10422 Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1806–96]

RIN 1115–AD74

Processing of Certain H–1A Nurses

Under Public Law 104–302

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This interim rule amends the

Immigration and Naturalization

Service’s (the Service) regulations by

describing the procedures for an H–1A

nurse to obtain an extension of stay

based on Public Law 104–302, ‘‘[a]n Act

to extend the authorized period of stay

within the United States for certain

nurses.’’ This is necessary as a response

to concerns that certain geographical

locations in the United States continue

to experience a shortage of registered

nurses.

DATES: The interim rule is effective

March 7, 1997. Written comments must

be submitted on or before May 6, 1997.

ADDRESSES: Please submit written

comments, in triplicate to the Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference INS

number 1806–96 on your

correspondence. Comments are

available for public inspection at the

above address by calling (202) 514–3048

to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer,

Adjudications Division, Immigration

and Naturalization Service, 425 I Street,

NW., Room 3214, Washington, DC

20536, telephone (202) 514–3240.

SUPPLEMENTARY INFORMATION: The H–1A

nonimmigrant classification, which

provided for the temporary admission of

registered nurses to the United States,

expired on September 1, 1995. However,

on October 11, 1996, Congress enacted

Public Law 104–302, ‘‘[a]n Act to extend

the authorized period of stay within the

United States for certain nurses,’’ in

response to concerns that certain

geographic locations in the United

States continue to experience a shortage

of registered nurses. The legislation

provides for the granting of an extension

of stay until September 30, 1997, to

certain aliens who: (1) entered the

United States as H–1A nurses; (2) were

within the United States on or after

September 1, 1995, and who were

within the United States on October 11,

1996; and (3) whose period of

authorized stay has expired or would

expire before September 30, 1997, but

for the enactment of the legislation. This

rule will amend the Service’s regulation

at 8 CFR 214.2(h)(15)(ii)(A) to include

these requirements.

Public Law 104–302 does not provide

for the approval of new H–1A petitions

and relates solely to extensions of stay

for certain aliens who are in, or have

previously been accorded,

nonimmigrant H–1A status as registered

nurses. This rule amends the

description of the H–1A classification

found at 8 CFR 214.2(h)(1)(ii)(A) and

removes the references to the H–1A

classification at 8 CFR 214.2(h)(2)(i)(A)

and at 8 CFR 214.2(h)(9)(iii)(A) in order

to clarify these recently enacted

statutory changes. The definition of an

H–1B nonimmigrant alien found at 8

CFR 214.2(h)(1)(ii)(B) is amended to

reflect that registered nurses are no

longer statutorily excluded from the H–

1B classification due to the expiration of

the H–1A nonimmigrant classification.

The rule also amends 8 CFR

214.2(h)(2)(i)(D) and 8 CFR

214.2(h)(13)(ii) to reflect changes

affecting employers and travel

restrictions, respectively.

Eligibility

The legislation does not make

available the H–1A classification for

registered nurses seeking initial entry

into the United States but merely

provides for the extension of stay until

September 30, 1997, for those H–1A

nurses who meet the above

requirements. Under this legislation, the

Service may not approve an H–1A

petition filed on behalf of an alien who

has not previously been accorded H–1A

classification. Since the legislation was

designed solely to extend the H–1A stay

of registered nurses affected by the 1995

sunset of the H–1A classification, an

alien must have been employed in H–

1A classification as a registered nurse

on September 1, 1995, to obtain the

benefits of the legislation. An alien who

was not employed as a registered nurse

in H–1A classification on September 1,

1995, is not eligible for an extension of

temporary stay under this legislation.

Further, because Pub. L. 104–302 deals

solely with extensions of H–1A stay,

this provision does not apply to aliens

who were previously accorded H–1A

classification and subsequently obtained

a different nonimmigrant classification.

The legislation effectively overrides

the regulatory 5-year limitation of

temporary stay previously imposed by

the Service on H–1A registered nurses.

Thus, an eligible alien may seek an

extension of H–1A stay regardless of the

length of time that he or she was in the

United States in such nonimmigrant

classification. The regulation at 8 CFR

214.2(h)(13)(ii) has been amended to

reflect this change.

Filing Requirements

This interim regulation requires that

an employer seeking the services of an

H–1A registered nurse pursuant to

Public Law 104–302 file a Form I–129,

Petition for Nonimmigrant Worker, at

the appropriate Service Center to obtain

an extension of the alien’s stay in the

United States. The purpose of requiring

the filing of a petition is to ensure that

a nurse is, in fact, eligible for the

benefits of the legislation. The filing and

subsequent approval of the petition will

also provide assurance to the petitioner

that the alien’s employment will not

result in an employer sanctions

violation.

This interim rule amends 8 CFR

214.2(h)(15)(ii)(A) by providing a list of

the evidence which must be submitted

with the request for the extension of the

alien’s stay in H–1A classification. The

interim rule requires that the employer

submit evidence that the alien is

licensed to practice as a registered nurse

in the state of intended employment,

that the alien was employed as a

registered nurse on September 1, 1995,

that the alien was in the United States

on or after September 1, 1995, and, for

an alien who was no longer in status on

October 11, 1996, due to the 1995 sunset

of the H–1A classification, that the alien

was in the United States on October 11,

1996. In this regard, because the intent

of Public Law 104–302 was to avoid

disruption of much needed health care

services, the Service interprets the

requirement that an alien have been

‘‘within’’ the United States on October

11, 1996, to include H–1A registered

nurses who, although not physically

present in the United States on that

date, subsequently were readmitted to

this country pursuant to an unexpired

H–1A petition.

Affected Groups

The regulation contemplates three

separate groups of H–1A nurses who

may be affected by this legislation.

The first group of H–1A nurses is

comprise of those nurses who are

currently in a valid nonimmigrant status

but whose stay will expire prior to

September 30, 1997. The registered

nurses who meet the statutory

requirements will have their H–1A

nonimmigrant stay extended through

September 30, 1997, upon the approval

of Form I–129, Petition for
Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations 10423

Nonimmigrant Worker, filed by their

employer at the appropriate Service

Center. In accordance with 8 CFR

274a.12(b)(20), such nurses will be

authorized to continue employment

with the petitioning employer pending

Service adjudication of the petition.

The second group of H–1A nurses is

comprised of those nurses who were

employed in H–1A classification as a

registered nurse on September 1, 1995,

and whose period of authorized stay in

the United States had expired prior to

the effective date of this legislation.

Provided they meet the statutory

requirements, the H–1A stay of these

nurses shall also be extended through

September 30, 1997, upon the approval

of Form I–129 filed by their United

States employer at the appropriate

Service Center. In accordance with 8

CFR 274a.12(b)(20), such nurses will

also be authorized to continue

employment with the petitioning

employer pending Service adjudication

of the petition.

An otherwise qualified registered

nurse in this second group who was

employed in H–1A classification on

September 1, 1995, but is no longer in

a valid nonimmigrant status due to the

expiration of the H–1A classification, is

eligible for an extension of temporary

stay regardless of whether the alien

continued to work as a registered nurse

after September 1, 1995. The petition

extension may be filed by any facility as

defined in 8 CFR 214.2(h)(3)(i)(B).

Further, an alien granted an extension of

stay under this provision is considered

to have maintained a valid

nonimmigrant status through September

30, 1997, for all purposes under the

Immigration and Nationality Act, as

amended (the ‘‘INA’’).

A third group of H–1A aliens, those

whose period of authorized stay will not

expire until after September 30, 1997,

are not affected by the legislation. These

H–1A nurses may remain in the United

States until the validity of their petition

expires.

This legislation does not affect the

status of an alien who was admitted to

the United States as an H–1B

nonimmigrant alien to perform services

in the field of professional nursing.

Further, this legislation does not

preclude the Service from approving an

H–1B petition filed for a professional

nurse, if all regulatory and statutory

provisions relating to the H–1B

classification are met.

Change of Employers

Subsection (b) of the statute

specifically provides that an H–1A

nurse may not change employers in the

United States. The regulation at 8 CFR

214.2(h)(2)(i)(D) has been amended to

reflect this restriction. However, a mere

change in employer ownership or a

change in work location with the same

employer does not, for the purposes of

the H–1A classification, constitute a

change of employers.

Travel Restrictions

The legislation also provides that the

extension of the authorized period of

stay for certain nurses does not in any

way extend the H–1A alien’s visa.

Further, Public Law 104–302 does not

authorize the re-entry of any person

who was outside the United States on

the date of enactment and who was not

the beneficiary of an unexpired,

approved H–1A petition to obtain the

benefits of the legislation. Hence, an

alien who was outside the United States

on the date the legislation was enacted

and who previously held H–1A

nonimmigrant classification which has

expired is ineligible for H–1A

classification. An alien who obtains an

extension of stay based on this

legislation and subsequently departs the

United States will be required to obtain

appropriate documentation from the

Department of State in order to apply for

admission to the United States in H–1A

classification. The regulation at 8 CFR

214.2(h)(13)(ii) has been amended to

reflect this change.

Maintenance of Status

An H–1A alien who obtains an

extension of stay based on this

legislation is considered to have

maintained lawful nonimmigrant status

through September 30, 1997. This

provision also applies to the spouse and

child of the H–1A nonimmigrant alien.

The regulation at 8 CFR

214.2(h)(15)(ii)(A) has been amended to

reflect this change. Upon approval of

the extension, such persons shall be

accorded H–4 nonimmigrant status. In

addition, a spouse or child granted an

extension of stay under this section of

law is considered to have maintained a

valid nonimmigrant status for all

purposes under the INA.

This rule also amends the regulation

at 8 CFR 214.2(h)(9)(iii) to reflect a

technical change in the title of the Chief

of the Administrative Appeals Unit,

Central Office, to the Director of the

Appeals Office, Headquarters.

Good Cause Exception

This interim rule is effective on

publication in the Federal Register,

although the Service invites postpromulgation comments and will

address any such comments in a final

rule. For the following reasons, the

Service finds that good cause exists for

adopting this rule without the prior

notice and comment period ordinarily

required by 5 U.S.C. 553. First, the

provisions of Public Law 104–302

require that the Service issue

implementing regulations not later than

30 days after the date that the legislation

was enacted. As a result of this

provision, the Service does not have

sufficient time to solicit comments from

the public prior to publishing a notice

of proposed rulemaking. Second, the

Service notes that this provision is

intended solely to grant a benefit to

eligible aliens and the general public.

Regulatory Flexibility Act

The Commissioner of the Immigration

and Naturalization Service, in

accordance with the Regulatory

Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by

approving it, certifies that the rule will

not have a significant economic impact

on a substantial number of small

entities. This interim rule merely

clarifies the requirements for obtaining

an extension of stay under Public Law

104–302.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This rule is not considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review, and

the Office of Management and Budget

has waived its review process under

section 6(a)(3)(A).
10424 Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations

Executive Order 12612

The regulation proposed herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient Federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988

This interim rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 214

Adminsistrative practice and

procedures, Aliens, Employment,

Organization and functions

(Government agencies).

Accordingly, part 214 of chapter I of

title 8 of the Code of Federal

Regulations is amended as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184,

1186a, 1187, 1221, 1281, 1282; 8 CFR part 2;

2. Section 214.2 is amended by:

a. Revising paragraphs (h)(1)(ii)(A)

and (B) (1);

b. Revising paragraphs (h)(2)(i)(A) and

(D);

c. Removing paragraph (h)(9)(iii)(A);

d. Redesignating paragraphs (h)(9)(iii)

(B), (C), and (D) as paragraphs (h)(9)(iii)

(A), (B), and (C) respectively;

e. Revising paragraph (h)(13)(ii); and

by

f. Revising paragraph (h)(15)(ii)(A); to

read as follows:

§ 214.2 Special requirements for

admission, extension, and maintenance of

status.

* * * * *

(h) * * *

(1) * * *

(ii) Description of classification.

(A) An H–1A classification applies to

an alien who is coming temporarily to

the United States to perform services as

a registered nurse, meets the

requirements of section 212(m)(1) of the

Act, and will perform services at a

facility for which the Secretary of Labor

has determined and certified to the

Attorney General that an unexpired

attestation is on file and in effect under

section 212(m)(2) of the Act. This

classification expired on September 1,

1995, but certain aliens previously

accorded H–1A classification are

eligible to obtain and extension of stay

until September 30, 1997, pursuant to

Public Law 104–302.

(B) * * *

(1) To perform services in a specialty

occupation (except agricultural workers,

and aliens described in section

101(a)(15) (O) and (P) of the Act)

described in section 214(i)(1) of the Act,

that meets the requirements of section

214(i)(2) of the Act, and for whom the

Secretary of Labor has determined and

certified to the Attorney General that the

prospective employer has filed a labor

condition application under section

212(n)(1) of the Act;

* * * * *

(2)Petitions—(i) Filing of petitions—

(A) General. A United States employer

seeking to classify an alien as an H–1B,

H–2A, H–2B, or H–3 temporary

employee shall file a petition on Form

I–129, Petition for Nonimmigrant

Worker, only with the Service Center

which has jurisdiction in the area where

the alien will perform services, or

receive training, even in emergent

situations, except as provided in this

section. Petitions in Guam and the

Virgin Islands, and petitions involving

special filing situations as determined

by Service Headquarters, shall be filed

with the local Service office or a

designated Service office. The petitioner

may submit a legible photocopy of a

document in support of the visa petition

in lieu of the original document.

However, the original document shall be

submitted if requested by the Service.

* * * * *

(D) Change of employers. If the alien

is in the United States and seeks to

change employers, the prospective new

employer must file a petition on Form

I–129 requesting classification and

extension of the alien’s stay in the

United States. If the new petition is

approved, the extension of stay may be

granted for the validity of the approved

petition. The validity of the petition and

the alien’s extension of stay shall

conform to the limits on the alien’s

temporary stay that are prescribed in

paragraph (h)(13) of this section. The

alien is not authorized to begin the

employment with the new petitioner

until the petition is approved. An H–1A

nonimmigrant alien may not change

employers.

* * * * *

(13) * * *

(ii) H–1A limitation on admission. An

alien who was previously accorded H–

1A nonimmigrant status, which expired

on or before October 11, 1996, may not

be admitted to the United States after

October 11, 1996, in order to apply for

an extension of authorized stay as

provided in Public Law 104–302. Except

as provided in paragraph (15)(ii)(A) of

this subsection, and H–1A alien who

has spent 5 years in the United States

under section 101(a)(15)(H) of the Act

may not change status, or be readmitted

to the United States in any H

classification unless the alien has

resided and been physically present

outside the United States, except for

brief trips for pleasure or business, for

the immediate prior year.

* * * * *

(15) * * *

(ii) * * *

(A) H–1A extension of stay. An alien

who previously entered the United

States pursuant to an H–1A visa may

receive an extension of H–1A temporary

stay until September 30, 1997, provided

that the alien was within the United

States in valid H–1A classification on or

after September 1, 1995, regardless of

whether the alien continued to work as

a registered nurse after September 1,

1995; that the alien’s period of H–1A

temporary stay has expired or would

expire before September 30, 1997; and,

if the alien was not in valid H–1A

nonimmigrant status on October 11,

1996, that the alien was within the

United States on October 11, 1996. An

extension of stay may not be granted to

an H–1A nonimmigrant alien beyond

September 30, 1997. An H–1A alien

granted an extension of stay, and the

spouse and child of such nonimmigrant,

shall be considered to have maintained

nonimmigrant status through September

30, 1997, for all purposes under the

Immigration and Nationality Act, as

amended. Public Law 104–302 does not

apply to an H–1A alien who otherwise

failed to maintain his or her valid H–1A

nonimmigrant status or has changed

from H–1A to another nonimmigrant

status. A request for an extension of stay

for an H–1A nonimmigrant must be

filed on Form I–129, Petition for

Nonimmigrant Worker, at the

appropriate Service Center with the

following:

(1) Evidence that the alien was

employed as a registered nurse on

September 1, 1995:

(2) Evidence that the beneficiary is

licensed to practice as a registered nurse

in the state of intended employment;

(3) Evidence that the alien was within

the United States on or after September

1, 1995. For purposes of this provision,

an alien will be deemed to have been

within the United States on September

1, 1995, who, although not physically

present in the United States on that

date, was subsequently admitted to the

United States in H–1A classification

pursuant to an unexpired H–1A visa;

and
Federal Register / Vol. 62, No. 45 / Friday, March 7, 1997 / Rules and Regulations 10425

(4) If the alien was not in valid H–1A

nonimmigrant status on October 11,

1996, evidence that the alien was within

the United States on October 11, 1996.

For purposes of this provision, an alien

will be deemed to have been within the

United States on October 11, 1996, who,

although not physically present in the

United States on that date, was

subsequently admitted to the United

States in H–1A classification pursuant

to an unexpired H–1A visa.

* * * * *

§ 214.2 [Amended]

3. In § 214.2, newly redesignated

paragraph (h)(9)(iii)(B)(2)(ii) is amended

in the second sentence by revising the

phrase ‘‘Chief of the Administrative

Appeals Unit, Central Office’’ to read:

‘‘Director, Administrative Appeals

Office, Headquarters’’.

Dated: February 28, 1997.

Doris Meissner,

Commissioner, Immigration and

Naturalization Service.

[FR Doc. 97–5660 Filed 3–6–97; 8:45 am]

BILLING CODE 6560–50–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 96–ANE–44]

Removal of Class D and E Airspace;

South Weymouth, MA

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Direct final rule; confirmation of

effective date.

SUMMARY: This action removes the Class

D and Class E airspace areas at South

Weymouth, MA due to the closure of

the South Weymouth Naval Air Station

(KNZW).

EFFECTIVE DATE: This rule was effective

0901 UTC, January 30, 1997.

FOR FURTHER INFORMATION CONTACT:

Raymond Duda, Operations Branch,

ANE–530.3, Federal Aviation

Administration, 12 New England

Executive Park, Burlington, MA 01803–

5299; telephone (617) 238–7533; fax

(617) 238–7596.

SUPPLEMENTARY INFORMATION: The FAA

published this direct final with a

request for comments in the Federal

Register on December 19, 1996 (61 FR

66908). The FAA uses the direct final

rulemaking procedure for a noncontroversial rule where the FAA

believes that there will be no adverse

public comment. This direct final rule

advised the public that no adverse

comments were anticipated, and that

unless a written adverse comment, or a

written notice of intent to submit such

an adverse comment, were received

within the comment period, the

regulation would become effective on

January 30. No adverse comments were

received, and thus this notice confirms

that this final rule became effective on

that date.

Issued in Burlington, MA, on February 28,

1997.

David J. Hurley,

Manager, Air Traffic Division, New England

Region.

[FR Doc. 97–5716 Filed 3–6–97; 8:45 am]

BILLING CODE 4910–13–M

14 CFR Part 71

[Airspace Docket No. 96–ANE–46]

Amendment to Class E Airspace;

Springfield/Chicopee, MA

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Direct final rule; confirmation of

effective date.

SUMMARY: This action modifies the Class

E airspace at Springfield/Chicopee, MA

by removing the Class E airspace

extending upward from the surface,

effective during the times when the

Airport Traffic Control Tower (ATCT) is

not operating. This action results from

the elimination of continuous weather

reporting at Westover ARB/Metropolitan

Airport (KCEF).

EFFECTIVE DATE: This rule was effective

0901 UTC, January 30, 1997.

FOR FURTHER INFORMATION CONTACT:

Sandra V. Bogosian, Operations Branch,

ANE–530.4, Federal Aviation

Administration, 12 New England

Executive Park, Burlington, MA 01803–

5299; telephone (617) 238–7534; fax

(617) 238–7596.

SUPPLEMENTARY INFORMATION: The FAA

published this direct final with a

request for comments in the Federal

Register on December 19, 1996 (61 FR

66911). The FAA uses the direct final

rulemaking procedure for a noncontroversial rule where the FAA

believes that there will be no adverse

public comment. This direct final rule

advised the public that no adverse

comments were anticipated, and that

unless a written adverse comment, or a

written notice of intent to submit such

an adverse comment, were received

within the comment period, the

regulation would become effective on

January 30. No adverse comments were

received, and thus this notice confirms

that this final rule became effective on

that date.

Issued in Burlington, MA, on February 28,

1997.

David J. Hurley,

Manager, Air Traffic Division, New England

Region.

[FR Doc. 97–5714 Filed 3–6–97; 8:45 am]

BILLING CODE 4910–13–M

14 CFR Part 71

[Airspace Docket No. 97–ANE–11]

Amendment to Class E Airspace;

Nashua, NH, Newport, RI, Mansfield,

MA, Providence, RI, and Taunton, MA

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Direct final rule; request for

comments.

SUMMARY: This action modifies the Class

E airspace at Nashua, HN, Newport, RI,

Mansfield, MA, Providence, RI, and

Taunton, MA by removing from their

descriptions references to Class E

airspace areas removed by previous

actions. This action is necessary to keep

the descriptions of controlled airspace

areas operationally current.

DATES: Effective 0901 UTC, May 22,

1997.

Comments for inclusion in the Rules

Docket must be received on or before

April 7, 1997.

ADDRESSES: Send comments on the rule

to: Manager, Operations Branch, ANE–

530, Federal Aviation Administration,

Docket No. 97–ANE–11, 12 New

England Executive Park, Burlington, MA

01803–5299; telephone (617) 238–7530;

fax (617) 238–7596.

The official docket file may be

examined in the Office of the Assistant

Chief Counsel, New England Region,

ANE–7, Room 401, 12 New England

Executive Park, Burlington, MA 01803–

5299; telephone (617) 238–7050; fax

(617) 238–7055.

An informal docket may also be

examined during normal business hours

in the Air Traffic Division, Room 408,

by contacting the Manager, Operations

Branch at the first address listed above.

FOR FURTHER INFORMATION CONTACT:

Raymond Duda, Operations Branch,

ANE–530.3, Federal Aviation

Administration, 12 New England

Executive Park, Burlington, MA 01803–

5299; telephone (617) 238–7533; fax

(617) 238–7596.

SUPPLEMENTARY INFORMATION: On

February 16, 1996, the FAA published

final rule that removed the Class E

airspace at Moore Army Airfield, Fort