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INS's H-1C Nurse
Regulations
[Federal Register: June 11, 2001 (Volume 66, Number 112)]
[Rules and Regulations]
[Page 31107-31114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jn01-2]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 214, 248 and 299
[INS 2050-00]
RIN 1115-AF76
Petitioning Requirements for the H-1C Nonimmigrant Classification
Under Public Law 106-95
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 (Service) regulations in order to implement the Nursing
Relief for Disadvantaged Areas Act of 1999 (NRDAA) by providing
instruction on the filing and adjudication of petitions for H-1C
classification. This rule will facilitate the hiring of nonimmigrant
alien nurses to reduce the shortage of nurses in health professional
shortage areas in the United States.
DATES: Effective Date: This interim rule is effective June 11, 2001.
Comment Date: Written comments must be submitted on or before
August 10, 2001.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch,
[[Page 31108]]
Immigration and Naturalization Service, 425 I Street, NW., Room 5307,
Washington, DC 20536. To ensure proper handling, please reference the
INS number 2050-00 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,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 353-8177.
SUPPLEMENTARY INFORMATION:
What Is the NRDAA?
On November 12, 1999, President Clinton signed into law the Nursing
Relief for Disadvantaged Areas Act of 1999 (NRDAA), Public Law 106-95.
The NRDAA created a new H-1C nonimmigrant category for registered
nurses who will work in facilities that serve health professional
shortage areas.
Is the H-1C Program Similar to the H-1A Program That Expired on
September 1, 1995?
The H-1A program was created by the Immigration Nursing Relief Act
of 1989 (INRA). While the NRDAA adopts, almost verbatim, many of the
provisions of the INRA, there are some differences between the two
programs. The NRDAA imposes more restrictions on the types of
facilities that may petition for a nonimmigrant registered nurse and
requires that these facilities make a greater number of attestations to
the Department of Labor (DOL) than did the INRA. Whereas the INRA
allowed for an unlimited number of H-1A nonimmigrant visas to be
issued, the NRDAA places a state-by-state numerical cap on the number
of H-1C nonimmigrant visas that may be issued. Also, unlike the INRA,
the NRDAA does not recognize nursing education received in Canada. For
the most part, however, the INRA and the NRDAA are identical and,
therefore, much of the regulatory language from the H-1A program has
been used for the H-1C program.
What Is an H-1C Nonimmigrant?
An H-1C nonimmigrant is an alien who is coming temporarily to the
United States to perform services as a registered nurse, who meets the
requirements of section 212(m)(1) of the Immigration and Nationality
Act (Act), and will perform services at a facility (as defined at
section 212(m)(6) of the Act) 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.
What Are the Eligibility Requirements for an H-1C Nurse?
The NRDAA imposed three requirements on an alien seeking H-1C
nonimmigrant status. First, the alien must have obtained a full and
unrestricted license to practice professional nursing in the country
where he or she obtained nursing education, or the alien must have
received nursing education in the United States. Second, the alien must
have passed an appropriate examination (recognized in regulations
promulgated in consultation with the Secretary of Health and Human
Services) or have a full and unrestricted license under state law to
practice professional nursing in the state of intended employment.
Finally, the alien must be fully qualified and eligible under the laws
(including such temporary or interim licensing requirements which
authorize the nurse to be employed) governing the place of intended
employment to engage in the practice of professional nursing as a
registered nurse immediately upon admission to the United States and be
authorized under such laws to be employed by the facility.
The NRDAA does not specifically designate any particular
examination as an ``appropriate examination'' for the purpose of
meeting the eligibility requirements for the H-1C classification. At
present, the only ``appropriate examination'' available for a
prospective H-1C alien is the examination offered by the Commission on
Graduate of Foreign Nursing Schools (CGFNS). However, the Service may
eventually recognize additional examinations for this purpose.
Questions concerning the test offered by CGFNS should be directed
to CGFNS. CGFNS can be reached through its internet website,
www.cgfns.org.
What Certification Requirements Are Imposed on an H-1C Alien?
On September 30, 1996, President Clinton signed the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L.
104-208. Section 343 of IIRIRA created a new ground of inadmissibility
at section 212(a)(5)(C) of the Immigration and Nationality Act (the
Act) for aliens coming to the United States to perform labor in certain
health care occupations. As initially written by Congress, section 343
of IIRIRA provides that any alien coming to the United States for the
purpose of performing labor as a health care worker, other than as a
physician, is inadmissible unless the alien presents to the consular
officer, or, in the case of adjustment of status, the Attorney General,
a certificate from the CGFNS, or an equivalent independent
credentialing organization approved by the Attorney General in
consultation with the Secretary of Health and Human Services (HHS).
Pursuant to the statute, the certificate must verify that: (1) The
alien's education, training, license, and experience are comparable
with that required for an American health care worker of the same type;
(2) they are authentic; (3) the alien's license is unencumbered; (4)
the alien has the level of competence in oral and written English
considered by the Secretary of HHS, in consultation with the Secretary
of Education, to be appropriate for health care work of the kind in
which the alien will be engaged, as shown by an appropriate score on
one or more nationally recognized, commercially available, standardized
assessments of the applicant's ability to speak and write English; and,
finally, (5) if a majority of states licensing the profession in which
the alien intends to work recognize a test predicting the success on
the profession's licensing or certification examination, the alien has
passed such an examination.
The NRDAA created an alternative certification requirement at
section 212(r) of the Act for certain nurses, which may include some H-
1C nonimmigrant aliens. Section 212(r) of the Act provides that section
212(a)(5)(C) of the Act shall not apply to a nurse who presents to the
consular office (or in the case of adjustment of status, the Attorney
General) a certified statement from the Commission on Graduates of
Foreign Nursing Schools (CGFNS) (or an equivalent independent
credentialing organization approved by the Attorney General and the
Secretary of Health and Human Services) which certifies that:
The alien has a valid and unrestricted license as a nurse
in the state where the alien intends to be employed and such state
verifies that the foreign licenses of alien nurses are authentic and
unencumbered;
The alien has passed the National Council Licensure
Examination (NCLEX);
The alien is a graduate of an English-language nursing
program in a country designated by the CGNFS which was in operation on
or before the date of enactment of the NRDAA or has been approved by
unanimous agreements by the CGFNS and any other approved credentialing
organizations.
The Service has granted authorization to three organizations to
issue
[[Page 31109]]
certificates to foreign health care workers pursuant to section 343 of
IIRIRA through the publication of two interim rules. However, the two
interim rules limited these organizations to issuing certificates to
aliens in only three occupations who are coming to the United States as
immigrants or who are applying for adjustment of status. Due to a
number of problems implementing a final regulation fully implementing
section 343, the Service has exercised its authority under section
212(d)(3) and waived the requirements of section 343 of IIRIRA as it
relates to nonimmigrant aliens. The Service will continue to waive
section 343 for nonimmigrant aliens until such time as the Service
promulgates a final rule implementing section 343 of IIRIRA in full.
In order to avoid confusion for both health care workers and
medical facilities, and to ensure equitable administration of these two
statutory provisions, the Service will include the proposed regulations
implementing section 212(r) in the soon to be published proposed rule
implementing section 343 of IIRIRA. As a result, the Service will
exercise the authority granted to it in section 212(d)(3) of the Act
and waive section 212(r) for nonimmigrant aliens until publication of a
final rule implementing both section 343 of IIRIRA and section 212(r)
of the Act.
Who Can File a Petition for an H-1C Nonimmigrant?
An H-1C petition may be filed by a United States employer hospital
(facility) which has filed an attestation with the DOL. The INS will
rely on the determination made by DOL when it (DOL) reviews the
attestation. The facility must have attested that:
As of March 31, 1997, it was located in a health
professional shortage area (as defined in section 332 of the Public
Health Service Act (42 U.S.C. 254e));
Based on its settled cost report for the period beginning
in FY 1994, it had:
1. At least 190 licensed acute care beds;
2. At least 35 percent of its inpatients days were for patients
entitled to Medicare; and
3. At least 28 percent of its inpatient days were for patients who
were entitled to Medicaid.
Are There Additional Attestation Requirements Provided for in the
NRDAA?
Yes. The facility must also attest to the DOL that:
The employment of the H-1C alien will not adversely affect
the wages and working conditions of other nurses similarly employed;
The H-1C alien will be paid the wage rate for registered
nurses similarly employed by the facility;
There is not a strike or lockout in the course of a labor
dispute;
It did not lay off and will not lay off a registered nurse
already employed by it within the period beginning 90 days before and
ending 90 days after the date of filing of any H-1C petition;
The employment of the H-1C alien is not intended to
influence an election for a bargaining representative for registered
nurses of the facility;
At the time of filing of the petition, notice of filing
has been provided by the facility to the bargaining representative of
the registered nurses at the facility or, where there is no such
bargaining representative, notice of the filing has been provided to
the registered nurses employed at the facility through posting in
conspicuous locations;
It will never employ a number of H-1C aliens that exceeds
33 percent of the total number of registered nurses employed by it;
The H-1C alien will not be authorized to perform nursing
services at any worksite other than the worksite controlled by it, and
It will not transfer the alien from one worksite to
another.
The facility must also attest that it has taken steps to recruit
and retain registered nurses who are United States citizens or
immigrants. These steps include, but are not limited to:
Operating a training program for registered nurses at the
facility or financing (or providing participation in) a training
program for registered nurses elsewhere;
Providing career development programs and other methods of
facilitating health care workers to become registered nurses;
Paying registered nurses wages at a rate higher than
currently being paid to registered nurses similarly employed in the
geographic area; or
Providing reasonable opportunities for meaningful salary
advancement by registered nurses.
These steps do not need to have been taken by the facility prior to
the enactment of the NRDAA.
A copy of the attestation shall be provided, within 30 days of the
date of filing, to registered nurses employed at the facility on the
date of its filing. The attestation shall apply to all H-1C petitions
filed during the 1-year period beginning on the date of its filing with
the Secretary of Labor if the facility states in each petition that it
continues to comply with the conditions in the attestation. These
attestation requirements are explained further in regulations issued by
the Secretary of Labor at 20 CFR Part 655, subparts L and M, 65 FR
51138 (Aug. 22, 2000).
Does an Attestation Ever Expire?
Yes. An attestation will expire either at the end of the 1-year
period beginning on the date of its filing with the Secretary of Labor
or at the end of the period of admission of the last H-1C alien with
respect to whose admission it applies, whichever is later. With regard
to an individual alien, the attestation remains valid as long as the
alien is employed by the facility that made the attestation.
What Are the Penalties That the Attorney General May Impose on
Facilities?
The NRDAA establishes that, if the Secretary of Labor finds that a
facility (for which an attestation is made) has failed to meet a
condition attested to, or that there was a misrepresentation of
material fact in the attestation, the Secretary may impose such
administrative remedies (including civil monetary penalties in an
amount not to exceed $1,000 per nurse per violation, with the total
penalty not to exceed $10,000 per violation) as the Secretary of Labor
deems appropriate. The Secretary of Labor shall also notify the
Attorney General of such finding and provide a recommendation regarding
the length of the debarment period. The Service will give considerable
weight to the Secretary's determination. Upon receipt of such notice,
the Service will make a final determination as to the length of the
period of debarment. The Service shall not approve H-1C petitions filed
by that facility for aliens to be employed by the facility for a period
of at least one year.
Where Should H-1C Petitions Be Filed?
All H-1C petitions must be filed on Form I-129 Petition for a
Nonimmigrant Worker at the Vermont Service Center (VSC).
What Supporting Documents Should Be Submitted With the Petition?
The petitioning facility must submit the following documents at the
time the H-1C petition is filed:
A current copy of the DOL's notice of acceptance of the
filing of its attestation on Form ETA 9081;
A statement describing any limitations which the laws of
the state or jurisdiction of intended employment place on the alien's
services; and
Evidence that the alien(s) named on the petition meets the
definition of a
[[Page 31110]]
registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A), and satisfies
the requirements for an H-1C nonimmigrant in section 212(m)(1) of the
Act.
Can an H-1C Alien Change Employers?
Yes. An alien admitted to the United States as an H-1C nonimmigrant
alien can change H-1C employers provided that the alien has not reached
the limit on his or her maximum period of stay in the United States.
The maximum period of stay for an H-1C nonimmigrant is 3 years. An H-1C
petition filed on behalf of an alien in the United States in H-1C
status may be approved for a period of time not to exceed the third
anniversary of the alien's initial admission into the United States. In
addition, H-1C petitions filed by a subsequent facility will be counted
against the numerical limitation for the state of the alien's intended
employment if the subsequent employment is in a different state.
An H-1C nonimmigrant alien may not change employers until such time
as the Service approves a new H-1C petition filed in the alien's behalf
by the new employer.
Can an H-1C Alien Complete a 3-Year Period of Stay, Depart the
United States, and Reapply for Admission as an H-1C at a Later
Date?
The statute provides that the period of admission to the United
States for H-1C nonimmigrant aliens is 3 years. The Service interprets
this 3-year period of time to represent the maximum period of admission
for an H-1C alien. The alien's maximum period of admission begins on
the date of the alien's initial admission to the United States and ends
on the third anniversary of that date. Temporary absences outside of
the United States for either business or personal reasons count towards
the alien's maximum period of admission. Once an H-1C alien has reached
the maximum period of admission in the United States, he or she is
ineligible to receive an extension of temporary stay.
Can an H-1C Alien Obtain an Extension of Temporary Stay?
Yes. While an H-1C alien should be admitted to the United States
for a maximum period of 3-years, there will be situations where an H-1C
alien may not be able to be admitted for the 3-year period of time. For
example, the alien's passport may not be valid for the required length
of time (See section 212(a)(7)(B)(I) of the Act), or the alien may not
be able to depart from his or her home country and apply for admission
to the United States on the date that the H-1C petition becomes valid.
In no situation may the alien's stay be extended beyond the third
anniversary of the alien's initial admission to the United States.
In general, all H-1C aliens should be admitted for a period of
three years, if otherwise eligible under statute and regulation. In the
case of an alien admitted to the United States for a period of time
less than 3 years, the facility may file an I-129 petition to extend
the alien's stay.
While the statute limits the period of employment for an H-1C alien
to a maximum of 3 years, an alien may work for a petitioning employer
for a period less than 3 years, depending upon the needs of the
employer and the alien.
Can an H-1C Alien Depart the United States After 3 Years and
Reapply for Admission as an H-1C Alien at a Later Date?
No. The statutory language of the NRDAA clearly limits the stay of
an H-1C alien to a period of three years. To allow an alien to
circumvent this 3-year limitation merely by leaving the United States
and immediately returning defeats the purpose of the 3-year limitation
on the alien's period of admission.
How Many H-1C Nonimmigrant Visas May Be Issued in a Fiscal Year?
The total number of H-1C nonimmigrant visas issued in each fiscal
year shall not exceed 500. This is the national cap that cannot be
exceeded in a fiscal year. In addition to the national cap of 500, the
NRDAA also imposes caps on individual states on the basis of the
state's population. The number of visas issued shall not exceed 25 for
states with populations of less than 9 million, based upon the 1990
decennial census of population, and shall not exceed 50 for states with
populations of 9 million or more. Based on the 1990 decennial census of
population, the states with populations of 9 million or more are
California, Florida, Illinois, Michigan, New York, Ohio, Pennsylvania,
and Texas.
If the total number of visas available during the first three
quarters of a fiscal year exceeds the number of qualified H-1C aliens,
the excess visas shall be allocated to states, regardless of the
states' numerical cap, during the last quarter of the fiscal year. Once
the 500 national cap has been reached, the Service will reject any new
petitions subsequently filed requesting a work start date prior to the
first day of the next fiscal year.
How Will the Allocation of Unused H-1C Visas Be Handled?
H-1C petitions will be adjudicated in order of receipt. If a state
reaches its annual cap during the first three quarters of a fiscal
year, pending H-1C petitions for employment in that state will be put
on hold until the fourth quarter of the fiscal year. If the national
500 cap has not been reached by the start of that quarter, then those
petitions that were put on hold will be adjudicated at that time.
During the final quarter of the fiscal year, all unused H-1C
nonimmigrant visas that have accrued during the previous three fiscal
year quarters will be distributed to the next approvable petition, in
order of receipt, regardless of whether the H-1C alien will be employed
in a state that has already reached its numerical cap.
If a petition is put on hold because the H-1C alien will be
employed in a state that has already reached its annual cap prior to
the fourth quarter of a fiscal year, and the Service then approves 500
petitions nationwide prior to the fourth fiscal year quarter, or prior
to adjudication of the held petition during that fiscal year, that
petition will continue to be held pending the allocation of new visas
in the next fiscal year.
The Service will publish quarterly reports concerning the number of
approved H-1C petitions, by state, on the Service's website at
uscis.gov. Again, once the 500 national cap has been reached,
the Service will reject any new petitions subsequently filed requesting
a work start date prior to the first day of the next fiscal year.
The first petition filed by a facility for an H-1C counts towards
the numerical limitation for the state of the alien's intended
employment, regardless of whether the alien was, or currently is, in H-
1C status.
Are H-1C Nonimmigrant Aliens Required To Meet Any Licensure
Requirements?
The purpose of the NRDAA is to alleviate nursing shortages in
health professional shortage areas in the United States. As such, any
alien admitted to the United States as an H-1C nonimmigrant must meet
all licensing requirements for the state of intended employment and
must continue to perform the duties of a registered nurse as an H-1C.
Facilities and nurses are expected to comply with the licensing
standards established by the state licensing board. Facilities are also
required, pursuant to
[[Page 31111]]
Sec. 214.2(h)(11)(i)(A), to notify the Service if there are any changes
in the terms or conditions of employment of the H-1C alien. The Service
must be notified when an H-1C nurse is no longer licensed as a
registered nurse in the state of employment.
How Will the Service Process Petitions That Are Revoked?
If an H-1C petition is revoked because the alien never assumed his
or her employment with the petitioning facility, that number will be
returned to the pool of unused numbers and will then be made available
to the state in which the petitioning facility is located in the final
quarter of the fiscal year in which the petition was revoked. H-1C
petitions that are revoked by the Service where the alien worked for
the petitioning facility will not be returned to the pool of unused
numbers.
Can More Than One Alien Be Included on an H-1C Petition?
Yes. The NRDAA allows for a petitioning facility to include more
than one alien nurse on a single petition.
If the number of alien nurses included in a petition exceeds the
number available for the remainder of a fiscal year, the Service shall
approve the petition for the beneficiaries to the allowable amount in
the order that they are listed on the petition. The remaining
beneficiaries will be considered for approval in the subsequent fiscal
year.
Will the H-1C Classification Expire?
Yes. The H-1C classification will expire 4 years after the date
that the regulations are first promulgated. As such, all petitions for
H-1C alien nurses must be filed by June 13, 2005. In addition, an H-1C
nurse may not be admitted to the United States beyond June 13, 2005.
Is a Facility Responsible for Paying the Alien's Return
Transportation Home If the Alien Is Dismissed by the Facility Prior
to the End of the Validity Period of the Petition?
No. Unlike the H-1B and H-2B nonimmigrant classifications, the
NRDDA does not require a facility to pay the H-1C alien's return trip
transportation home.
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based upon the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reason and necessity for immediate implementation of this interim rule
without prior notice and comment is that the NRDAA became effective
immediately upon enactment on November 12, 1999, and allows for
facilities in medically underserved areas of the United States to
petition for registered nurses. Sections 2(d) and (3) of the NRDAA,
moreover, explicitly contemplate, and so implicitly authorize, the
promulgation of this rule as an interim regulation. The Service is also
aware of the effect that delays in issuing these interim regulations
may have on public health in underserved areas of the United States.
For these reasons, the Commissioner of the Immigration and
Naturalization Service has determined that delaying the implementation
of this rule would be unnecessary and contrary to the public interest,
and that there is good cause for dispensing with the requirements of
prior notice. However, the Service invites public comment on this
interim rule and will address those comments prior to the
implementation of the final rule.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory and Flexibility Act (5 U.S.C. 605(b)),
has reviewed this regulation and, by approving it, certifies that this
rule will not have a significant economic impact on a substantial
number of small entities. This rule will facilitate the hiring of a
limited number of nonimmigrant nurses for a temporary period of time to
work in facilities serving health care professional shortage areas.
These nurses are not considered small entities as that term is defined
in 5 U.S.C. 601(6).
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 1 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 Fairness 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 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. Accordingly, this regulation has been submitted to the Office
of Management and Budget (OMB) for review.
Executive Order 13132
This regulation 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 section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information collection requirement of Form I-129 contained in
this rule previously was approved for use by the Office of Management
and Budget (OMB). The OMB control number for this collection is 1115-
0168.
This interim rule permits certain hospital facilities to file
petitions on behalf of nonimmigrant registered nurses to work in
underserved areas. In addition to the Form I-129, the petitioning
facilities also must submit other documentation, including a current
copy of the DOL's notice of acceptance of the filing of the facility's
attestation on Form ETA 9081; a statement describing any limitations
which the laws of the state or jurisdiction of intended employment
place on the alien's services; and evidence that the alien(s) named on
the petition meets the definition of a registered nurse as defined at 8
CFR 214.2(h)(3)(i)(A), and satisfies the requirements for an H-1C
nonimmigrant in section 212(m)(1) of the Act. This additional
documentation is considered an information collection.
Accordingly, the Service has submitted an information collection
[[Page 31112]]
request to the Office of Management and Budget (OMB) for emergency
review and clearance in accordance with the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). Emergency review and approval has been
granted by OMB. The emergency approval is only valid for 180 days.
All comments and suggestions, or questions regarding additional
information, to include obtaining a copy of the proposed information
collection instrument with instructions, should be directed to the
Immigration and Naturalization Service, Policy Directives and
Instructions Branch, 425 I Street, NW., Suite 4034, Washington, DC
20536; Attention: Richard A. Sloan, Director, (202) 514-3291.
We request written comments and suggestions from the public and
affected agencies concerning the proposed collection of information.
Any comments on the information collection must be submitted on or
before August 10, 2001. Your comments should address one or more of the
following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information; including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of the information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Overview of This Information Collection
(1) Type of information collection: New.
(2) Title of Form/Collection: Petitioning requirements for H-1C
nonimmigrant classification.
(3) Agency form number, if any, and the applicable component of the
Department of Justice sponsoring the collection: No form number (File
number OMB-26), Immigration and Naturalization Service.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individuals or households. Section
101(a)(15)(H)(i)(c) of Act allows petitioning hospitals to import
registered nurses to work at those hospitals as nonimmigrants. The
information collection is necessary in order for the Service to make a
determination that the eligibility requirements and conditions are met
regarding the nurse/beneficiary.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: 1,000
respondents at 2 hours per response.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Approximately 4,000 burden hours.
If additional information is required contact Richard A. Sloan,
Director, (202) 514-3291.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, 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 214.1 is amended by:
a. Removing the reference ``101(a)(15)(H)(i)(A)'' and ``H-1A'' from
the table in paragraph (a)(2);
b. Adding the reference ``101(a)(15)(H)(i)(C)'' and ``H-1C'' in
proper numerical sequence, to the table in paragraph (a)(2), and by
c. Removing the reference ``H-1A,'' in paragraph (c)(1) first
sentence.
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(2) * * *
------------------------------------------------------------------------
Section Designation
------------------------------------------------------------------------
* * * * *
101 (a) (15) (H) (I) (C)................. H-1C
* * * * *
------------------------------------------------------------------------
Sec. 214.2 [Amended]
3. Section 214.2 is amended by revising the term ``H-1A'' to read
``H-1C'' wherever that term appears in the following paragraphs:
a. Paragraph (h)(1)(i),
b. Paragraph (h)(2)(i)(D),
c. Paragraph (h)(2)(i)(E),
d. Paragraph (h)(3)(iii) introductory text,
e. Paragraphs (h)(3)(v)(B) and (h)(3)(v)(C), and
f. Paragraphs (h)(4)(v)(A), and (h)(4)(v)(D).
4. Section 214.2 is amended by revising the reference ``H-1A'' to
read ``H-1C'' in the paragraph heading for paragraphs (h)(3) and
(h)(4)(v)(D).
5. Section 214.2 is further amended by:
a. Revising the reference ``101(a)(15)(H)(i)(a)'' to read
``101(a)(15)(H)(i)(c)'' in paragraph (h)(1)(i) second sentence;
b. Revising paragraph (h)(1)(ii)(A);
c. Revising paragraph (h)(2)(i)(A);
d. Revising the term ``beneficiary's'' to read ``alien's'' in
paragraph (h)(2)(i)(E);
e. Revising paragraph (h)(2)(ii);
f. Revising paragraphs (h)(3)(i)(A), (h)(3)(i)(B), and
(h)(3)(i)(D);
g. Removing and reserving paragraph (h)(3)(ii);
h. Removing the term ``or Canada'' in paragraph (h)(3)(iii)(A);
i. Revising paragraph (h)(3)(iii)(B);
j. Revising paragraph (h)(3)(iv);
k. Revising paragraphs (h)(3)(v)(A) and (h)(3)(v)(B);
l. Removing paragraph (h)(3)(v)(D);
m. Revising paragraph (h)(3)(vi)(A);
n. Adding a new paragraph (h)(8)(i)(E);
o. Revising paragraph (h)(8)(ii)(A);
p. Adding a new paragraph (h)(8)(ii)(F);
q. Adding a new paragraph (h)(9)(iii)(D);
r. Revising paragraph (h)(13)(ii);
s. Revising the reference ``(h)(13)(ii)'' to read ``(h)(13)(iii)'',
and by removing the term ``H-1A,'' in paragraph (h)(13)(v);
t. Revising paragraph (h)(15)(ii)(A); and by
u. Revising paragraph (h)(16)(i), to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(1) * * *
(ii) * * *
(A) An H-1C classification applies to an alien who is coming
temporarily to the United States to perform services as
[[Page 31113]]
a registered nurse, meets the requirements of section 212(m)(1) of the
Act, and will perform services at a facility (as defined at section
212(m)(6) of the Act) 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 will expire 4 years from June 11, 2001.
* * * * *
(2) * * *
(i) * * *
(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. A United States employer seeking to classify
an alien as an H-1C nonimmigrant registered nurse shall file a petition
on Form I-129 at the Vermont Service Center. 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.
* * * * *
(ii) Multiple beneficiaries. More than one beneficiary may be
included in an H-1C, H-2A, H-2B, or H-3 petition if the beneficiaries
will be performing the same service, or receiving the same training,
for the same period of time, and in the same location
(3) * * *
(i) * * *
(A) For purposes of H-1C classification, the term ``registered
nurse'' means a person who is or will be authorized by a State Board of
Nursing to engage in registered nurse practice in a state or U.S.
territory or possession, and who is or will be practicing at a facility
which provides health care services.
(B) A United States employer which provides health care services is
referred to as a facility. A facility may file an H-1C petition for an
alien nurse to perform the services of a registered nurse, if the
facility meets the eligibility standards of 20 CFR 655.1111 and the
other requirements of the Department of Labor's regulations in 20 CFR
part 655, subpart L.
* * * * *
(D) A petition or application for change of status for an H-1C
nurse may be filed and adjudicated only at the Vermont Service Center.
(ii) [Reserved]
(iii) * * *
(B) Has passed the examination given by the Commission on Graduates
of Foreign Nursing Schools (CGFNS), or has obtained a full and
unrestricted (permanent) license to practice as a registered nurse in
the state of intended employment, or has obtained a full and
unrestricted (permanent) license in any state or territory of the
United States and received temporary authorization to practice as a
registered nurse in the state of intended employment; and
* * * * *
(iv) Petitioner requirements. The petitioning facility shall submit
the following with an H-1C petition:
(A) A current copy of the DOL's notice of acceptance of the filing
of its attestation on Form ETA 9081;
(B) A statement describing any limitations which the laws of the
state or jurisdiction of intended employment place on the alien's
services; and
(C) Evidence that the alien(s) named on the petition meets the
definition of a registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A),
and satisfies the requirements contained in section 212(m)(1) of the
Act.
(v) Licensure requirements.
(A) A nurse who is granted H-1C classification based on passage of
the CGFNS examination must, upon admission to the United States, be
able to obtain temporary licensure or other temporary authorization to
practice as a registered nurse from the State Board of Nursing in the
state of intended employment.
(B) An alien who was admitted as an H-1C nonimmigrant on the basis
of a temporary license or authorization to practice as a registered
nurse must comply with the licensing requirements for registered nurses
in the state of intended employment. An alien admitted as an H-1C
nonimmigrant is required to obtain a full and unrestricted license if
required by the state of intended employment. The Service must be
notified pursuant to Sec. 214.2(h)(11) when an H-1C nurse is no longer
licensed as a registered nurse in the state of intended employment.
* * * * *
(vi) * * *
(A) If the Secretary of Labor notifies the Service that a facility
which employs H-1C nonimmigrant nurses has failed to meet a condition
in its attestation, or that there was a misrepresentation of a material
fact in the attestation, the Service shall not approve petitions for H-
1C nonimmigrant nurses to be employed by the facility for a period of
at least 1 year from the date of receipt of such notice. The Secretary
of Labor shall make a recommendation with respect to the length of
debarment. If the Secretary of Labor recommends a longer period of
debarment, the Service will give considerable weight to that
recommendation.
* * * * *
(8) * * *
(i) * * *
(E) Aliens classified as H-1C nonimmigrants may not exceed 500 in a
fiscal year.
(ii) * * *
(A) Each alien issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(b), 101(a)(15)(H)(i)(c), or
101(a)(15)(H)(ii) of the Act shall be counted for purposes of the
numerical limit. Requests for petition extension or extension of an
alien's stay shall not be counted for the purpose of the numerical
limit. The spouse and children of principal aliens classified as H-4
nonimmigrants shall not be counted against the numerical limit.
* * * * *
(F) The 500 H-1C nonimmigrant visas issued each fiscal year shall
be allocated in the following manner:
(1) For each fiscal year, the number of visas issued to the states
of California, Florida, Illinois, Michigan, New York, Ohio,
Pennsylvania, and Texas shall not exceed 50 each (except as provided
for in paragraph (h)(8)(ii)(F)(3) of this section).
(2) For each fiscal year, the number of visas issued to the states
not listed in paragraph (h)(8)(ii)(F)(1) of this section shall not
exceed 25 each (except as provided for in paragraph (h)(8)(ii)(F)(3) of
this section).
(3) If the total number of visas available during the first three
quarters of a fiscal year exceeds the number of approvable H-1C
petitions during those quarters, visas may be issued during the last
quarter of the fiscal year to nurses who will be working in a state
whose cap has already been reached for that fiscal year.
(4) When an approved H-1C petition is not used because the alien(s)
does not obtain H-1C classification, e.g., the alien is never admitted
to the United States, or the alien never worked for the facility, the
facility must notify the Service according to the instructions
[[Page 31114]]
contained in paragraph (h)(11)(ii) of this section. The Service will
subtract H-1C petitions approved in the current fiscal year that are
later revoked from the total count of approved H-1C petitions, provided
that the alien never commenced employment with the facility.
(5) If the number of alien nurses included in an H-1C petition
exceeds the number available for the remainder of a fiscal year, the
Service shall approve the petition for the beneficiaries to the
allowable amount in the order that they are listed on the petition. The
remaining beneficiaries will be considered for approval in the
subsequent fiscal year.
(6) Once the 500 cap has been reached, the Service will reject any
new petitions subsequently filed requesting a work start date prior to
the first day of the next fiscal year.
(9) * * *
(iii) * * *
(D) H-1C petition for a registered nurse. An approved petition for
an alien classified under section 101(a)(15)(H)(i)(c) of the Act shall
be valid for a period of 3 years.
* * * * *
(13) * * *
(ii) H-1C limitation on admission. The maximum period of admission
for an H-1C nonimmigrant alien is 3 years. The maximum period of
admission for an H-1C alien begins on the date the H-1C alien is
admitted to the United and ends on the third anniversary of the alien's
admission date. Periods of time spent out of the United States for
business or personal reasons during the validity period of the H-1C
petition count towards the alien's maximum period of admission. When an
H-1C alien has reached the 3-year maximum period of admission, the H-1C
alien is no longer eligible for admission to the United States as an H-
1C nonimmigrant alien.
* * * * *
(15) * * *
(ii) * * *
(A) H-1C extension of stay. The maximum period of admission for an
H-1C alien is 3 years. An H-1C alien who was initially admitted to the
United States for less than 3 years may receive an extension of stay up
to the third anniversary date of his or her initial admission. An H-1C
nonimmigrant may not receive an extension of stay beyond the third
anniversary date of his or her initial admission to the United States.
* * * * *
(16) * * *
(i) H-1B or H-1C classification. The approval of a permanent labor
certification or the filing of a preference petition for an alien shall
not be a basis for denying an H-1C or H-1B petition or a request to
extend such a petition, or the alien's admission, change of status, or
extension of stay. The alien may legitimately come to the United States
for a temporary period as an H-1C or H-1B nonimmigrant and depart
voluntarily at the end of his or her authorized stay and, at the same
time, lawfully seek to become a permanent resident of the United
States.
* * * * *
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
6. 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.
Sec. 248.3 [Amended]
7. Section 248.3 is amended by revising the reference ``H-1A'' to
read ``H-1C'' in paragraph (a) first sentence.
PART 299--IMMIGRATION FORMS
8. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
9. Section 299.1 is amended in the table by revising the entry for
Form ``I-129'' to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * *
I-129....................... 12-11-91 Petition for Nonimmigrant
Worker.
* * * * *
------------------------------------------------------------------------
Dated: June 5, 2001.
Kevin D. Rooney,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-14538 Filed 6-8-01; 8:45 am]
BILLING CODE 4410-10-U