Physician J Waiver Regulation (1997)

[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               (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

[[Page 18508]]

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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