Admission of Certain Nurses Seeking Nonimmigrant Classification Under the H-1A Category

DEPARTMENT OF JUSTICE

8 CFR Part 214

[INS 1663-94]

RIN 1115-AD74

Admission of Certain Nurses Seeking Nonimmigrant Classification

Under the H-1A Category

agency: Immigration and Naturalization Service, Justice.

action: Interim rule with request for comments.

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summary: This rule amends the Immigration and Naturalization Service

(Service) regulations with regards to the admission of certain nurses

seeking nonimmigrant classification under the H-1A classification. This

rule is necessary because of a change in the method that the National

Council of State Boards of Nursing employs in administering the

permanent state licensure examination (NCLEX). In response to this

change in testing procedures, this rule provides that nurses entering

the United States on the basis of a temporary license issued by the

state of intended employment must pass the NCLEX within six months

after the date of their initial admission to the United States. The

rule also clarifies for businesses and the general public the

requirements for the admission of foreign nurses into the United

States.

dates: This interim rule is effective October 7, 1994.

Written comments must be submitted on or before December 6, 1994.

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 the INS number 1663-

94 on your correspondence.

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: Section 212(m)(1) of the Immigration and

Nationality Act (Act) describes the qualifications necessary for an

alien to obtain classification as an H-1A registered nurse. The Act

requires, among other things, that the nurse must have either: (1) a

full and unrestricted license to practice professional nursing in the

state of intended employment or (2) have passed an approximate

examination (under current 8 CFR 214.2 (h)(3)(iii), the examination

given by the Commission on Graduates of Foreign Nursing Schools

(CGFNS)) and have a temporary license for the state of intended

employment. Under the current regulations, a foreign nurse who is

accorded H-1A status based on a temporary license after passage of the

CGFNS is required to sit and pass the first available permanent state

licensing examination.

Prior to April 1, 1994, the permanent state licensing examination

was given twice a year, in February and July. Under current 8 CFR

214.2(h)(3)(v)(B), a nurse admitted in H-1 classification based on

passage of the CGFNS examination and temporary licensure who fails the

permanent state licensing examination or fails to sit for the first

available permanent licensing examination is no longer eligible for H-

1A status. On April 1, 1994, however, the National Council of State

Boards of Nursing altered its testing procedures and now offers the

permanent state licensing examination on a walk-in basis, six days a

week. Thus, the current regulatory requirement that the alien sit and

pass the first available state nursing examination is no longer

appropriate since the test is now available to the nurse immediately

upon entry into the United States.

In order to provide a nurse with sufficient time to acclimate

himself or herself to the country and to prepare for the examination,

the Service has determined that a nurse who has been accorded H-1A

status on the basis of a temporary license shall be granted a period of

six months after the date of entry to sit and pass the permanent state

licensing examination. After passage of the permanent state licensing

examination, the alien's employer must file an application to extend

the stay of the alien. At the time of the application for extension of

stay, the alien's employer must demonstrate that the alien has remained

in H-1A status continuously from the time of his or her admission by

submitting evidence reflecting that the alien has been employed

continuously as a registered professional nurse since entry. An alien

who does not pass the permanent state licensing examination with six

months of his or her admission or fails to maintain a valid H-1A status

is not eligible for a further extension of stay.

Despite these changes, petitions for H-1A aliens entering the

United States based on a temporary license will continue to be approved

for a period not to exceed one year. Further, an H-1A alien shall be

admitted to the United States for the validity of the supporting

petition.

The Service's implementation of this rule as an interim rule, with

provisions for post-promulgation public comment, is based upon the

``good cause'' exception found at 5 U.S.C. 553(d)(3). Because of

changes in the National Council of State Boards of Nursing testing

procedures, immediate implementation of the interim rule is necessary

to ensure foreign nurses admitted to the U.S. in H-1A status based on

possession of temporary licenses an adequate and realistic period of

time to prepare for the permanent state licensing examination and

therefore, continued eligibility for H-1A classification.

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 modifies certain filing

procedures for petitions for foreign nurses to make them consistent

with industry practices.

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 assessed 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 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 paragraph (h)(3)(iii)(C);

b. Revising paragraph (h)(3)(v)(B);

c. Revising paragraph (h)(3)(v)(C); and by

d. Revising paragraph (h)(15)(ii)(A); to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * * *

(h) * * *

(3) * * *

(iii) * * *

(C) Is fully qualified and eligible under the laws (including such

temporary or interim licensing requirements which authorize the nurse

to be employed) governing the place of intended employment to practice

as a registered nurse immediately upon admission to the United States,

and is authorized under such laws to be employed by the employer. For

purposes of this paragraph, the temporary or interim licensing may be

obtained immediately after the alien enters the United States.

* * * * *

(v) * * *

(B) After admission to the United States, an H-1A nurse who does

not hold a permanent state license must take and pass the examination

for state licensure as a registered nurse within six months from the

date of his or her initial admission to the United States. After this

six-month period of time, the nurse must be granted permanent state

licensure in order to maintain his or her eligibility for H-1A

classification in the state of employment or any other state or

territory of the United States.

(C) A nurse shall automatically lose his or her eligibility for H-

1A classification if he or she is no longer performing the duties of a

registered professional nurse. Such a nurse is not authorized to remain

in employment unless he or she otherwise receives authorization from

the Service.

* * * * *

(15) * * *

(ii) Extension periods--(A) H-1A extension of stay. An extension of

stay may be authorized for a period of up to two years for a

beneficiary of an H-1A petition. The alien's total period of stay may

not exceed five years, except in extraordinary circumstances. An H-1A

alien who has been in the United States for a period of five years in

such status may receive a one-year extension of stay if it is

established by the petitioner that extraordinary circumstances exist

which warrant such an extension. Extraordinary circumstances shall

exist when the director finds that termination of the alien's services

will impose extreme hardship on the petitioner's business operation or

that the alien's services are required in the national welfare, safety,

or security interests of the United States. Each request for an

extension of stay for the beneficiary of an H-1A petition must be

accompanied by a current copy of the Department of Labor's notice of

acceptance of the petitioner's attestation on Form ETA 9029. A request

for an extension of stay filed in behalf of an alien who initially

entered the United States on the basis of a temporary license must be

accompanied by evidence that the alien has remained in a valid H-1A

status since his or her initial entry into the United States.

* * * * *

Dated: September 16, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-24882 Filed 10-6-94; 8:45 am]

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