[Federal Register Volume 60, Number 96 (Thursday, May 18, 1995)]
[Rules and Regulations]
[Pages 26676-26683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12272]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 212, 245, and 248
[INS No. 1688-95]
RIN 1115-AD89
Waiver of the Two-Year Home Country Physical Presence Requirement
for Certain Foreign Medical Graduates
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations by allowing certain foreign medical graduates who
entered the United States in J-1 status, or who acquired J-1 status
after arrival in the United States, to obtain a waiver of the 2-year
home country residence and physical presence requirement under section
212(e)(iii) of the Immigration and Nationality Act (Act) pursuant to a
request by a State Department of Public Health, or its equivalent. The
waiver is intended to permit these foreign medical graduates to work at
a health care facility in an area designated by the Secretary, Health
and Human Services (HHS), as having a shortage of health care
professionals (``HHS-designated shortage area''). This interim rule
also contains provisions which will permit these foreign medical
graduates to change their nonimmigrant status in the United States from
J-1 exchange visitor to H-1B specialty occupation worker.
DATES: This interim rule is effective May 18, 1995. Written comments
must be received on or before July 17, 1995.
ADDRESSES: Please submit written comments, in triplicate, to the
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 INS number 1688-95
on your correspondence. Comments are available for public inspection at
this location by calling (202) 514-3048 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT:
Sophia Cox, Senior Adjudications Officer, Adjudications Division,
Immigration and Naturalization Service, 425 I Street NW., Room 3214,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
Under section 212(e) of the Act, certain J-1 exchange visitors (and
their J-2 dependent spouse and children) are subject to a 2-year home
country residence and physical presence requirement (the ``2-year
requirement''). Exchange visitors (and dependents) who are subject to
this requirement must reside and be physically present in their country
of nationality or last residence abroad (``home'' country) for an
aggregate of at least 2 years following departure from the United
States. J-1/J-2 exchange visitors who are subject to the 2-year
requirement are not allowed to change their nonimmigrant status to, or
be admitted to the United States under the H (temporary worker or
trainee) or L (intracompany transferee) nonimmigrant categories, or
acquire lawful permanent resident status, unless they have complied
with this requirement or have been granted a waiver thereof.
The following categories of exchange visitors (and their
accompanying spouse and children in dependent J-2 status) are subject
to the 2-year requirement: (a) Those whose J-1 program was financed in
whole or in part by an agency of the U.S. Government, or by the
government of their ``home'' country; (b) those whose field of
specialized knowledge or skill, as indicated on Form IAP-66
(Certificate of Eligibility), is required in their home country; and
(c) those who entered the United States in J-1 status (or who acquired
J-1 status subsequent to arrival in the United States) to receive
graduate medical education or training.
Under section 212(e) of the Act, a waiver of the 2-year requirement
may be granted by the Service upon the favorable recommendation of the
Director of the United States Information Agency (USIA). Waivers can be
obtained on the basis of: (a) Exceptional hardship to the applicant's
U.S. citizen or permanent resident [[Page 26677]] spouse or children;
(b) persecution on account of race, religion, or political opinion; (c)
a ``no objection'' statement issued by the applicant's ``home''
country; or (d) a request made to USIA by an interested U.S. Government
agency to recommend a waiver to the Service, because the applicant's
work is deemed to serve the public interest. By statute, in the case of
foreign medical graduates who entered the United States to receive
graduate medical education or training (and accompanying J-2
dependents), a ``no objection'' statement does not constitute a basis
for USIA to recommend a waiver to the Service. Therefore, even if a
``no objection'' statement on behalf of such a foreign medical graduate
has been issued, the Service is statutorily required to deny the waiver
application, if such a statement forms the only basis for the waiver
request.
A substantial number of foreign medical graduates pursue waivers of
the 2-year requirement through requests by an interested U.S.
Government agency. Prior to the enactment of section 220 of the
Immigration and Nationality Technical Corrections Act of 1994 (1994
Technical Corrections Act), Pub. L. 103-416, 108 Stat. 4310, 4319-4320,
dated October 25, 1994, only Federal Government agencies were
considered to be an ``interested United States Government agency''
eligible to submit a waiver request to USIA on behalf of a J-1 exchange
visitor. Because State governments were not permitted to act as
interested government agencies, they were required to solicit the
assistance of an appropriate Federal agency. Section 212(e)(iii) of the
Act, as amended by section 220(b) of the 1994 Technical Corrections
Act, now permits State Departments of Public Health, or their
equivalent, to submit waiver requests for foreign medical graduates
directly to USIA, provided that certain conditions have been met, as
explained below.
As noted, under section 212(e) of the Act, the Service may not
approve the applicant's waiver request unless the Director of the USIA
has issued a favorable waiver recommendation. If USIA issues a
favorable waiver recommendation, it notifies the Service thereof.
Section 212(e) of the Act permits, but does not require, the Attorney
General to grant the waiver pursuant to a favorable USIA
recommendation. On the other hand, if USIA issues an unfavorable waiver
recommendation, the Service must deny the waiver application. The
Service's decision to deny the application may not be appealed, if the
denial is based on lack of a favorable USIA waiver recommendation.
Section 212(e) waivers are valid only for those exchange programs
indicated in the waiver request. Any subsequent J program extension or
program transfer may re-subject the exchange visitor (and his or her
dependents) to the 2-year requirement.
Under current procedures, an application form is not required when
the waiver application is based on an interested U.S. Government agency
request or a no objection statement. Similarly, a form will not be
required to apply for a waiver based on a request by a State Department
of Public Health. The Service is in the process of developing an
omnibus form to be used for all waiver applications, including waivers
of the 2-year requirement. It should be noted that the burden rests on
the applicant to establish eligibility for a waiver of the 2-year
requirement. In certain cases, therefore, the Service may require other
documentation from the applicant besides the favorable USIA
recommendation to fully assess his or her waiver eligibility.
After the Service approves an application for a waiver of the 2-
year requirement, the J-1 exchange visitor may seek H nonimmigrant
status in order to engage in temporary employment for the organization
or entity named in the waiver application. Foreign medical graduates
who wish to work temporarily in the Unites States once a waiver of the
2-year requirement has been granted may seek H-1B classification as a
specialty occupation worker. An alien may obtain H-1B status either
through the simultaneous filing of an H-1B petition by the prospective
employer and a change of status application by the alien, if the alien
is in the United States, or through the filing of an H-1B petition
alone and the alien subsequently obtaining the visa at a consular post
abroad. Change of status applications are governed by section 248 of
the Act. To request a change of nonimmigrant status from J-1 to H-1B, a
change of status application must be filed simultaneously with the H-1B
nonimmigrant visa petition, if the applicant is eligible. Once the H-1B
petition and change of status application are approved, the alien will
be permitted to remain in the United States and commence temporary
employment with the employer or organization named in the approved H-1B
petition.
As 8 CFR 248.2(c) currently reads, foreign medical graduates (and
their dependents) who entered the United States on J-1 visas (or who
acquired J-1 status after admission) to pursue graduate medical
education or training are ineligible to apply for change of status
under section 248 of the Act, even if a waiver of the 2-year
requirement has been granted. This interim regulation revises 8 CFR
248.2(c) to conform with section 220 of the 1994 Technical Corrections
Act. Accordingly, this interim regulation provides that foreign medical
graduates who received a waiver of the 2-year requirement pursuant to a
request by a State Department of Public Health, or its equivalent, may
apply for change of status from J-1 to H-1B, if they other wise satisfy
the change of status criteria found under section 248 of the Act.
Public Law 103-416
Section 220 of the 1994 Technical Corrections Act, enacted on
October 25, 1994, permits the Service to grant a waiver of the 2-year
requirement to a limited number of foreign medical graduates who have
received a bona fide offer of full-time employment and who agree to
practice medicine at a health care facility located in an HHS-
designated shortage area. Any foreign medical graduate who is subject
to the 2-year requirement, and who meets the eligibility criteria, may
apply for a waiver under Pub. L. 103-416, regardless of whether he or
she is physically present in the United States.
To be eligible for the waiver, the foreign medical graduate must
enter into an employment contract to practice medicine full-time for at
least 3 years at a health care facility located in the HHS-designated
shortage area, and must agree to commence such employment within 90
days of receipt of the waiver. The Service may grant the waiver only if
the Department of Public Health, or its equivalent, of the State where
the foreign medical graduate will be employed, submits a formal request
to USIA for a waiver recommendation, and USIA submits a favorable
waiver recommendation to the Service. Although the State Department of
Public Health, or its equivalent, must request the waiver on behalf of
the foreign medical graduate, the health care facility at which the
foreign medical graduate will work need not actually be owned or
operated by the State.
The Service notes that section 220 of Pub. L. 103-416 does not
expressly waive the 2-year requirement for the accompanying spouse or
children of the foreign medical graduate. Longstanding Service policy,
however, permits J-1 exchange visitors to include their J-2 dependent
spouse and children in the waiver application. Consequently, a foreign
medical graduate seeking a waiver of the 2-year requirement under
section 220 of Pub. L. 103-416 shall be [[Page 26678]] permitted to
include his or her accompanying J-2 spouse and children in the waiver
application.
Foreign Medical Graduate
In the context of this interim rule, a foreign medical graduate
refers specifically to a foreign national who has graduated from a
medical school outside of the United States, and who acquired J-1
status to pursue graduate medical education or training in the United
States. Foreign medical graduates seeking J-1 classification to pursue
graduate medical education or training in the United States are subject
to strict requirements set forth in section 212(j)(1) of the Act, and
are subject to the 2-year requirement.
State Department of Public Health, or its Equivalent
Section 220 of Pub. L. 103-416 amends section 212(e)(iii) of the
Act by permitting State Departments of Public Health (or their
equivalent), in addition to U.S. Federal Government agencies, to submit
requests for waiver recommendations directly to USIA on behalf of
foreign medical graduates. Section 101(a)(36) of the Act defines the
term ``State'' to include the District of Columbia, Puerto Rico, Guam,
and the U.S. Virgin Islands, in addition to the 50 states. The same
definition will apply to the term ``State'' in this rule. Further, it
is the opinion of the Service that the statutory term ``State
Department of Public Health, or its equivalent'' means the State agency
or department that is responsible for public health issues, regardless
of what the actual name of that agency or department is under State
law.
Restrictions Imposed on the Waiver and the Change of Status Application
Section 214(k) of the Act, as added by section 220 of Pub. L. 103-
416, imposes restrictions on waivers of the 2-year requirement for
foreign medical graduates, when the application is based on a request
by a State Department of Public Health, or its equivalent. By imposing
conditions under section 214(k) of the Act, Congress manifested its
intent that waivers of the 2-year requirement be granted only under
strictly limited and controlled circumstances.
No objection statements. Section 214(k)(1)(A) of the Act provides
that ``in the case of an alien who is otherwise contractually obligated
to return to a foreign country, the government of such country (must)
furnish ( ) the Director of the United States Information Agency with a
statement in writing that it has no objection to the waiver.'' The
foreign medical graduate seeking the waiver is responsible for ensuring
that the ``no objection'' statement is provided directly to USIA. This
additional requirement applies only when the foreign medical graduate
seeks a waiver of the 2-year requirement pursuant to a request by a
State Department of Public Health (or its equivalent). USIA addresses
the question of what constitutes a contractual obligation in the
preamble to its interim rule amending 22 CFR 514.44(e)(2), which was
published in the Federal Register on April 3, 1995, at 60 FR 16785-
16788.
Employment contracts. Section 214(k)(1)(B) of the Act provides that
the Service may grant a waiver of the 2-year requirement based on a
request by a State Department of Public Health only if the foreign
medical graduate demonstrates a bona fide offer of full-time employment
at a health facility and agrees to begin such employment within 90 days
of receipt of the waiver. Section 214(k)(1)(B) of the Act also provides
that the foreign medical graduate must agree to continue working at the
health care facility named in the employment contract for at least 3
years. Such employment must be in accordance with the provisions of
section 214(k)(2) of the Act. The USIA's implementing regulations at 22
CFR 514.44(e)(3)(B) therefore provide that the State Department of
Public Health is required to submit the actual contract between the
alien and the health care facility at the time the request for the
favorable recommendation is made.
HHS-designated shortage areas. Section 214(k)(1)(C) of the Act
provides that the foreign medical graduate must agree to practice
medicine in accordance with section 214(k)(2) of the Act for at least 3
years ``only in the geographic area or areas which are designated by
the Secretary of Health and Human Services as having a shortage of
health care professionals.'' Since the Service is bound by HHS'
determination of what constitutes a ``geographic area or areas * * *
having a shortage of health care professionals,'' the request of a
State Department of Public Health (or its equivalent), standing alone,
cannot be deemed sufficient to meet his statutory requirement. The
waiver application must be accompanied by evidence establishing that
the geographic area or areas in which the foreign medical graduate will
practice medicine are in HHS-designated shortage areas.
Numerical limitations on waivers under Pub. L. 103-416. Section
214(k)(1)(D) of the Act limits to 20-per-state the number of waivers
the Service may grant under Pub. L. 103-416 each fiscal year.
Consequently, if the Director of USIA issues a favorable waiver
recommendation under Pub. L. 103-416, but the State requesting the
waiver already has exhausted its annual waiver allotment, the Service
is statutorily required to deny the waiver application. Accordingly,
this rule provides that no appeal shall lie where the basis for denial
is that the State has already been granted 20 waivers for that fiscal
year.
Completion of the required 3-year employment contract as an H-1B
nonimmigrant and change of nonimmigrant status from J-1 to H-1B. The
restrictions imposed by Congress under section 214(k)(1) and (2) of the
Act were intended to ensure that waivers of the 2-year requirement
under Pub. L. 103-416 are granted only under strictly limited and
controlled circumstances. These restrictions were also intended to
ensure that foreign medical graduates who receive such a waiver
actually provide health care services to those living HHS-designated
shortage ares.
Under section 248(2) of the Act, a foreign medical graduate who
came to the United States in J classification or acquired J
classification in order to receive graduate medical education or
training would normally be prohibited from filing an application for
change of status. Section 214(k)(2)(A) of the Act, as added by section
220 of Pub. L. 103-416, however, provides that ``notwithstanding
section 248(2), the Attorney General may change the status of an alien
that qualifies under this subsection and section 212(e) to that of an
alien described in section 101(a)(15)(i)(b).'' Section 214(k)(2) of the
Act, as added by section 220 of Pub. L. 103-416 also states that no
foreign medical graduate who has been granted a waiver and a change of
nonimmigrant status from J-1 to H-1B, and who has failed to complete
the 3-year employment contract with the sponsoring health care
facility, shall be eligible to apply for an immigrant visa, for
permanent residence, or for change of status to any other nonimmigrant
category, until it has been established that he or she has resided and
been physically present in his or her home country for an aggregate of
2 years following departure from the United States. Thus, section
212(k)(2) of the Act allows the foreign medical graduate to apply for
change of nonimmigrant status from J-1, only to H-1B upon approval of
the waiver, and also stipulates that a foreign medical graduate who
fails to fulfill the required 3-year employment contract again becomes
subject to the 2-year requirement. Taken together, these two provisions
indicate that Congress [[Page 26679]] did not intend to permit the
foreign medical graduate to proceed from J-1 status directly to lawful
permanent resident status upon approval of the waiver.
Based on the above, the Service is of the opinion that, in enacting
section 214(k) of the Act, Congress manifested its clear intent to
require all foreign medical graduates, including those seeking to
adjust their status or immigrate to this country, as well as those
immediately changing status from J-1 to H-1B, to fulfill the 3-year
employment contract or become subject to the 2-year requirement. To
enable the Service to maintain control over the foreign medical
graduate's stay in the United States in the manner intended by
Congress, this interim rule provides that the foreign medical graduate
must actually fulfill the contract with the health care facility named
in the waiver application prior to obtaining permanent residence, or
any nonimmigrant status other than H-1B. Accordingly, this interim
regulation provides that a foreign medical graduate who received a
waiver of the 2-year requirement under Pub. L. 103-416 may not apply
for a change of status to another nonimmigrant category, for an
immigrant visa, or for status as a lawful permanent resident prior to
completing the required 3-year employment contract as an H-1B
nonimmigrant with the health care facility named in the waiver
application.
Eligibility to apply for change of status from J-1 to H-1B. While
section 214(k)(2)(A) of the Act allows foreign medical graduates who
received a waiver under Pub. L. 103-416 to apply for change of status
from J-1 to H-1B (and their dependents from J-2 to H-4), it does not
excuse the late filing of the application. Foreign medical graduates
who have been granted a waiver of the 2-year requirement under Pub. L.
103-416, must be in valid J status when the change of status
application is filed. Service regulations at 8 CFR 214.2(j)(1)(ii)
provide that J-1 exchange visitors may be admitted to the United States
for the duration of the exchange program, as noted on Form IAP-66, and
an additional 30 days for travel. While J-1 exchange visitors are not
authorized to work during this 30-day grace period (see
Sec. 274a.12(b)(11)), they are considered to be ``in status'' for
purposes of applying for change of status under section 248 of the Act.
To prevent the foreign medical graduate from falling out of lawful
nonimmigrant status, the Service encourages the State Department of
Public Health to allow ample time for processing the waiver and
subsequent filing and processing of the H-1B petition and change of
status application. Foreign medical graduates who received a waiver
under section 220 of Pub. L. 103-416 and whose J nonimmigrant stay has
expired, or who have engaged in unauthorized employment, are ineligible
to apply for change of status under section 248 of the Act. Such
persons would not be precluded, however, from procuring an H-1B visa at
a U.S. consular post abroad and seeking readmission to the United
States in H-1B status to commence employment with the sponsoring health
care facility.
Numerical limitations imposed on the issuance of H-1B visas.
Although section 214(k)(2)(A) of the Act eases the change of status
restrictions under section 248(2) of the Act, it does not ease the
annual numerical limitations imposed on the H-1B specialty worker
category under section 214(g)(1)(A) of the Act. Consequently, the
Service would not be prohibited from granting a waiver of the 2-year
requirement under Pub. L. 103-416, but would be statutorily prohibited
from according H-1B status to the foreign medical graduate, if the
annual numerical limitations imposed on the issuance of H-1B visas
under section 214(g)(1)(A) of the Act have been reached.
Control measures to be implemented by the Service. As noted,
waivers of the 2-year requirement pursuant to Pub. L. 103-416 are based
on the premise that the foreign medical graduate's work at a health
care facility will assist States in coping with health care shortages.
To ensure compliance with section 214(k) of the Act, and to ensure that
the public receives the intended benefit, the Service will implement
the following measures.
The Form I-797 (Notice of Action) (including I-797A and I-797B)
currently used to notify the alien of the approved waiver and/or change
of status from J-1 to H-1B, if applicable, will explicitly state the
terms and conditions of the waiver and change of status. To facilitate
issuance of the H-1B visa abroad, or admission as an H-1B nonimmigrant
at the port-of-entry in cases where the foreign medical graduate is
ineligible or chooses not to apply for change of status, the H-1B
approval notice shall indicate that he or she has obtained the
necessary waiver under Pub. L. 103-416. Such notification serves two
purposes. It ensures that the foreign medical graduate is made fully
aware of the terms and conditions of his or her waiver and change of
status. It also alerts the Service officer or State Health Department
that special conditions have been placed on the alien's nonimmigrant
status, thereby enabling the officer to take whatever steps are
necessary to ensure that the alien's file is noted accordingly. When
the foreign medical graduate's Form I-797 is later presented in support
of an application for another benefit, such as an amended H-1B
petition, a new H-1B petition for a different employer, or an
adjustment of status application, the adjudicating officer will again
be alerted to the special conditions that have been placed on the
alien's nonimmigrant status. As a result, the Service will be able to
verify whether the terms and conditions imposed under section 214(k) of
the Act have been satisfied. These control measures are reflected in
this interim rule at 8 CFR 212.7(c)(9)(ii).
Inability To Fulfill the Three-Year Employment Contract Due to
Extenuating Circumstances
New section 214(k)(1)(B) of the Act grants the Attorney General
discretion to excuse early termination of employment upon determining
that extenuating circumstances so justify. The statute provides that
extenuating circumstances may include the closure of the health care
facility or hardship to the alien.
In determining whether to excuse the foreign medical graduate's
early termination of employment with the health care facility named in
the waiver application, the Service will carefully consider whether,
based on all the facts before it, excusing such early termination would
be consistent with the purpose of the statute--provision of health care
services for at least a 3-year period of time in an HHS-designated
shortage area. Closure of the facility, for example, could, under
certain circumstances, warrant excusing failure to fulfill the 3-year
employment contract, provided that the foreign medical graduate can
establish that he or she has procured employment for the balance of the
3-year period with another health care facility in an HHS-designated
shortage area. Similarly, an alien who claims that his or her inability
to fulfill the 3-year employment contract is due to hardship shall also
be required to submit evidence of new employment for another health
care facility in an HHS-designated shortage area. A foreign medical
graduate who seeks to establish extenuating circumstances on the basis
of hardship also must submit evidence that the hardship was caused by
unforeseen circumstances beyond his or her control. In short, before
the Service will consider excusing the foreign medical graduate's early
termination of [[Page 26680]] the 3-year employment contract with the
health care facility named in the waiver application due to extenuating
circumstances, the alien must submit an employment contract for the
balance of this period with another health care facility in an HHS-
designated shortage area. See section 214(k)(3) of the Act (the foreign
medical graduate may only work in HHS-designated shortage areas during
the required 3-year period of employment following approval of the
waiver).
Changes in Employment During the Required Three-Year Period Following
Approval of the Waiver
Any material change in the alien's H-1B employment must be reported
to the Service by filing either an amended H-1B petition indicating any
changes in the terms and conditions of the alien's current H-1B
employment, or by filing a new petition if the alien seeks to change H-
1B employers, in the manner generally required under current
regulations at 8 CFR 214.2(h)(2)(i) (D) and (E), and 8 CFR
214.2(h)(11).
An amended H-1B petition for a foreign medical graduate who has
been granted a waiver of the 2-year requirement under Pub. L. 103-416
shall be accompanied by evidence that he or she will continue
practicing medicine in an HHS-designated shortage area for the health
care facility named in the waiver application and in the original H-1B
petition.
A foreign medical graduate who has been granted a waiver of the 2-
year requirement under Pub. L. 103-416, who has not fulfilled the 3-
year employment contract with the health care facility named in the
waiver application, and who seeks to change H-1B employers due to
extenuating circumstances or hardship is responsible for ensuring that
the new health care facility files an H-1B petition. In such cases, the
new petition shall be accompanied by a copy of Form I-797 (or I-797A or
I-797B, as appropriate) relating to the original H-1B petition and an
explanation from the alien, with supporting evidence, establishing that
extenuating circumstances or hardship necessitate a change in
employment. The new H-1B petition shall also be accompanied by an
employment contract showing that the alien will practice medicine at
the health care facility for the balance of the required 3-year period,
and evidence that the geographic area or areas of intended employment
designated in the new H-1B petition are in an HHS-designated shortage
area.
The Service may consult with the Secretary of HHS to verify whether
the area of intended employment specified in the new H-1B petition is
in fact located in an HHS-designated shortage area. Further, in
exercising its statutory discretion to excuse an alien's failure to
complete the requisite 3-year employment contract, the Service, if it
deems appropriate, may consult with USIA, the State Department of
Public Health which initiated the waiver request, and the health care
facility named in the original waiver application.
If, in the exercise of its discretion, the Service determines that
extenuating circumstances or hardship exist, that employment will
continue at a health care facility in an HHS-designated shortage area,
and that both the new petitioner and the beneficiary have otherwise
satisfied the H-1B eligibility criteria enumerated under 8 CFR
214.2(h), the new petition may be approved, and the foreign medical
graduate may be permitted to serve the balance of the 3-year employment
period at the health care facility named in the new H-1B petition.
Effect of Failure To Abide by the Terms and Conditions of the Waiver
Granted Under Pub. L. 103-416
Section 241(a)(1)(C)(i) of the Act provides for the deportation of
any alien admitted as a nonimmigrant who fails to: (a) Maintain the
nonimmigrant status under which he or she was admitted; (b) fails to
maintain the nonimmigrant status to which he or she was changed under
section 248 of the Act; or (c) fails to comply with the conditions of
any such nonimmigrant status. J-1 foreign medical graduates who do not
fulfill the 3-year employment contract for the health care facility
named in the waiver application (unless the Attorney General has
determined there are extenuating circumstances or hardship to the
alien), who do not work in HHS-designated shortage areas, or who change
employment without permission from the Service, will be deemed not to
be maintaining their nonimmigrant status or complying with the terms
and conditions imposed upon the waiver and change of status
application, and will therefore be deportable under section
241(a)(1)(C)(i) of the Act.
Application Period
Section 220(c) of Pub. L. 103-416 states that the statutory
amendments to section 212(e) of the Act shall apply to aliens admitted
to the United states under section 101(a)(15)(J) of the Act, or who
acquire J status after admission to the Unites States before, on, or
after the date of enactment, and before June 1, 1996. Consistent with
Congress' intent to relieve health care shortages in HHS-designated
shortage areas, the Service interprets this provision to mean that any
foreign medical graduate who entered the United States in J
nonimmigrant status, or who acquired J status upon arrival to pursue
graduate medical education or training, before June 1, 1996, is
eligible to apply for a waiver of the 2-year requirement pursuant to
section 220 of Pub. L. 103-416, and for subsequent change of
nonimmigrant status to H-1B. Further, if the foreign medical graduate
acquired J status before June 1, 1996, in order to pursue graduate
medical education or training, he or she will be eligible to request a
section 220 waiver, even if the training is completed after June 1,
1996.
Foreign medical graduates who acquire J nonimmigrant status to
pursue graduate medical education or training on or after June 1, 1996,
however, will not be eligible to apply for benefits under Pub. L. 103-
416, even if they wish to practice medicine in an HHS-designated
shortage area. Those foreign medical graduates may, however, pursue a
non-section 220 waiver under section 212(e) of the Act.
Good Cause Exception
This interim rule is effective on publication in the Federal
Register although the Service invites post-promulgation comments and
will address any such comments in a final rule. For the following
reasons, the Service finds that good cause exists for adopting this
rule without the prior notice and comment period ordinarily required by
5 U.S.C. 553. The provisions of Pub. L. 103-416, which provide a great
public benefit, are already in effect. Adopting this rule without prior
notice and comment allows foreign medical graduates whose J status is
about to expire to apply for the waiver as soon as possible, thereby
avoiding potential interruption of their lawful status during the
normal notice and comment period. The rule also enables State
Departments of Public Health to seek immediately the assistance of
certain foreign medical graduates to ease local medical care shortages.
Adopting this rule as an interim rule therefore benefits both foreign
medical graduates and those who live in HHS-designated shortage areas.
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 this
interim rule will not have a significant [[Page 26681]] economic impact
on a substantial number of small entities because of the following
factors. This interim rule will have limited or no effect on small
entities, because only 20 waivers are authorized per State annually to
foreign medical graduates under Pub. L. 103-416.
Executive Order 12866
This interim 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 Review, and the Office of Management and Budget has
waived its review process under section 6(a)(3)(A).
Exetutive Order 12612
This interim rule will not have substantial direct effect 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. Section 220 of Pub. L. 103-416 merely
enables the States, in addition to Federal Government agencies, to
submit waiver requests for foreign medical graduates directly to USIA,
while preserving the authority of the Federal Government to grant or
deny such waiver requests. The ability of Federal Government agencies
to continue submitting waiver requests to USIA is not changed or
curtailed in any way by this rule. Therefore, in accordance with
Executive Order 12612, it has been determined that this interim 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 this interim rule has been assessed in light of the
criteria in Executive Order 12606, and has determined that the
regulation would enhance family well-being by allowing certain
dependent
J-2 family members to obtain derivative H-4 status in the United States
based on the waiver granted to the principal physician and the
principal's change of status from J-1 to H-1B, without the need to
travel abroad to procure the nonimmigrant visa and seek re-admission to
the United States. Permitting such changes of non-immigrant status
allows the principal physician's dependent spouse and children to: (a)
Accompany him or her while employed temporarily as an H-1B
nonimmigrant; and (b) remain in this country on a permanent basis
should he or she subsequently apply for, and be granted approval of,
adjustment of status to that of a lawful permanent resident. This rule
also enhances family well-being by allowing families in HHS-designated
shortage areas to get much needed medical treatment and care.
Paperwork Reduction Act
The information collection requirements contained in this interim
rule have been cleared by the Office of Management and Budget Under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections are contained in 8 CFR 299.5, Display of Control Numbers.
List of Subjects
8 CFR Part 212
Administrative practices and procedure, Aliens, Immigration,
passports and visa, Reporting and recordkeeping requirements.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and Recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
2. In Sec. 212.7, paragraphs (c)(9) and (c)(10) are redesignated as
paragraphs (c)(10) and (c)(11), respectively, and a new paragraph
(c)(9) and (c)(11), respectively, and a new paragraph (c)(9) is added
to read as follows:
Sec. 212.7 Waiver of certain grounds of excludability.
* * * * *
(c) * * *
(9) Waivers under Pub. L. 103-416 based on a request by a State
Department of Public Health (or equivalent). In accordance with section
220 of Pub. L. 103-416, an alien admitted to the United States as a
nonimmigrant under section 101(a)(15)(J) of the Act, or who acquired
status under section 101(a)(15)(J) of the Act after admission to the
United States, to participate in an exchange program of graduate
medical education or training (as of January 9, 1977), may apply for a
waiver of the 2-year home country residence and physical presence
requirement (the ``2-year requirement'') under section 212(e)(iii) of
the Act based on a request by a State Department of Pubic Health, or
its equivalent. To initiate the application for a waiver under Pub. L.
103-416, the Department of Public Health, or its equivalent, or the
State in which the foreign medical graduate seeks to practice medicine,
must request the Director of USIA to recommend a waiver to the Service.
The waiver may be granted only if the Director of USIA provides the
Service with a favorable waiver recommendation. Only the Service,
however, may grant or deny the waiver application. If granted, such a
waiver shall be subject to the terms and conditions imposed under
section 214(k) of the Act. Although the alien is not required to submit
a separate waiver application to the Service, the burden rests on the
alien to establish eligibility for the waiver. If the Service approves
a waiver request made under Pub. L. 103-416, the foreign medical
graduate (and accompanying dependents) may apply for change of
nonimmigrant status, from J-1 to H-1B and, in the case of dependents of
such a foreign medical graduate, from J-2 to H-4. Aliens receiving
waivers under section 220 of Pub. L. 103-416 are subject, in all cases,
to the provisions of section 214(g)(1)(A) of the Act.
(i) Eligiblity criteria. J-1 foreign medical graduates (with
accompanying J-2 dependents) are eligible to apply for a waiver of the
2-year requirement under Pub. L. 103-416 based on a request by a State
Department of Public Health (or its equivalent) if:
(A) They were admitted to the United States under section
101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June
1, 1996, to pursue graduate medical education or training in the United
States.
(B) They have entered into a bona fide, full-time employment
contract for 3 years to practice medicine at a health care facility
located in an area or areas designated by the Secretary of Health and
Human Services as having a shortage of health care professionals
(``HHS-designated shortage area'');
(C) They agree to commence employment within 90 days of receipt of
the waiver under this section and agree to practice medicine for 3
years at the facility named in the waiver application and only in HHS-
designated shortage areas. The health care facility named in the waiver
application may be operated by: [[Page 26682]]
(1) An agency of the Government of the United States or of the
State in which it is located; or
(2) A charitable, educational, or other not-for-profit
organization; or
(3) Private medical practitioners.
(D) The Department of Public Health, or its equivalent, in the
State where the health care facility is located has requested the
Director, USIA, to recommend the waiver, and the Director, USIA,
submits a favorable waiver recommendation to the Service; and
(E) Approval of the waiver will not cause the number of waivers
granted pursuant to Pub. L. 103-416 and this section to foreign medical
graduates who will practice medicine in the same state to exceed 20
during the current fiscal year.
(ii) Decision on waivers under Pub. L. 103-416 and notification to
the alien.--(A) Approval. If the Director of USIA submits a favorable
waiver recommendation on behalf of a foreign medical graduate pursuant
to Pub. L. 103-416, and the Service grants the waiver, the alien shall
be notified of the approval on Form I-797 (or I-797A or I-797B, as
appropriate). The approval notice shall clearly state the terms and
conditions imposed on the waiver, and the Service's records shall be
noted accordingly.
(B) Denial. If the Director of USIA issues a favorable waiver
recommendation under Pub. L. 103-416 and the Service denies the waiver,
the alien shall be notified of the decision and of the right to appeal
under 8 CFR part 103. However, no appeal shall lie where the basis for
denial is that the number of waivers granted to the State in which the
foreign medical graduate will be employed would exceed 20 for that
fiscal year.
(iii) Conditions. The foreign medical graduate must agree to
commence employment for the health care facility specified in the
waiver application within 90 days of receipt of the waiver under Pub.
L. 103-416. The foreign medical graduate may only fulfill the requisite
3-year employment contract as an H-1B nonimmigrant. A foreign medical
graduate who receives a waiver under Pub. L. 103-416 based on a request
by a State Department of Public Health (or equivalent), and changes his
or her nonimmigrant classification from J-1 to H-1B, may not apply for
permanent residence or for any other change of nonimmigrant
classification unless he or she has fulfilled the 3-year employment
contract with the health care facility and in the specified HHS-
designated shortage area named in the waiver application.
(iv) Failure to fulfill the three-year employment contract due to
extenuating circumstances. A foreign medical graduate who fails to meet
the terms and conditions imposed on the waiver under section 214(k) of
the Act and this paragraph will once again become subject to the 2-year
requirement under section 212(e) of the Act.
Under section 214(k)(1)(B) of the Act, however, the Service, in the
exercise of discretion, may excuse early termination of the foreign
medical graduate's 3-year period of employment with the health care
facility named in the waiver application due to extenuating
circumstances. Extenuating circumstances may include, but are not
limited to, closure of the health care facility or hardship to the
alien. In determining whether to excuse such early termination of
employment, the Service shall base its decision on the specific facts
of each case. In all cases, the burden of establishing eligibility for
a favorable exercise of discretion rests with the foreign medical
graduate. Depending on the circumstances, closure of the health care
facility named in the waiver application may, but need not, be
considered an extenuating circumstance excusing early termination of
employment. Under no circumstances will a foreign medical graduate be
eligible to apply for change of status to another nonimmigrant
category, for an immigrant visa or for status as a lawful permanent
resident prior to completing the requisite 3-year period of employment
for a health care facility located in an HHS-designated shortage area.
(v) Required evidence. A foreign medical graduate who seeks to have
early termination of employment excused due to extenuating
circumstances shall submit documentary evidence establishing such a
claim. In all cases, the foreign medical graduate shall submit an
employment contract with another health care facility located in an
HHS-designated shortage area for the balance of the required 3-year
period of employment. A foreign medical graduate claiming extenuating
circumstances based on hardship shall also submit evidence establishing
that such hardship was caused by unforeseen circumstances beyond his or
her control. A foreign medical graduate claiming extenuating
circumstances based on closure of the health care facility named in the
waiver application shall also submit evidence that the facility has
closed or is about to be closed.
(vi) Notification requirements. A J-1 foreign medical graduate who
has been granted a waiver of the 2-year requirement pursuant to Pub. L.
103-416, is required to comply with the terms and conditions specified
in section 214(k) of the Act and the implementing regulations in this
section. If the foreign medical graduate subsequently applies for and
receives H-1B status, he or she must also comply with the terms and
conditions of that nonimmigrant status. Such compliance shall also
include notifying the Service of any material change in the terms and
conditions of the H-1B employment, by filing either an amended or a new
H-1B petition, as required, under Secs. 214.2(h)(2)(i)(D),
214.2(h)(2)(i)(E), and 214.2(h)(11) of this chapter.
(A) Amended H-1B petitions. The health care facility named in the
waiver application and H-1B petition shall file an amended H-1B
petition, as required under Sec. 214.2(h)(2)(i)(E) of this chapter, if
there are any material changes in the terms and conditions of the
beneficiary's employment or eligibility as specified in the waiver
application filed under Pub. L. 103-416 and in the subsequent H-1B
petition. In such a case, an amended H-1B petition shall be accompanied
by evidence that the alien will continue practicing medicine with the
original employer in an HHS-designated shortage area.
(B) New H-1B petitions. A health care facility seeking to employ a
foreign medical graduate who has been granted a waiver under Pub. L.
103-416 (prior to the time the alien has completed his or her 3-year
contract with the facility named in the waiver application and original
H-1B petition), shall file a new H-1B petition with the Service, as
required under Secs. 214.2(h)(2)(i) (D) and (E) of this chapter.
Although a new waiver application need not be filed, the new H-1B
petition shall be accompanied by the documentary evidence generally
required under Sec. 214.2(h) of this chapter, and the following
additional documents:
(1) A copy of Form I-797 (and/or I-797A and I-797B) relating to the
waiver and nonimmigrant H status granted under Pub. L. 103-416;
(2) An explanation from the foreign medical graduate, with
supporting evidence, establishing that extenuating circumstances
necessitate a change in employment;
(3) An employment contract establishing that the foreign medical
graduate will practice medicine at the health care facility named in
the new H-1B petition for the balance of the required 3-year period;
and
(4) Evidence that the geographic area or areas of intended
employment indicated in the new H-1B petition are in HHS-designated
shortage areas. [[Page 26683]]
(C) Review of amended and new H-1B petitions for foreign medical
graduates granted waivers under Pub. L. 103-416 and who seek to have
early termination of employment excused due to extenuating
circumstances.--(1) Amended H-1B petitions. The waiver granted under
Pub. L. 103-416 may be affirmed, and the amended H-1B petition may be
approved, if the petitioning health care facility establishes that the
foreign medical graduate otherwise remains eligible for H-1B
classification and that he or she will continue practicing medicine in
an HHS-designated shortage area.
(2) New H-1B petitions. The Service shall review a new H-1B
petition filed on behalf of a foreign medical graduate who has not yet
fulfilled the required 3-year period of employment with the health care
facility named in the waiver application and in the original H-1B
petition to determine whether extenuating circumstances exist which
warrant a change in employment, and whether the waiver granted under
Pub. L. 103-416 should be affirmed. In conducting such a review, the
Service shall determine whether the foreign medical graduate will
continue practicing medicine in an HHS-designated shortage area, and
whether the new H-1B petitioner and the foreign medical graduate have
satisfied the remaining H-1B eligibility criteria described under
section 101(a)(15)(H) of the Act and Sec. 214.2(h) of this chapter. If
these criteria have been satisfied, the waiver granted to the foreign
medical graduate under Pub. L. 103-416 may be affirmed, and the new H1-
B petition may be approved in the exercise of discretion, thereby
permitting the foreign medical graduate to serve the balance of the
requisite 3-year employment period at the health care facility named in
the new H-1B petition.
(D) Failure to notify the Service of any material changes in
employment. Foreign medical graduates who have been granted a waiver of
the 2-year requirement and who have obtained H-1B status under Pub. L.
103-416 but fail to: Properly notify the Service of any material change
in the terms and conditions of their H-1B employment, by having their
employer file an amended or a new H-1B petition in accordance with this
section and Sec. 214.2(h) of this chapter; or establish continued
eligibility for the waiver and H-1B status, shall (together with their
dependents) again become subject to the 2-year requirement. Such
foreign medical graduates and their accompanying H-4 dependents also
become subject to deportation under section 241(a)(1)(C)(i) of the Act.
* * * * *
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
3. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; and 8 CFR part 2.
Sec. 245.1 [Amended]
4. In Sec. 245.1, paragraph (c)(2) is amended by removing the ``;''
at the end of the paragraph and replacing it with a ``.''; and by
adding a new sentence at the end of paragraph (c)(2) to read as
follows:
Sec. 245.1 Eligibility.
* * * * *
(c) * * *
(2) * * * An alien who has been granted a waiver under section
212(e)(iii) of the Act based on a request by a State Department of
Health (or its equivalent) under Pub. L. 103-416 shall be ineligible to
apply for adjustment of status under section 245 of the Act if the
terms and conditions specified in section 214(k) of the Act and
Sec. 212.7(c)(9) of this chapter have not been met;
* * * * *
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
5. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.
6. In Sec. 248.2, paragraph (c) is amended by removing the ``;
and'' at the end of the paragraph and replacing it with a ``.''; and by
adding two new sentences at the end of paragraph (c) to read as
follows:
Sec. 248.2 Ineligible classes.
* * * * *
(c) * * * This restriction shall not apply when the alien is a
foreign medical graduate who was granted a waiver under section
212(e)(iii) of the Act pursuant to a request made by a State Department
of Public Health (or its equivalent) under Pub. L. 103-416, and the
alien complies with the terms and conditions imposed on the waiver
under section 214(k) of the Act and the implementing regulations at
Sec. 212.7(c)(9) of this chapter. A foreign medical graduate who was
granted a waiver under Pub. L. 103-416 and who does not fulfill the
requisite 3-year employment contract or otherwise comply with the terms
and conditions imposed on the waiver is ineligible to apply for change
of status to any other nonimmigrant classification; and
* * * * *
Dated: April 25, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-12272 Filed 5-17-95; 8:45 am]
BILLING CODE 4410-10-M