-objection letters, the Agency notes that the
new section 214(k)(1)(A) refers to ``an alien who is otherwise
contractually obligated to return to a foreign country * * *.''
(emphasis added.) That phrase ``otherwise contractually obligated'' is
not defined in the statute and there is no legislative history
preceding the enactment of the statute which would indicate the
specific intent of Congress in using that terminology. However, the
Agency believes, based upon the intent of Congress as gleaned from the
legislation as a whole, that the term ``otherwise contractually
obligated'' was not meant to have any special meaning, but rather is to
be given its ordinary meaning, viz., an obligation arising out of an
agreement. Foreign medical graduates are required by statute (Pub. L.
97-116) and regulation (8 C.F.R. 214.2(j)(2); INS Form I-644) to
certify annually that, upon the completion or termination of
participation in their medical education or training program, they will
return to their respective home countries. The Agency deems that
certification to be an agreement or contract that obligates the foreign
medical graduate to return to his or her home country. Moreover, in
almost all cases involving foreign medical graduates, the foreign
medical graduate has also given a written assurance to his or her home
government that he or she will return to that country upon completion
of training in the United States and will engage in the practice of
medicine in the area of specialization for which training is being
sought. In the view of the Agency, such assurances rise to the level of
a contractual obligation or agreement.
The amendment to Section 212(e) refers to ``a State Department of
Public Health, or its equivalent.'' Since enactment of the statute, the
Agency has received numerous requests for information from a variety of
agencies within a given State. In order to avoid confusion in the
processing of waiver applications and because of the numerical
limitations upon each State set forth in the new statute, this
rulemaking provides that each State designate one agency as its
``Department of Public Health, or equivalent'' for purposes of applying
for waivers under Public Law 103-416, and so notify USIA of the name,
address, and telephone number of that agency, and the name of the
person or persons who are authorized to sign the application for
waiver.
The No Objection Letter
Current regulations set forth the procedure for obtaining ``no
objection'' letters from the home country and the manner in which such
letters are to be sent to the Agency. 22 C.F.R. 514.44(d). With one
exception, this rulemaking provides for the same procedures to be
followed with respect to applications for waivers under Public Law 103-
416. In [[Page 16787]] order to avoid confusion with other applications
for waivers based on no objection from the home country (hitherto
unavailable to foreign medical graduates), the no objection letter
submitted under Public Law 103-416 should note clearly that the request
for the no objection letter was made pursuant to Public Law 103-416.
The Agency does not require that a no objection letter be of or on a
particular form. The following or similar language will suffice:
``Pursuant to Public Law 103-416, the Government of ________ has no
objection if (name and address of foreign medical graduate) does not
return to ________ to satisfy the two-year foreign residency
requirement of Section 212(e) of the Immigration and Nationality Act.''
The Application Package
The application for waiver of the two-year home country residence
requirement under the provisions of Public Law 103-416 is to originate
in the designated State Department of Public Health. USIA is not
planning to develop any new forms for such application. However the
application is to include the following: (1) A letter from the Director
of the designated State Department of Public Health which identifies
the foreign medical graduate and states, if so determined, that it is
in the public interest that a waiver of the two-year home residence
requirement be granted; (2) an employment contract between the alien
and the health care facility, which includes the name and address of
the specific and a specific geographic area or areas in which the
foreign medical graduate will practice medicine. The employment
contract shall be valid for at least three years; (3) evidence that the
areas of employment stipulated in the employment contract are in
geographic areas designated by the Secretary of Health and Human
Services as having a shortage of health care professionals; (4) a
statement by the foreign medical graduate agreeing to the contractual
requirements set forth in Section 214(k)(1) (B) and (C) of the
Immigration and Nationality Act; (5) copies of all forms IAP-66 issued
to the foreign medical graduate seeking the waiver; (6) a completed
data sheet, copies of which will be made available by the Agency to
each State Department of Public Health; and (7) because of the
numerical limitations on the approval of waivers under Public Law 103-
416 each application from a State Department of Public Health shall be
numbered sequentially. Should USIA not grant a favorable recommendation
on a given application, the State Department of Public Health will be
so notified and will be advised that the number may be used on another
application.
If a State Department of Public Health files in excess of twenty
applications at one time, the Agency will give priority to the first
twenty sequentially numbered applications.
Application Period Under Public Law 103-416
Section 220(c) of Public Law 103-416 states that ``The amendments
made by this section shall apply to aliens admitted to the United
States under section 101(a)(15)(J) of the Immigration and Nationality
Act, or acquiring such status after admission to the United States,
before, on, or after the date of enactment of this Act and before June
1, 1996.'' The Agency believes that the date of June 1, 1996 applies to
the status of the foreign medical graduate on that date and not to the
new waiver program itself. In other words, if the foreign medical
graduate was admitted to the United States on a J visa or acquired a J
visa prior to June 1, 1996 in order to pursue graduate medical
education or training, he or she would be eligible to apply for a
waiver under the provisions of Public Law 103-416 at any time in the
future.
Public Law 103-416 was enacted into law on October 25, 1994. Since
that date, USIA's Exchange Visitor Program office has received in
excess of 100 telephone calls and letters regarding the implementation
of the new law. One State Department of Public Health advised at the
time of its telephone call that it already had in hand some 400
applications for waiver sponsorship. Therefore, it is imperative that
the Agency promulgate implementing regulations as soon as possible.
This rulemaking is therefore being promulgated as an Interim Final
Rule, effective on the date it is published in the Federal Register.
Written comments on the Interim Final Rule will be accepted during the
thirty-day period following publication of the Interim Final Rule. At
the conclusion of the thirty-day comment period, the Agency will review
all comments and thereafter promulgate a final rule incorporating such
revisions as are appropriate.
Regulatory Analysis and Notices
The Agency invites comments regarding this interim final rule
notwithstanding the fact that it is under no legal requirement to do
so. The oversight and administration of the Exchange Visitor Program
are deemed to be foreign affairs functions of the United States
Government. The Administrative Procedure Act, 5 U.S.C. 553(a)(1),
specifically exempts foreign affairs functions from the rulemaking
requirements of the Act.
In accordance with 5 U.S.C. 605(b), the Agency certifies that this
rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not considered to be
a major rule within the meaning of section 1(b) of Executive Order
12291, nor does this rule have Federalism implications warranting the
preparation of a Federalism Assessment in accordance with Executive
Order 12612.
The information collection requirements contained in this rule have
been presented to the Office of Management and Budget for clearance
pursuant to the provisions of the Paperwork Reduction Act.
List of Subjects in 22 CFR Part 514
Cultural exchange programs, Reporting and recordkeeping
requirements.
Dated: March 27, 1995.
Les Jin,
General Counsel.
Accordingly, 22 CFR Part 514 is amended as follows:
PART 514--[AMENDED]
1. The authority citation for Part 514 is revised to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, 2451-2460; Reorganization Plan No. 2 of 1977, 3 CFR, 1977
Comp. p. 200; E.O. 12048 of March 27, 1978, 3 CFR, 1978 Comp. p.
168.
Section 514.44 is amended as follows:
Sec. 514.44 [Amended]
2. In paragraph (a)(2), by inserting ``(or in the case of an alien
who is a graduate of a medical school pursuing a program in graduate
medical education or training, pursuant to the request of a State
Department of Public Health, or its equivalent)'' after ``interested
United States Government agency''; and
3. In paragraph (a)(2), by inserting after the words ``public
interest'' the following: ``except that in the case of a waiver
requested by a State Department of Public Health, or its equivalent,
the waiver shall be subject to the requirements of section 214(k) of
the Immigration and Nationality Act (8 U.S.C. 1184)''; and
4. In paragraph (a)(3), by inserting the following at the end of
said paragraph: ``Notwithstanding the foregoing, an alien who is a
graduate of a medical school pursuing a program in medical education or
training may obtain a waiver of such two-year foreign residence
requirements if said alien meets the requirements of section 214(k) of
the Immigration and Nationality Act [[Page 16788]] (8 U.S.C. 1184) and
paragraphs (a) (2) and (e) of this section''; and
5. In paragraph (d)(3), by inserting the word ``solely'' after the
word ``waiver'', and by inserting the following at the end of said
paragraph: ``However, an alien who is a graduate of a medical school
pursuing a program in medical education or training may obtain a waiver
of such two-year foreign residence requirements if said alien meets the
requirements of section 214(k) of the Immigration and Nationality Act
(8 U.S.C. 1184) and paragraphs (a) (2) and (e) of this section''; and
6. By redesignating paragraphs (e), (f), and (g) as (f), (g), and
(h), respectively; and
7. By inserting a new paragraph (e) as follows:
Sec. 514.44 Two-year home-country physical presence requirement.
* * * * *
(e) Requests for waiver from a State Department of Public Health,
or its equivalent, on the basis of Public Law 103-416.
(1) Pursuant to Public Law 103-416, in the case of an alien who is
a graduate of a medical school pursuing a program in graduate medical
education or training, a request for a waiver of the two-year home-
country physical presence requirement may be made by a State Department
of Public Health, or its equivalent. Such waiver shall be subject to
the requirements of section 214(k) of the Immigration and Nationality
Act (8 U.S.C. 1184) and this Sec. 514.44.
(2) With respect to such waiver under Public Law 103-416, the
Director of the United States Information Agency is to be furnished
with a statement in writing that the country to which such alien is
required to return has no objection to such waiver. The no objection
statement shall be furnished to the Director in the manner and form set
forth in paragraph (d) of this section and, additionally, shall bear a
notation that it is being furnished pursuant to Public Law 103-416.
(3) The State Department of Public Health, or equivalent agency,
shall include in the waiver application the following:
(A) A completed ``Data Sheet.'' Copies of blank data sheets may be
obtained from the Agency's Exchange Visitor Program office.
(B) A letter from the Director of the designated State Department
of Public Health, or its equivalent, which identifies the foreign
medical graduate by name, country of nationality or last residence, and
date of birth, and states that it is in the public interest that a
waiver of the two-year home residence requirement be granted;
(C) An employment contract between the foreign medical graduate and
the health care facility named in the waiver application, to include
the name and address of the health care facility, and the specific
geographical area or areas in which the foreign medical graduate will
practice medicine. The employment contract shall include a statement by
the foreign medical graduate that he or she agrees to meet the
requirements set forth in Section 214(k) of the Immigration and
Nationality Act. The employment contract shall be valid for at least
three years and the geographical areas of employment shall only be in
areas, within the respective state, designated by the Secretary of
Health and Human Services as having a shortage of health care
professionals;
(D) Evidence establishing that the geographic area or areas in the
state in which the foreign medical graduate will practice medicine are
areas which have been designated by the Secretary of Health and Human
Services as having a shortage of health care professionals.
(E) Copies of all forms IAP-66 issued to the foreign medical
graduate seeking the waiver;
(F) A copy of the foreign medical graduate's curriculam vitae;
(G) A copy of the statement of no objection from the foreign
medical graduate's country of nationality or last residence; and,
(H) Because of the numerical limitations on the approval of waivers
under Public Law 103-416, i.e., no more than twenty waivers for each
State each fiscal year, each application from a State Department of
Public Health, or its equivalent, shall be numbered sequentially,
beginning on October 1 of each year.
(4) The Agency's Waiver Review Branch shall review the program,
policy, and foreign relations aspects of the case and forward its
recommendation to the Commissioner. Except as set forth in
Sec. 514.44(g)(4)(i), the recommendation of the Waiver Review Branch
shall constitute the recommendation of the Agency.
* * * * *
8. In newly designated paragraph (g)(4)(i), by inserting ``(or, in
the case of an alien who is a graduate of a medical school pursuing a
program in graduate medical education or training, pursuant to the
request of a State Department of Public Health, or its equivalent)''
after ``interested United States Government agencies.''
[FR Doc. 95-7922 Filed 3-31-95; 8:45 am]
BILLING CODE 8230-01-M