[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Rules and Regulations]
[Pages 28801-28804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13918]


=======================================================================
-----------------------------------------------------------------------

UNITED STATES INFORMATION AGENCY

22 CFR Part 514


Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Final rule.

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

SUMMARY: This rule amends existing regulations governing 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 to the regulations governing waiver requests 
by interested United States Government agencies are

[[Page 28802]]

necessary to provide for uniform administration of such requests. The 
Agency anticipates that such changes will increase administrative 
efficiency and speed of response and also ensure that multiple waiver 
requests on behalf of an individual exchange visitor are not processed.

EFFECTIVE DATE: This regulation is effective May 28, 1997.

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 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 Agency administered 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. 212(e), 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 nations entering the United States as Exchange Visitor 
Program participants are subject to the return home requirement if 
they: (i) receive U.S. or foreign government financing for any part of 
their studies or training in the U.S.; (ii) studies or trained in a 
field deemed or 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 Section 
212(e) 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 the 
visitor's home government; (ii) exceptional hardship to the visitor's 
U.S. citizen 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. 
Section 212(e) also prohibits a foreign medical graduate from applying 
for a waiver on the basis of a no objection statement from the 
visitor's home government.
    The exact number of exchange visitors that are subject to the 
212(e) requirement is not known; but, a careful examination of this 
matter would suggest that upwards of 100,000 exchange visitors are in 
fact currently subject to the return home requirement.

Interested U.S. Government Agency Waiver Requests

    The Agency Exchange Visitor Program Services, Waiver Review Branch, 
is responsible for processing waiver applications. Last year, this 
branch processed over 6,000 waiver applications, 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 three years, the number of interested government agency requests 
submitted to the Agency has increased five-fold to some 1700 annually.
    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. 
Currently, 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 order to work in health 
professional shortage area. The Department of Veterans Affairs has 
acted on behalf of foreign medical graduates in the past but is not 
prevented from doing so by Section 622 of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996. The Department of 
Housing and Urban Development has also acted on behalf of foreign 
medical graduates in the past but has now placed a moratorium on such 
requests.
    As explained in the supplementary information of the Agency's 
September 4, 1996 Federal Register announcement of proposed rules for 
this type of waiver request, inconsistency in the administration of 
such requests among the participating 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 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.
    To address these concerns, the Agency adopts at 22 CFR 514.44(c)(4) 
specific provisions regarding the documentation that must accompany an 
interested government agency waiver request submitted on behalf of a 
foreign medical graduate. These requirements were developed by an 
inter-agency working group comprised of representatives from the 
Departments of Health and Human Services, Housing and Urban 
Development, Agriculture and Veterans Affairs as well as the 
Appalachian Regional Commission. These requirements are designed to 
enhance the underlying programmatic objectives that the submitting 
agency seeks to meet, viz., making primary medical care available to 
Americans living in areas without adequate access to medical care.
    To this end, an employment contract that specifies the foreign 
medical graduate will provide not less than 40 hours per week of 
primary medical care, for a period of not less than three years, in a 
designated primary care Health Professional Shortage Area (``HPSA'') or 
designated Medically Underserved Area (``MUA'') or psychiatric care in 
a designated Mental Health Professional Shortage Area (``MHPSA'') will 
be required. As the underlying policy objective for an agency to act on 
behalf of a foreign medical graduate is to provide primary health care 
to the residents of such areas, the contract shall not include a non-
compete clause enforceable against the foreign medical graduate. This 
provision is adopted to ensure that the foreign medical graduate is not 
forced to leave a HPSA, MHPSA, or MUA at the end of his or her 
contract. In similar fashion, the Agency also sought public comment 
regarding the inclusion of liquidated damages clauses in these 
contracts of employment. No clear evidence exists that such clauses 
either enhance or are detrimental to the underlying policy objectives 
of interested government agencies and accordingly, no regulatory 
provision governing this matter is adopted.
    In addition to a copy of the employment contract, each waiver 
request filed on behalf of a foreign

[[Page 28803]]

medical graduate by an interested United States Government agency must 
include two written statements. The first statement must be signed and 
dated by the head of the health care facility that will employ the 
foreign medical graduate. The head of the facility will attest that the 
facility is located in a designated HPSA, MHPSA, or MUA and that the 
facility provides medical care to Medicaid or Medicare eligible and 
indigent uninsured patients. These requirements must be met in order to 
satisfy the underlying program and policy interests of the requesting 
agency. A second statement must be submitted by the foreign medical 
graduate that declares he or she does not have a pending interested 
federal agency or state department of health request awaiting 
administrative action and will not request that another agency pursue a 
waiver request on his behalf while the immediate request is being 
processed.
    Nine comments were received in response to the Notice of Proposed 
Rulemaking published on September 4, 1996. A detailed comment was 
submitted by the American Immigration Lawyers Association. This comment 
presented an argument that agencies should request waivers on behalf of 
specialists as well as primary care physicians and that the physical 
location of the health care facility that employs the foreign medical 
graduate need not be physically located in a HPSA, MHPSA, or MUA. Other 
comments received advanced similar arguments. The working group 
carefully considered, but decided against, these suggestions because of 
the predicted over-supply of specialists in the United States, the 
greater need for primary medical care in health professional shortage 
areas, and in order to confirm with such programs as the National 
Health Service Corps established within the United States to provide 
health care in shortage areas.
    Further, specific unmet needs for physicians in prisons, mental 
hospitals, or specific population groups may be met by obtaining the 
required designation from the Department of Health and Human Services. 
Designation of these facilities or population groups as site-specific 
HPSA, MHPSA, or MUA areas will allow foreign medical graduates to 
provide primary care services or psychiatric care to these populations. 
Such designation takes into account the suggestion in certain comments 
received by the Agency, that limiting the practice of foreign medical 
graduates to the geographic environs of a HPSA, MHPSA, or MUA would 
prevent these site-specific populations from receiving primary care or 
psychiatric care services.
    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: May 21, 1997.
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 revising paragraph (c) 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 medical care in a designated primary care 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 years and that the foreign medical graduate is to be 
employed by the facility for the purpose of providing not less than 40 
hours per week of primary medical care, i.e. general or family 
practice, general internal medicine, pediatrics, or obstetrics and 
gynecology, in a designated primary care Health Professional Shortage 
Area or designated Medically Underserved Area (``MUA'') or psychiatric 
care in a designated Mental Health Professional Shortage Area. Further, 
such employment contract shall not include a non-compete clause 
enforceable against the foreign medical graduate.
    (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 and provides medical care to both Medicaid 
or Medicare eligible patients and indigent uninsured patients. The 
statement shall also list the primary care Health Professional Shortage 
Area, Mental Health Professional Shortage Area, or Medically 
Underserved Area/Population identifier number of the designation 
(assigned by the Secretary of Health and Human Services), and shall 
include the FIPS county code and census tract or block numbering area 
number (assigned by the Bureau of the Census) or the 9-digit zipcode of 
the area where the facility is located.
    (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 I do not now have pending nor am I

[[Page 28804]]

submitting 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, other than 
____________________ (insert name of United States Government Agency 
requesting waiver) to act on my behalf in any matter relating to a 
waiver of my two-year home-country physical presence requirement.

    (iv) Evidence that unsuccessful efforts have been made to recruit 
an American physician for the position to be filled.
    (5) Except as set forth in Sec. 514.44(f)(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.
* * * * *
[FR Doc. 97-13918 Filed 5-27-97; 8:45 am]
BILLING CODE 8230-01-M