[Federal Register Volume 61, Number 173 (Thursday, September 5, 1996)]
[Proposed Rules]
[Pages 46745-46748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22586]


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UNITED STATES INFORMATION AGENCY

22 CFR Part 514


Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Proposed rule with request for comments.

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SUMMARY: This proposed rule would amend existing regulations governing 
the Agency's internal Exchange Visitor Waiver Review Board and requests 
for waiver of the two-year home-country physical presence requirement 
made by interested United States Government agencies on behalf of an 
exchange visitor. Changes in the regulations providing for the Agency's 
Waiver Review Board are proposed to reconcile them with Agency policy 
and to control the number of cases mandatorily referred to the Board. 
The Agency expects that the number of cases afforded Board review will 
be reduced. Changes to the regulations governing waiver requests by 
interested United States Government agencies are believed necessary to 
provide for uniform administration of such requests. The Agency 
anticipates that the proposed changes will increase administrative 
efficiency and speed of response and also ensure that multiple 
interested U.S. Government agency (or state) waiver requests on behalf 
of an individual exchange visitor are not processed.


[[Page 46746]]


DATES: Comments regarding this proposed rule will be accepted until 
November 4, 1996.

ADDRESSES: Comments may be mailed to Rulemaking Clerk, Room 700, Office 
of General Counsel, United States Information Agency, 301 4th Street, 
SW., Washington, DC 20547.

FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information 
Agency, 301 4th Street, SW., Washington, DC 20547; Telephone, (202) 
619-6829.

SUPPLEMENTARY INFORMATION: Under the aegis of the Exchange Visitor 
Program, some 175,000 foreign nationals come to this country to work, 
study, or train in the United States annually. As part of the public 
diplomacy efforts of the United States Government, these foreign 
nationals enter the United States as participants in the Exchange 
Visitor Program which seeks to promote peaceful relations and mutual 
understanding with other countries through educational and cultural 
exchange programs. Accordingly, many exchange visitors entering the 
United States are subject to a statutory provision, set forth at 8 
U.S.C. 1182(e) (section 212(e) of the Immigration and Nationality Act), 
which requires that they return to their home country for a period of 
two years to share with their countrymen the knowledge, experience and 
impressions gained during their sojourn in the United States.
    Foreign nationals entering the United States as Exchange Visitor 
Program participants are subject to the return home requirement if 
they: (i) Received U.S. or foreign government financing for any part of 
their studies or training in the U.S.; (ii) studied or trained in a 
field deemed of importance to their home government and such field is 
on the ``skills list'' maintained by the Agency in consultation with 
foreign governments; or, (iii) entered the U.S. to pursue graduate 
medical education or training. An exchange visitor subject to this 
requirement is not eligible for an H or L visa, or legal permanent 
resident status until the return-home requirement is fulfilled or 
waived.
    If subject to the two-year return-home requirement, an exchange 
visitor may seek a waiver of such requirement. The bases upon which a 
waiver may be granted are: (i) A no objection statement from visitor's 
home government; (ii) exceptional hardship to the visitor's U.S. 
citizen (or legal permanent resident) spouse or child; (iii) a request, 
on the visitor's behalf, by an interested United States Government 
agency; (iv) a reasonable fear of persecution if the visitor were to 
return to his or her home country; and, (v) a request by a state on 
behalf of an exchange visitor who has pursued graduate medical 
education or training in the U.S.

Interested U.S. Government Agency Waiver Requests

    The Agency's Exchange Visitor Program Services, Waiver Review 
Branch, is responsible for processing waiver applications. Last year, 
this branch received approximately 6,000 waiver applications, 
approximately 95 percent of which were based upon either a no objection 
statement from the visitor's home government or a request from an 
interested government agency. Over the past four years, the number of 
interested government agency requests submitted to the Agency has 
increased approximately five-fold to some 1,700 annually for calendar 
year 1995.
    The vast majority of interested government agency requests 
processed by the Agency involve foreign medical graduates who entered 
the United States to pursue graduate medical education or training. At 
present, the Department of Veterans Affairs, the Department of Housing 
and Urban Development, the Department of Agriculture, and the 
Appalachian Regional Commission will act as an interested government 
agency on behalf of a foreign medical graduate seeking a waiver of his 
or her two-year home-country physical presence requirement. In return 
for agency request, the foreign medical graduate must agree to practice 
patient care in a geographic area designated by the Secretary of Health 
and Human Services as either a Primary Care Health Professional 
Shortage Area (``HPSA''), or Medically Underserved Area (``MUA''), or 
psychiatric care in a Mental Health Professional Shortage Area or to 
work at a facility operated by the Department of Veterans Affairs.
    For years, the Department of Veterans Affairs and the Appalachian 
Regional Commission were the only agencies making requests for waivers 
on behalf of these foreign medical graduates, but in the past three 
years the Department of Agriculture and the Department of Housing and 
Urban Development also have begun to act on their behalf. With the 
entry into the waiver process of these two additional agencies, 
inconsistency in the administration of waiver requests among the 
different agencies has created a degree of confusion in the 
administrative process. Further, foreign medical graduates have also 
pursued concurrent waiver requests with multiple agencies. These 
concurrent requests reflect conflicting commitments or are duplicative 
and are therefore inappropriate, waste limited administrative staff 
resources, and do not further the requesting agency's mission and 
policy objectives. Further, such concurrent requests are unfair to the 
communities named in the unapproved applications given the considerable 
expenditure of resources that local communities devote to the waiver 
process. Accordingly, the Agency proposes to amend Sec. 514.44(c) to 
both provide uniformity to this process and prevent the filing of 
concurrent waiver requests.

Waiver Review Board

    An increase in the number of interested government agency and ``no 
objection'' waiver requests has also placed an increased burden on the 
Agency's internal Waiver Review Board. Many of these waiver requests 
involve exchange visitors who have received government funding for part 
or all of their exchange activities. Current regulations require that 
such cases be referred to the Waiver Review Board if the government 
sponsor that has provided funding objects to the exchange visitor's 
receiving a waiver. Other circumstances that require automatic referral 
to the Waiver Review Board are set forth in 22 CFR 514.44(g).
    Given the increased number of waiver requests and the questionable 
value to program goals added by the Waiver Review Board process in 
certain types of mandatorily-referred cases, the Agency has identified 
a need to streamline the waiver review process and to reduce 
significantly the number of waiver applications routinely or 
mandatorily referred to the Waiver Review Board for decision. Further, 
organizational and staffing changes within the Agency's Exchange 
Visitor Program Services unit have resulted in the abolishment of the 
position of Director, Exchange Visitor Program Services and an 
alteration of the duties of the Waiver Branch Chief. The loss of the 
Director position has, in turn, rendered certain procedures set forth 
in Sec. 514.44 (g) and (h) no longer germane. Accordingly, the Agency 
proposes new provisions to reflect the administrative changes in the 
Waiver Review Branch and to adjust the existing requirement of 
automatic referral to the Board of certain cases.

Comment

    The Agency invites comments regarding this proposed 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

[[Page 46747]]

Procedures Act, 5 U.S.C. 553(a)(1), (1989) specifically exempts foreign 
affairs functions from the rulemaking requirements of the Act.
    The Agency extends a 60-day public comment period. In response to 
suggestions and requests from immigration practioners, the Agency is 
also requesting public comment on certain matters related to this 
proposed rule but not set forth therein. Specifically, the Agency 
welcomes comment regarding the need for and merits of non-compete and 
punitive damages clauses that are set forth in contracts between local 
health facilities and foreign medical graduates receiving a waiver in 
order to work at such facility. These contractual clauses impose 
limitations upon the geographical area in which waiver recipients may 
practice medicine at the end of the employment contract and also 
penalize waiver recipients who fail to complete their contractual 
obligations by providing the health care facility the opportunity to 
pursue significant monetary damages against the waiver recipient. It is 
the Agency's belief that some, but not all, of these contracts contain 
such provisions and the Agency is accordingly interested in learning 
whether such provisions should be uniformly mandated. Further, based 
upon suggestions from the private bar, the Agency is interested in 
comment that discusses the need for and merits of an internal audit 
procedure for use by federal agencies or departments making interested 
government agency waiver requests. The Agency believes that such 
internal audit procedures could safeguard the integrity of the waiver 
request process.
    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 E.O. 12291, nor does 
it have federal implications warranting the preparation of a Federalism 
Assessment in accordance with E.O. 12612.

List of Subjects in 22 CFR Part 514

    Cultural Exchange programs.

    Dated August 29, 1996.
R. Wallace Stuart,
Acting General Counsel.

    Accordingly, 22 CFR part 514 is amended as follows:

PART 514--EXCHANGE VISITOR PROGRAM

    1. The authority citation for part 514 continues to read as 
follows:

    Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460: Reorganization Plan No 2 of 1977, 42 FR 62461, 3 
CFR, 1977 Comp. p. 200; E.O. 12048 43 FR 13361, 3 CFR, 1978 Comp. p 
168; USIA Delegation Order No, 85-5 (50 FR 27393).

    2. Section 514.44 is amended by removing paragraph (h) and revising 
paragraphs (c) and (g) to read as follows:


Sec. 514.44   Two-year home-country physical presence requirement.

* * * * *
    (c) Requests for waiver made by an interested United States 
Government Agency. (1) A United States Government agency may request a 
waiver of the two-year home-country physical presence requirement on 
behalf of an exchange visitor if such exchange visitor is actively and 
substantially involved in a program or activity sponsored by or of 
interest to such agency.
    (2) A United States Government agency requesting a waiver shall 
submit its request in writing and fully explain why the grant of such 
waiver request would be in the public interest and the detrimental 
effect that would result to the program or activity of interest to the 
requesting agency if the exchange visitor is unable to continue his or 
her involvement with the program or activity.
    (3) A request by a United States Government agency shall be signed 
by the head of the agency, or his or her designee, and shall include 
copies of all IAP-66 forms issued to the exchange visitor, his or her 
current address, and his or her country of nationality or last legal 
permanent residence.
    (4) A request by a United States Government agency, excepting the 
Department of Veterans Affairs, on behalf of an exchange visitor who is 
a foreign medical graduate who entered the United States to pursue 
graduate medical education or training, and who is willing to provide 
primary patient care in a designated Primary Medical Car Health 
Professional Shortage Area, or a Medically Underserved Area, or 
psychiatric care in a Mental Health Professional Shortage Area, shall, 
in addition to the requirements set forth in Sec. 514.44 (c)(2) and 
(3), include:
    (i) A copy of the employment contract between the foreign medical 
graduate and the health care facility at which he or she will be 
employed. Such contract shall specify a term of employment of not less 
than three yeas and that the foreign medical graduate is to be employed 
by the facility for the purpose of providing primary medical care in a 
designated Primary Medical Care Health Professional Shortage Area or 
designated Medically Underserved Area (``MUA'') or psychiatric care in 
a designated Mental Health Professional Shortage Area.
    (ii) A statement, signed and dated by the head of the health care 
facility at which the foreign medical graduate will be employed, that 
the facility is located in an area designated by the Secretary of 
Health and Human services as a Medically Underserved Area or Primary 
Medical Care Health Professional Shortage Area or Mental Health 
Professional Shortage Area. The statement shall also list the Health 
Professional Shortage Area or Medically Underserved Area identifier 
number assigned to the area by the Secretary of Health and Human 
Services.
    (iii) A statement, signed and dated by the foreign medical graduate 
exchange visitor that shall read as follows:

    I, ____________________ (name of exchange visitor) hereby 
declare and certify, under penalty of the provisions of 18 U.S.C. 
1101, that: (1) I have sought or obtained the cooperation of 
__________________ (enter name of United States Government agency 
which will submit/is submitting an IGA request on behalf of the 
Exchange Visitor to obtain a waiver of the 2-year home residence 
requirement); and (2) I do not now have pending nor will I submit 
during the pendency of this request, another request to any United 
States Government department or agency or any State Department of 
Public Health, or equivalent, to act on my behalf in any matter 
relating to a waiver of my two-year home-country physician presence 
requirement.

    (iv) Evidence that unsuccessful efforts have been made to recruit 
an American physical for the position to be filled by the exchange 
visitor.
    (5) Except as set forth in Sec. 514.44(g)(4), infra, the 
recommendation of the Waiver Review Branch shall constitute the 
recommendation of the Agency and such recommendation shall be forwarded 
to the Commissioner.
* * * * *
    (g) The Exchange Visitor Waiver Review Board. (1) The Exchange 
Visitor Waiver Review Board (``Board'') shall consist of the following 
Agency officers:
    (i) The Associate Director of the Bureau of Educational and 
Cultural Affairs, or his or her designee;
    (ii) The Director of the geographic area office responsible for the 
geographical area of the waiver applicant, or his or her designee;
    (iii) The Director of the Office of Congressional and 
Intergovernmental Affairs, or his or her designee;
    (iv) The Director of the Office of Academic Exchange, or his or her 
designee; and
    (v) The Director of the Office of Research, or his or her designee.

[[Page 46748]]

    (2) A person who has had substantial prior involvement in a 
particular case referred to the Board may not be appointed to serve on 
the Board for that particular case unless the General Counsel 
determines that the individual's inclusion on the Board is otherwise 
necessary or practicably unavoidable.
    (3) The Associate Director of the Bureau of Educational and 
Cultural Affairs, or his or her designee, shall serve as Board 
Chairman. No designee under this paragraph (g)(3) shall serve for more 
than 2 years.
    (4) Cases will be referred to the Board at the discretion of the 
Branch Chief, Waiver Review Branch, of the Agency's office of Exchange 
Visitor Program Services. The Waiver Review Branch shall prepare a 
summary of the particular case referred and forward it along with a 
copy of the relevant file to the Board Chairman. The Chief, Waiver 
Review Branch, or his or her designee, may, at the Chairman's 
discretion, appear and present facts related to the case but shall not 
participate in Board deliberations.
    (5) The Chairman of the Board shall be responsible for convening 
the Board and distributing all necessary information to its members. 
Upon being convened, the Board shall review the case file and weigj the 
request against the program, policy, and foreign relations aspects of 
the case.
    (6) At the conclusion of its review of the case, the Board shall 
make a written recommendation either to grant or to deny the waiver 
application. The written recommendation of a majority of the Board 
shall constitute the recommendation of the Board. Such recommendation 
shall be promptly transmitted by the Chairman to the Branch Chief, 
Waiver Review Branch.
    (7) The recommendation of the Board in any case reviewed by it 
shall constitute the recommendation of the Agency and such 
recommendation shall be forwarded to the Commissioner by the Branch 
Chief, Waiver Review Branch.

[FR Doc. 96-22586 Filed 9-4-96; 8:45 am]
BILLING CODE 8230-01-M