[Federal Register Volume 62, Number 45 (Friday, March 7, 1997)]
[Rules and Regulations]
[Pages 10422-10425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5660]



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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1806-96]
RIN 1115-AD74


Processing of Certain H-1A Nurses Under Public Law 104-302

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization 
Service's (the Service) regulations by describing the procedures for an 
H-1A nurse to obtain an extension of stay based on Public Law 104-302, 
``[a]n Act to extend the authorized period of stay within the United 
States for certain nurses.'' This is necessary as a response to 
concerns that certain geographical locations in the United States 
continue to experience a shortage of registered nurses.

DATES: The interim rule is effective March 7, 1997. Written comments 
must be submitted on or before May 6, 1997.

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 1806-96 
on your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT:
John W. Brown, Adjudications Officer, Adjudications Division, 
Immigration and Naturalization Service, 425 I Street, NW., Room 3214, 
Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: The H-1A nonimmigrant classification, which 
provided for the temporary admission of registered nurses to the United 
States, expired on September 1, 1995. However, on October 11, 1996, 
Congress enacted Public Law 104-302, ``[a]n Act to extend the 
authorized period of stay within the United States for certain 
nurses,'' in response to concerns that certain geographic locations in 
the United States continue to experience a shortage of registered 
nurses. The legislation provides for the granting of an extension of 
stay until September 30, 1997, to certain aliens who: (1) entered the 
United States as H-1A nurses; (2) were within the United States on or 
after September 1, 1995, and who were within the United States on 
October 11, 1996; and (3) whose period of authorized stay has expired 
or would expire before September 30, 1997, but for the enactment of the 
legislation. This rule will amend the Service's regulation at 8 CFR 
214.2(h)(15)(ii)(A) to include these requirements.
    Public Law 104-302 does not provide for the approval of new H-1A 
petitions and relates solely to extensions of stay for certain aliens 
who are in, or have previously been accorded, nonimmigrant H-1A status 
as registered nurses. This rule amends the description of the H-1A 
classification found at 8 CFR 214.2(h)(1)(ii)(A) and removes the 
references to the H-1A classification at 8 CFR 214.2(h)(2)(i)(A) and at 
8 CFR 214.2(h)(9)(iii)(A) in order to clarify these recently enacted 
statutory changes. The definition of an H-1B nonimmigrant alien found 
at 8 CFR 214.2(h)(1)(ii)(B) is amended to reflect that registered 
nurses are no longer statutorily excluded from the H-1B classification 
due to the expiration of the H-1A nonimmigrant classification. The rule 
also amends 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 214.2(h)(13)(ii) to 
reflect changes affecting employers and travel restrictions, 
respectively.

Eligibility

    The legislation does not make available the H-1A classification for 
registered nurses seeking initial entry into the United States but 
merely provides for the extension of stay until September 30, 1997, for 
those H-1A nurses who meet the above requirements. Under this 
legislation, the Service may not approve an H-1A petition filed on 
behalf of an alien who has not previously been accorded H-1A 
classification. Since the legislation was designed solely to extend the 
H-1A stay of registered nurses affected by the 1995 sunset of the H-1A 
classification, an alien must have been employed in H-1A classification 
as a registered nurse on September 1, 1995, to obtain the benefits of 
the legislation. An alien who was not employed as a registered nurse in 
H-1A classification on September 1, 1995, is not eligible for an 
extension of temporary stay under this legislation. Further, because 
Pub. L. 104-302 deals solely with extensions of H-1A stay, this 
provision does not apply to aliens who were previously accorded H-1A 
classification and subsequently obtained a different nonimmigrant 
classification.
    The legislation effectively overrides the regulatory 5-year 
limitation of temporary stay previously imposed by the Service on H-1A 
registered nurses. Thus, an eligible alien may seek an extension of H-
1A stay regardless of the length of time that he or she was in the 
United States in such nonimmigrant classification. The regulation at 8 
CFR 214.2(h)(13)(ii) has been amended to reflect this change.

Filing Requirements

    This interim regulation requires that an employer seeking the 
services of an H-1A registered nurse pursuant to Public Law 104-302 
file a Form I-129, Petition for Nonimmigrant Worker, at the appropriate 
Service Center to obtain an extension of the alien's stay in the United 
States. The purpose of requiring the filing of a petition is to ensure 
that a nurse is, in fact, eligible for the benefits of the legislation. 
The filing and subsequent approval of the petition will also provide 
assurance to the petitioner that the alien's employment will not result 
in an employer sanctions violation.
    This interim rule amends 8 CFR 214.2(h)(15)(ii)(A) by providing a 
list of the evidence which must be submitted with the request for the 
extension of the alien's stay in H-1A classification. The interim rule 
requires that the employer submit evidence that the alien is licensed 
to practice as a registered nurse in the state of intended employment, 
that the alien was employed as a registered nurse on September 1, 1995, 
that the alien was in the United States on or after September 1, 1995, 
and, for an alien who was no longer in status on October 11, 1996, due 
to the 1995 sunset of the H-1A classification, that the alien was in 
the United States on October 11, 1996. In this regard, because the 
intent of Public Law 104-302 was to avoid disruption of much needed 
health care services, the Service interprets the requirement that an 
alien have been ``within'' the United States on October 11, 1996, to 
include H-1A registered nurses who, although not physically present in 
the United States on that date, subsequently were readmitted to this 
country pursuant to an unexpired H-1A petition.

Affected Groups

    The regulation contemplates three separate groups of H-1A nurses 
who may be affected by this legislation.
    The first group of H-1A nurses is comprise of those nurses who are 
currently in a valid nonimmigrant status but whose stay will expire 
prior to September 30, 1997. The registered nurses who meet the 
statutory requirements will have their H-1A nonimmigrant stay extended 
through September 30, 1997, upon the approval of Form I-129, Petition 
for

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Nonimmigrant Worker, filed by their employer at the appropriate Service 
Center. In accordance with 8 CFR 274a.12(b)(20), such nurses will be 
authorized to continue employment with the petitioning employer pending 
Service adjudication of the petition.
    The second group of H-1A nurses is comprised of those nurses who 
were employed in H-1A classification as a registered nurse on September 
1, 1995, and whose period of authorized stay in the United States had 
expired prior to the effective date of this legislation. Provided they 
meet the statutory requirements, the H-1A stay of these nurses shall 
also be extended through September 30, 1997, upon the approval of Form 
I-129 filed by their United States employer at the appropriate Service 
Center. In accordance with 8 CFR 274a.12(b)(20), such nurses will also 
be authorized to continue employment with the petitioning employer 
pending Service adjudication of the petition.
    An otherwise qualified registered nurse in this second group who 
was employed in H-1A classification on September 1, 1995, but is no 
longer in a valid nonimmigrant status due to the expiration of the H-1A 
classification, is eligible for an extension of temporary stay 
regardless of whether the alien continued to work as a registered nurse 
after September 1, 1995. The petition extension may be filed by any 
facility as defined in 8 CFR 214.2(h)(3)(i)(B). Further, an alien 
granted an extension of stay under this provision is considered to have 
maintained a valid nonimmigrant status through September 30, 1997, for 
all purposes under the Immigration and Nationality Act, as amended (the 
``INA'').
    A third group of H-1A aliens, those whose period of authorized stay 
will not expire until after September 30, 1997, are not affected by the 
legislation. These H-1A nurses may remain in the United States until 
the validity of their petition expires.
    This legislation does not affect the status of an alien who was 
admitted to the United States as an H-1B nonimmigrant alien to perform 
services in the field of professional nursing. Further, this 
legislation does not preclude the Service from approving an H-1B 
petition filed for a professional nurse, if all regulatory and 
statutory provisions relating to the H-1B classification are met.

Change of Employers

    Subsection (b) of the statute specifically provides that an H-1A 
nurse may not change employers in the United States. The regulation at 
8 CFR 214.2(h)(2)(i)(D) has been amended to reflect this restriction. 
However, a mere change in employer ownership or a change in work 
location with the same employer does not, for the purposes of the H-1A 
classification, constitute a change of employers.

Travel Restrictions

    The legislation also provides that the extension of the authorized 
period of stay for certain nurses does not in any way extend the H-1A 
alien's visa. Further, Public Law 104-302 does not authorize the re-
entry of any person who was outside the United States on the date of 
enactment and who was not the beneficiary of an unexpired, approved H-
1A petition to obtain the benefits of the legislation. Hence, an alien 
who was outside the United States on the date the legislation was 
enacted and who previously held H-1A nonimmigrant classification which 
has expired is ineligible for H-1A classification. An alien who obtains 
an extension of stay based on this legislation and subsequently departs 
the United States will be required to obtain appropriate documentation 
from the Department of State in order to apply for admission to the 
United States in H-1A classification. The regulation at 8 CFR 
214.2(h)(13)(ii) has been amended to reflect this change.

Maintenance of Status

    An H-1A alien who obtains an extension of stay based on this 
legislation is considered to have maintained lawful nonimmigrant status 
through September 30, 1997. This provision also applies to the spouse 
and child of the H-1A nonimmigrant alien. The regulation at 8 CFR 
214.2(h)(15)(ii)(A) has been amended to reflect this change. Upon 
approval of the extension, such persons shall be accorded H-4 
nonimmigrant status. In addition, a spouse or child granted an 
extension of stay under this section of law is considered to have 
maintained a valid nonimmigrant status for all purposes under the INA.
    This rule also amends the regulation at 8 CFR 214.2(h)(9)(iii) to 
reflect a technical change in the title of the Chief of the 
Administrative Appeals Unit, Central Office, to the Director of the 
Appeals Office, Headquarters.

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. First, the provisions of Public Law 104-302 require that 
the Service issue implementing regulations not later than 30 days after 
the date that the legislation was enacted. As a result of this 
provision, the Service does not have sufficient time to solicit 
comments from the public prior to publishing a notice of proposed 
rulemaking. Second, the Service notes that this provision is intended 
solely to grant a benefit to eligible aliens and the general public.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. This interim rule merely clarifies the requirements for 
obtaining an extension of stay under Public Law 104-302.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

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

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Executive Order 12612

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

Executive Order 12988

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 214

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

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

PART 214--NONIMMIGRANT CLASSES

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

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2;

    2. Section 214.2 is amended by:
    a. Revising paragraphs (h)(1)(ii)(A) and (B) (1);
    b. Revising paragraphs (h)(2)(i)(A) and (D);
    c. Removing paragraph (h)(9)(iii)(A);
    d. Redesignating paragraphs (h)(9)(iii) (B), (C), and (D) as 
paragraphs (h)(9)(iii) (A), (B), and (C) respectively;
    e. Revising paragraph (h)(13)(ii); and by
    f. Revising paragraph (h)(15)(ii)(A); to read as follows:


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

* * * * *
    (h) * * *
    (1) * * *
    (ii) Description of classification.
    (A) An H-1A classification applies to an alien who is coming 
temporarily to the United States to perform services as a registered 
nurse, meets the requirements of section 212(m)(1) of the Act, and will 
perform services at a facility for which the Secretary of Labor has 
determined and certified to the Attorney General that an unexpired 
attestation is on file and in effect under section 212(m)(2) of the 
Act. This classification expired on September 1, 1995, but certain 
aliens previously accorded H-1A classification are eligible to obtain 
and extension of stay until September 30, 1997, pursuant to Public Law 
104-302.
    (B) * * *
    (1) To perform services in a specialty occupation (except 
agricultural workers, and aliens described in section 101(a)(15) (O) 
and (P) of the Act) described in section 214(i)(1) of the Act, that 
meets the requirements of section 214(i)(2) of the Act, and for whom 
the Secretary of Labor has determined and certified to the Attorney 
General that the prospective employer has filed a labor condition 
application under section 212(n)(1) of the Act;
* * * * *
    (2)Petitions--(i) Filing of petitions--(A) General. A United States 
employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3 
temporary employee shall file a petition on Form I-129, Petition for 
Nonimmigrant Worker, only with the Service Center which has 
jurisdiction in the area where the alien will perform services, or 
receive training, even in emergent situations, except as provided in 
this section. Petitions in Guam and the Virgin Islands, and petitions 
involving special filing situations as determined by Service 
Headquarters, shall be filed with the local Service office or a 
designated Service office. The petitioner may submit a legible 
photocopy of a document in support of the visa petition in lieu of the 
original document. However, the original document shall be submitted if 
requested by the Service.
* * * * *
    (D) Change of employers. If the alien is in the United States and 
seeks to change employers, the prospective new employer must file a 
petition on Form I-129 requesting classification and extension of the 
alien's stay in the United States. If the new petition is approved, the 
extension of stay may be granted for the validity of the approved 
petition. The validity of the petition and the alien's extension of 
stay shall conform to the limits on the alien's temporary stay that are 
prescribed in paragraph (h)(13) of this section. The alien is not 
authorized to begin the employment with the new petitioner until the 
petition is approved. An H-1A nonimmigrant alien may not change 
employers.
* * * * *
    (13) * * *
    (ii) H-1A limitation on admission. An alien who was previously 
accorded H-1A nonimmigrant status, which expired on or before October 
11, 1996, may not be admitted to the United States after October 11, 
1996, in order to apply for an extension of authorized stay as provided 
in Public Law 104-302. Except as provided in paragraph (15)(ii)(A) of 
this subsection, and H-1A alien who has spent 5 years in the United 
States under section 101(a)(15)(H) of the Act may not change status, or 
be readmitted to the United States in any H classification unless the 
alien has resided and been physically present outside the United 
States, except for brief trips for pleasure or business, for the 
immediate prior year.
* * * * *
    (15) * * *
    (ii) * * *
    (A) H-1A extension of stay. An alien who previously entered the 
United States pursuant to an H-1A visa may receive an extension of H-1A 
temporary stay until September 30, 1997, provided that the alien was 
within the United States in valid H-1A classification on or after 
September 1, 1995, regardless of whether the alien continued to work as 
a registered nurse after September 1, 1995; that the alien's period of 
H-1A temporary stay has expired or would expire before September 30, 
1997; and, if the alien was not in valid H-1A nonimmigrant status on 
October 11, 1996, that the alien was within the United States on 
October 11, 1996. An extension of stay may not be granted to an H-1A 
nonimmigrant alien beyond September 30, 1997. An H-1A alien granted an 
extension of stay, and the spouse and child of such nonimmigrant, shall 
be considered to have maintained nonimmigrant status through September 
30, 1997, for all purposes under the Immigration and Nationality Act, 
as amended. Public Law 104-302 does not apply to an H-1A alien who 
otherwise failed to maintain his or her valid H-1A nonimmigrant status 
or has changed from H-1A to another nonimmigrant status. A request for 
an extension of stay for an H-1A nonimmigrant must be filed on Form I-
129, Petition for Nonimmigrant Worker, at the appropriate Service 
Center with the following:
    (1) Evidence that the alien was employed as a registered nurse on 
September 1, 1995:
    (2) Evidence that the beneficiary is licensed to practice as a 
registered nurse in the state of intended employment;
    (3) Evidence that the alien was within the United States on or 
after September 1, 1995. For purposes of this provision, an alien will 
be deemed to have been within the United States on September 1, 1995, 
who, although not physically present in the United States on that date, 
was subsequently admitted to the United States in H-1A classification 
pursuant to an unexpired H-1A visa; and

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    (4) If the alien was not in valid H-1A nonimmigrant status on 
October 11, 1996, evidence that the alien was within the United States 
on October 11, 1996. For purposes of this provision, an alien will be 
deemed to have been within the United States on October 11, 1996, who, 
although not physically present in the United States on that date, was 
subsequently admitted to the United States in H-1A classification 
pursuant to an unexpired H-1A visa.
* * * * *


Sec. 214.2  [Amended]

    3. In Sec. 214.2, newly redesignated paragraph 
(h)(9)(iii)(B)(2)(ii) is amended in the second sentence by revising the 
phrase ``Chief of the Administrative Appeals Unit, Central Office'' to 
read: ``Director, Administrative Appeals Office, Headquarters''.

    Dated: February 28, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-5660 Filed 3-6-97; 8:45 am]
BILLING CODE 6560-50-M