18506 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

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.

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 Statebased 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 HHSdesignated 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
Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations 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
18508 Federal Register / Vol. 62, No. 73 / Wednesday, April 16, 1997 / Rules and Regulations

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 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.

§ 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:

§ 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]

BILLING CODE 4410–10–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 274a

[INS 1653–94]

RIN 1115–AC72

Foreign Employers Seeking To Employ

Temporary Alien Workers in the H, O,

and P Nonimmigrant Classifications

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the

Immigration and Naturalization Service

(the Service) regulations by precluding

foreign employers from directly filing

petitions for O and P nonimmigrant

aliens. Prospective foreign employers

seeking to file petitions in these two

classifications will be required to use

the services of an agent in the United

States. This rule also amends the H

nonimmigrant regulations by requiring

foreign employers seeking to petition for

H–2B nonimmigrant aliens to use the

services of an agent in the United States,

removes the current reference to the

term ‘‘representative’’ from the H–2B

regulations, expands the definition of an

agent with respect to the H, O, and P

nonimmigrant classifications, and

codifies existing policy with regard to

the filing of nonimmigrant petitions for

certain professional athletes. This rule

brings the H, O, and P nonimmigrant

regulations into conformity with the

employer sanctions provisions of

section 274A of the Immigration and

Nationality Act (‘‘the Act’’).

EFFECTIVE DATE: April 16, 1997.

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

employer sanctions provisions of the

Immigration and Nationality Act were

created by the Immigration Reform and

Control Act of 1986, Public Law 99–603,

and are codified in section 274A of the

Act, as amended. Among other things,

section 274A of the Act contains

provisions making it unlawful for a

person or entity to hire an alien

knowing the alien is not entitled to

engage in employment. Section 274A of

the Act also requires the employer to

examine certain documentation in order

to verify an individual’s identity and

eligibility to work in the United States.

Civil and criminal penalties may be

imposed upon employers who do not