Temporary Alien Workers Seeking H Classification for the Purpose of Obtaining Graduate Medical Education or Training

SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service (Service) regulations with regards to the treatment of certain

foreign medical graduates seeking nonimmigrant classification under the

H-1B classification as amended by the Miscellaneous and Technical

Immigration and Naturalization Amendments of 1991 (MTINA). This rule

will prohibit a foreign medical graduate from seeking H-1B

classification for the purpose of taking a medical residency in the

United States. It will also modify the eligibility standards for

foreign medical graduates and clarify for businesses and the general

public the requirements for medical graduates' classification and

admission.

DATES: Written comments must be submitted on or before September 12,

1994.

ADDRESSES: Please submit written comments, in triplicate, to the

Records Systems Division, 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

the INS number 1654-94 on your correspondence.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Senior Immigration Examiner, Adjudications Division,

Immigration and Naturalization Service, 425 I Street, NW., room 7215,

Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: Prior to the enactment of the Immigration

Act of 1990 (IMMACT), Public Law 101-649, with certain limited

exceptions, graduates of foreign medical schools seeking to come to the

United States to perform services in the medical professions could

obtain H-1B classification only if they were coming pursuant to an

invitation from a public or nonprofit private educational or research

institution or agency to teach or conduct research, or both, at or for

such an institution or agency. This requirement was deleted by Public

Law 101-649 which allowed for the admission of foreign medical

graduates under the H-1B nonimmigrant classification to perform any and

all services, including direct patient care, in the medical

professions.

The Miscellaneous and Technical Immigration and Naturalization

Amendments of 1991, Public Law 102-232, December 12, 1991, established,

among other things, new criteria for the admission of foreign educated

physicians coming to the United States to perform services in the

medical professions. Public Law 102-232 amended section 212(j)(2) of

the Act to provide that these aliens could obtain H-1B classification

in either of two ways as follows:

First, (mirroring the pre-IMMACT language), an alien can be

accorded H-1B classification if the alien is coming to the United

States pursuant to an invitation from a public or nonprofit private

educational or research institution or agency to teach or conduct

research, or both, at or for such institution or agency.

Second, an alien may be accorded H-1B classification if he or she

has passed the Federation Licensing Examination (FLEX) or an equivalent

examination as determined by the Secretary of Health and Human

Services. Eligibility under this criterion also requires a

demonstration that the alien has competency in oral and written English

or that the alien has graduated from a school of medicine accredited by

a body or bodies approved for that purpose by the Secretary of

Education.

Since the enactment of MTINA, a number of questions have been

raised concerning the legality of graduates of foreign medical schools

taking graduate medical education or training, also known as

residencies or internships, as H-1B nonimmigrant aliens. It has been

argued that a medical residency constitutes ``services in the medical

professions'' since a portion of the residency involves providing

direct patient care. It has also been argued that a medical residency

meets the definition of the term ``specialty occupation'' as contained

in section 214(i)(1) of the Act since the position requires the

theoretical and practical application of a body of highly specialized

knowledge, and a bachelor's or higher degree in the specific specialty

is a minimum requirement for entry into the occupation.

It is the opinion of the Service that Congress did not intend the

H-1B nonimmigrant classification to be utilized by graduates of foreign

medical schools coming to the United States to undertake medical

residencies or otherwise receive graduate medical education or

training. The Service believes that graduates of medical schools coming

to the United States to take medical residencies or otherwise receive

graduate medical education or training must seek classification as J-1

nonimmigrant aliens.

The rationale behind this opinion requires an examination of the

prior legislation in this area. Congress enacted the Health

Professionals Education Assistance Act of 1976 (HPEAA), Public Law 94-

484, in response to a number of problems with foreign medical graduates

in the United States. This legislation established the J-1

classification as the sole vehicle for graduates of medical schools to

obtain graduate medical education or training in the United States,

which clearly includes medical residencies. See sections 101(a)(15)(J)

and 212(j)(1) of the Act; see also pre-IMMACT section 101(a)(15)(H)(i)

of the Act. Section 212(j)(1) of the Act describes the various

requirements for foreign medical graduates coming to the United States

to receive graduate medical education or training. Although sections

303(a)(5) (A) and (B) of MTINA provided an avenue for foreign medical

graduates to enter the United States in H-1B status to perform services

in the medical professions by amending sections 101(a)(15)(H)(i)(b) and

212(j)(2) of the Act, MTINA did not alter the requirements for graduate

medical education or training contained in section 212(j)(1) of the

Act. It is our opinion that Congress would not place in juxtaposition

two such clearly different statutory provisions as section 212(j)(1)

and section 212(j)(2) of the Act if it intended the H-1B and J-1

classifications to overlap with respect to foreign medical graduates

seeking graduate medical education or training.

Nothing in the legislative history of either IMMACT of MTINA

indicates that Congress intended graduates of medical schools to obtain

graduate medical education or training under the H-1B classification.

In the absence of clear legislative language to the contrary, it is the

opinion of the Service that graduates of foreign medical schools must

utilize the J-1 classification to undertake medical residencies.

Therefore, those aliens who were previously accorded H-1B

classification in order to take a medical residency will be required to

seek a change of nonimmigrant classification to that of the J-1

nonimmigrant alien.

This rule proposes to amend paragraph (h)(2)(ii) by removing the

last two sentences of the paragraph. The change will allow a petitioner

to file a single petition for multiple beneficiaries even when the

beneficiaries on the petition will be applying for visas at more than

one consulate or port-of-entry. Under the prior regulation, the Service

required separate petitions for the beneficiaries where the aliens

desired to apply for nonimmigrant visas at different consulates or

where the alien beneficiaries were going to seek entry at more than one

port-of-entry. This proposed revision will save petitioners the time

and expense of filing multiple petitions for a group of aliens since,

under the proposed rule, only a single petition will be required. The

Service will, of course, notify each consular post or port-of-entry

listed on the petition of the approval of the petition. The other

requirements of the paragraph, i.e., that the aliens will be performing

the same service or receiving the same training, for the same period of

time and in the same location, have not been changed.

This rule also proposes to amend paragraph (h)(13)(iv), which

discusses the limitations on admission for H-2B and H-3 nonimmigrant

aliens, by adding a sentence differentiating between an H-3 alien

trainee and an H-3 participant in a ``special education exchange

visitor program.'' As contained in the previous regulation, any H-3

alien who had spent 18 months in the United States as an H or L

nonimmigrant alien could not seek extension, change status, or be

readmitted to the United States unless the alien had spent 6 months

outside the United States. This paragraph is inconsistent with

paragraph (h)(9)(iii)(D)(1) which provides that an H-3 petition for an

alien trainee shall be valid for a period of two years.

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. The regulation merely clarifies certain provisions of

the MTINA relating to physicians desiring to take medical residencies

in this country and modifies certain filing procedures for petitions to

reduce filing fees.

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).

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 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has addressed this rule in light of the criteria in

Executive Order 12606 and has determined that it will have no effect on

family well-being.

List of Subjects in 8 CFR Part 214

Administrative 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 proposed to be 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, 1221, 1281,

1282; 8 CFR part 2.

2. Section 214.2 is amended by:

a. Revising paragraph (h)(2)(ii);

b. Adding paragraph (h)(4)(viii)(D); and by

c. Revising paragraph (h)(13)(iv), to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(2) * * *

(ii) Multiple beneficiaries. More than one beneficiary may be

included in an 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.

* * * * *

(4) * * *

(viii) * * *

(D) Aliens coming to the United States to receive graduate medical

education or training. Aliens coming to the United States to receive

graduate medical education or training are not eligible for H-1B

classification. Such aliens must seek classification pursuant to

section 101(a)(15)(J) of the Act.

* * * * *

(13) * * *

(iv) H-2B and H-3 limitation on admission. An H-2B alien who has

spent three years in the United States under section 101(a)(15) (H)

and/or (L) of the Act; an H-3 alien participant in a special education

program who has spent 18 months in the United States under section

101(a)(15) (H) and/or (L) of the Act; and an H-3 alien trainee who has

spent 24 months in the United States under section 101(a)(15) (H) and/

or (L) of the Act may not seek extension, change status, or be

readmitted to the United States under section 101(a)(15) (H) and/or (L)

of the Act unless the alien has resided and been physically present

outside the United States for the immediate prior six months.

* * * * *

Dated: June 9, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-17009 Filed 7-13-94; 8:45 am]

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