[Federal Register: April 16, 1997 (Volume 62, Number 73)]
[Rules and Regulations]               
[Page 18506-18508]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap97_dat-2]


[[Page 18506]]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212, 245, and 248

[INS No. 1688-95]
RIN 1115-AD89

 
Waiver of the Two-Year Home Country Physical Presence Requirement 
for Certain Foreign Medical Graduates

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule amends the Immigration and Naturalization 
Service (Service) regulations relating to waivers of the 2-year home 
country residence and physical presence requirement (2-year 
requirement) pursuant to a request by a State Department of Public 
Health, or its equivalent. These waivers are intended to ease health 
care shortages by allowing certain foreign medical graduates (FMGs) to 
work at health care facilities located in geographic areas designated 
by the Secretary of Health and Human Services (HHS) as having a 
shortage of health care professionals (HHS-designated shortage areas).

EFFECTIVE DATE:  April 16, 1997.

FOR FURTHER INFORMATION CONTACT:
Sophia Cox, Adjudications Officer, Adjudications Division, Immigration 
and Naturalization Service, 425 I Street, NW., Room 3214, Washington, 
DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: On October 25, 1994, Congress enacted the 
Immigration and Nationality Technical Corrections Act of 1994 (the 1994 
Technical Corrections Act), Pub. L. 103-416, 108 Stat. 4310, 4319-4320. 
Section 220 of the 1994 Technical Corrections Act amended section 
212(e) of the Immigration and Nationality Act (Act) to allow a State 
Department of Public Health (or its equivalent), in addition to a 
United States Government agency, to request the United States 
Information Agency (USIA) to recommend a waiver of the 2-year 
requirement for a J-1 foreign medical graduate.
    Section 220(c) of the 1994 Technical Corrections act provides that 
the statutory amendments to section 212(e) of the Act enabling a State 
Department of Public Health to submit waiver requests directly to USIA 
for FMGs practicing medicine in HHS-designated shortage areas applies 
to aliens admitted to the United States in J-1 status, or who acquire 
J-1 status after admission before, on, or after the enactment, and 
before June 1, 1996. In an interim rule, published in the Federal 
Register on May 18, 1995, at 60 FR 26676, the Service interpreted this 
provision to mean that any FMG who entered the United States in J-1 
status or acquired J-1 status upon arrival to pursue graduate medical 
education or training before June 1, 1996, is eligible to apply for a 
waiver based on a request by a State Departments of Public Health, and 
for subsequent change of nonimmigrant status to H-1B, if eligible.
    In addition, section 220 of the 1994 Technical Corrections Act 
created a new section 214(k) of the Act, setting forth the terms and 
conditions imposed on State-based waivers. These terms and conditions 
include, among other things, that the FMG:
    (1) Submit to USIA a ``no objection'' statement from the government 
of his or her home country, if he or she is contractually obligated to 
return to that country;
    (2) Demonstrate an offer of full-time employment at a health care 
facility located in an HHS-designated shortage area and agree to begin 
employment within 90 days of receiving the waiver approval;
    (3) Agree to practice medicine for that health care facility for at 
least 3 years; and
    (4) Agree to practice medicine only in HHS-designated shortage 
areas during this 3-year period. The statute limits the number of 
State-based waivers that can be granted to each State to 20 per fiscal 
year.
    In addition to stipulating the terms and conditions attached to the 
waiver, section 214(k) of the Act also eased the change of status 
restrictions under section 248(2) of the Act, to allow an FMG who has 
been granted a State-based waiver to apply for change of status from J-
1 to H-1B, provided the remaining eligibility criteria have been 
satisfied. By implication, under this statutory provision, the FMG's 
dependent spouse and children, if otherwise eligible, may apply for 
change of nonimmigrant status from J-2 to H-4. This provision, however, 
does not ease the annual numerical limitations imposed on the H-1B 
specialty occupation worker category under section 214(g)(1)(A) of the 
Act. Therefore, the Service would be statutorily precluded from 
according H-1B status to an EMG if the annual numerical limitation 
imposed on the issuance of H-1B visas under section 214(g)(1)(A) of the 
Act were reached.
    As explained in the preamble to the interim rule, the FMG must 
fulfill the required 3-year employment contract as an H-1B. This 
provision is consistent with Congress' intent that the FMG fulfill the 
3-year employment contract before applying for change of status to L or 
another H nonimmigrant classification, for adjustment of status or for 
an immigrant visa. In addition, this regulatory provision allows the 
Service to maintain control over the FMG's stay in the United States by 
ensuring compliance with the conditions imposed on the waiver under 
section 214(k) of the Act.
    An FMG who does not fulfill the terms and conditions of the waiver 
imposed under section 214(k) of the Act again becomes subject to the 2-
year requirement under section 212(e) of the Act. Consequently, the FMG 
becomes ineligible to apply for an immigrant visa, permanent residence, 
or for any other change of nonimmigrant status until he or she has 
resided and been physically present in his or her country of 
nationality or last residence for an aggregate of 2 years following 
departure from the United States. The Attorney General may excuse early 
termination of the FMG's employment due to extenuating circumstances, 
which may include hardship to the FMG or the closure of the facility. 
In order to avoid resubjecting himself or herself to the 2-year 
requirement, the FMG, however, should be prepared to submit an 
employment contract for the balance of the required 3-year period with 
another health care facility in an HHS-designated shortage area.
    On May 18, 1995, the Service published an interim rule in the 
Federal Register implementing section 220 of the Technical Corrections 
Act, and requested public comment. See 60 FR 26676-26683. The public 
comment period ended on July 17, 1995. The Service received only two 
comments in response to the interim rule. In general, one commenter 
stated the rule is helpful to FMGs, and the other stated that it is 
contrary to immigration reform efforts.

Discussion of Comments

    One commeter supported the waiver policy as promulgated in the 
Service's interim rule, and noted that the newly created State-based 
waivers are helpful to FMGs in psychiatric residencies, because they 
will assist our country in meeting it needs for psychiatrists and other 
medical specialists in work force shortage areas.
    The other commenter disagreed with the Service's interim rule, on 
the ground that it was contrary to the recommendations of the U.S. 
Commission on Immigration Reform to curtail the levels of immigration 
to the United States. The Service lacks discretion in this regard. The 
purpose of the interim rule was solely to implement section 220 of the 
Technical

[[Page 18507]]

Corrections Act, in a manner consistent with Congressional intent. The 
rule was based on an express statutory amendment that expanded eligible 
212(e) waiver recommending agencies to include State Departments of 
Public Health, and incorporates statutory terms and conditions to the 
waiver so as to ensure that the public receives the intended benefit.

Developments Following Publication of the Interim Rule

    In the preamble to the interm rule, the Service clarified the terms 
``FMG,'' ``State Department of Public Health, or its equivalent,'' and 
``HHS-designated shortage area,'' and discussed a broad range of 
issues. Subsequent to the publication of the interim rule, there were 
policy developments concerning what constitutes an ``HHS-designated 
shortage area,'' and what is meant by the term ``contractually 
obligated,'' for purposes of determining whether a ``no objection'' 
statement is required. The Service does not believe it is necessary to 
incorporate these policy developments into the final regulation itself. 
In addition, the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA) redesignated section 214(k) of the 
Act as section 214(l) of the Act, and amended the 1994 Technical 
Corrections Act to extend the State-based waiver program and impose 
terms and conditions on FMGs granted waivers of the 2-year requirement 
based on a request by a U.S. Government agency. The developments that 
occurred following publication of the Service's interim rule are 
summarized immediately below.

HHS-Designated Shortage Areas

    Section 214(l)(1)(C) of the Act provides that the FMG must agree to 
practice medicine in accordance with section 214(l)(2) of the Act for 
at least 3 years ``only in the geographic area or areas which are 
designated by the Secretary of Health and Human Services as having a 
shortage of health care professionals.'' In the preamble to the interim 
rule, the Service stated that it is bound by HHS' determination of what 
constitutes an HHS-designated shortage area.
    Subsequent to the publication Service's interim rule, HHS published 
a notice in the Federal Register on September 19, 1995, at 60 FR 48515-
48516. This notice stated that both Health Professional Shortage Areas 
(HPSAs) and Medically Underserved Areas/Medically Underserved 
Populations (MUAs/MUPs) are geographic areas having a shortage of 
health care professionals for purposes of State-based waivers of the 2-
year requirement. As section 214(l)(1)(C) of the Act assigns authority 
to HHS to designate health care shortage areas, HPSAs and MUAs/MUPs 
shall be deemed designated shortage areas for purposes of State-based 
waivers under section 212(e) of the Act until such a time as HHS 
further revises or amends the designations.

No Objection Statements

    On the issue of ``no objection'' statements, the Service noted that 
section 214(l)(1)(A) of the Act provides that ``in the case of an alien 
who is otherwise contractually obligated to return to a foreign 
country, the government of such country [must] furnish [ ] the Director 
of the United States Information Agency with a statement in writing 
that it has no objection to the waiver.'' This requirement applies only 
in the case of State-based waivers under section 212(e) of the Act.
    Following the publication of the Service's interim rule, USIA 
clarified the term ``otherwise contractually obligated'' for purposes 
of determining when a ``no objection'' statement is required in its 
final rule implementing section 220 of the Technical Corrections Act. 
See 60 FR 53122-53126 (October 12, 1995). The USIA's final rule 
provides that the term ``otherwise contractually obligated * * *'' 
refers only to those FMGs whose medical education or training has been 
funded by the government of his or her home country. Since the Service 
may not grant a section 212(e) waiver without the favorable 
recommendation of the USIA, the Service defers to the USIA with respect 
to the proper interpretation of the term ``otherwise contractually 
obligated * * *'' in determining when a ``no objection statement'' is 
required.

IIRIRA Changes

    On September 30, 1996, the President signed the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208. 
Section 622(a) of IIRIRA amended section 220(c) of the 1994 Technical 
Corrections Act to extend the State-based waiver program until June 1, 
2002. Therefore, the regulation will be amended at 8 CFR 
212.7(c)(9)(i)(A) to reflect the FMGs who entered the United States in 
J-1 status or acquired J-1 status upon arrival before June 1, 2002, may 
apply for a waiver based on a request by a State Department of Public 
Health. This amendment is made to ensure the regulation reflects the 
correct expiration date of the State-based waiver program. This change 
became effective on September 30, 1996, the IIRIRA enactment date. 
Because section 622(a) of IIRIRA amended section 220(c) of the 1994 
Technical Corrections Act, the enabling legislation, there effectively 
has not been any interruption in the State-based waiver program. See 
Trichilo v. Secretary of Health and Human Services, 825 F.2d 702, 705-
07 (2d Cir. 1987).
    In addition, sections 622 (b) and (c) of IIRIRA amended section 
214(k) of the Act to impose new terms and conditions on waivers of the 
2-year requirement granted to FMGs based on a request by an interested 
Federal agency. These statutory changes will be implemented in a 
separate rulemaking. While sections 622 (b) and (c) of IIRIRA 96 Act 
amended section 214(k) of the Act, section (a)(3)(A) of the 96 Act 
subsequently redesignated section 214(k) of the Act as section 214(l) 
of the Act, which unintentionally resulted in two different sections 
214(l) of the Act, as section 625 of the 96 Act also created a section 
214(l) of the Act to impose new terms and conditions on F-1 academic 
students. The Service is seeking a technical correction to resolve this 
discrepancy.

Effective Date of Final Rule

    Since the two technical changes resulting from section 622 of the 
96 Act, relating to the extension of the eligibility date from June 1, 
1996, to June 1, 2002, and the redesignation of section 214(k) of the 
Act as section 214(l) of the Act, became effective on September 30, 
1996, the Service feels that ``good cause'' exists under 5 U.S.C. 
553(d)(3) to have this final rule become effective upon date of 
publication in the Federal Register.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this 
final rule will not have a significant economic impact on a substantial 
number of small entities because only 20 waivers are authorized per 
State annually to FMGs under Pub. L. 103-416.

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, it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the

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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 final 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).

Executive Order 12988

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

Executive Order 12612

    This regulation will not have a substantial direct effect on the 
States, on the relationships between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. It merely implements section 220 of Pub. 
L. 103-416, which grants the States, in limited circumstances, the 
authority to submit requests for waiver recommendations to the Director 
of the USIA on behalf of certain foreign medical graduates. Therefore, 
in accordance with E.O. 12612, it is determined that this rule does not 
have sufficient Federalism implications to warrant the preparation of a 
Federalism Assessment.

List of Subjects

8 CFR Part 212

    Administration practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 8 CFR parts 212, 245 and 
248, which was published at 60 FR 26676-26683 on May 18, 1995, is 
adopted as a final rule with the following changes:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.


Sec. 212.7  [Amended]

    2. Section 212.7 is amended in the fifth sentence of paragraph 
(c)(9) introductory text, by revising the reference to ``section 214(k) 
of the Act'' to read: ``section 214(l) of the Act (as redesignated by 
section 671(a)(3)(A) of Pub. L. 104-208)''.
    3. Section 212.7 is amended by revising the reference to ``section 
214(k)'' to read: ``section 214(l)'' wherever it appears in the 
following paragraphs:
    a. Paragraph (c)(9)(iv); and
    b. Paragraph (c)(9)(vi).
    3. Section 212.7 is amended by revising the reference to ``section 
214(k)(1)(B)'' to read: ``section 214(l)(1)(B)'' in the first sentence 
of the unnumbered paragraph immediately after paragraph (c)(9)(iv).
    4. Section 212.7 is amended by revising paragraph (c)(9)(i)(A), to 
read as follows:


Sec. 212.7  Waiver of certain grounds of excludability.

* * * * *
    (c) * * *
    (9) * * *
    (i) * * *
    (A) They were admitted to the United States under section 
101(a)(15)(J) of the Act, or acquired J nonimmigrant status before June 
1, 2002, to pursue graduate medical education or training in the United 
States.
* * * * *
    Dated: February 26, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-9831 Filed 4-15-97; 8:45 am]
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