Temporary Alien Workers Seeking H-1B Classification Under the Immigration and Nationality Act

DEPARTMENT OF JUSTICE

8 CFR Part 214

[INS 1452-92]

RIN 1115-AC72

Temporary Alien Workers Seeking H-1B Classification Under the

Immigration and Nationality Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule implements certain provisions of the

Miscellaneous and Technical Immigration and Naturalization Amendments

of 1991 (MTINA) by establishing petitioning procedures for H-1B

nonimmigrants and new eligibility criteria for foreign physicians

seeking employment in the medical professions in the United States.

This rule contains the new procedures required by the legislation and

makes Service policy consistent with the intent of Congress. This rule

sets forth the new filing procedures and eligibility standards and

clarifies for businesses, academic institutions, and the general public

the requirements for classification and admission under section

101(a)(15)(H) of the Immigration and Nationality Act (ACT).

EFFECTIVE DATE: January 11, 1994.

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: The Immigration Act of 1990 (IMMACT), Public

Law 101-649, November 29, 1990, dramatically altered the H-1B

nonimmigrant classification. IMMACT, among other things, removed

prominent aliens from the H-1B nonimmigrant classification and required

prospective employers to obtain an approved labor condition application

from the Department of Labor prior to the admission of the H-1B

nonimmigrant into the United States.

In response to concerns raised by a number of interested parties,

Congress incorporated numerous provisions in the Miscellaneous and

Technical Immigration and Naturalization Amendments of 1991, Public Law

102-232, December 12, 1991, which amended some of the provisions

created by IMMACT. Specifically, Public Law 102-232 amended the

definition of an H-1B nonimmigrant alien by removing the requirement

that the intending employer obtain an approved labor condition

application prior to the alien's admission into the United States,

amended the criteria which the Secretary of Labor could use in invoking

the penalty provisions relating to misrepresentations and omissions on

the labor condition application, and, lastly, addressed the issue of

foreign physicians coming to the United States to perform services in

the medical profession.

On April 9, 1992, the Service published in the Federal Register at

57 FR 12177, an interim rule with requests for comments to incorporate

the changes contained in Public Law 102-232. Interested persons were

invited to submit written comments on or before June 8, 1992.

Discussion of Comments on the Interim Regulations

The Service received comments from sixteen individuals on the

interim rule. Some of the commenters addressed more than one issue in

their comments. A number of commenters offered suggestions and

improvements for the final rule, many of which have been adopted in the

final rule. The following discussion addresses the issues raised,

provides the Service's position on the issues, and, indicates the

revisions adopted in the final rule based on the public's comments.

Labor Condition Application--Sec. 214.2(h)(4)(i)(B)(1)

Prior to the passage of Public Law 102-232, petitioners in H-1B

cases were required to submit a copy of an approved labor condition

application with the petition. Public Law 102-232 amended this language

by requiring only that petitioners attach a certification from the

Secretary of Labor indicating that the petitioner has filed a labor

condition application with the Secretary of Labor. The interim rule

contained language reflecting this amendment to the statute.

One commenter suggested that a petitioner could meet this statutory

requirement by merely submitting a copy of the labor condition

application without waiting for the Department of Labor to certify the

labor condition application. However, submitting a copy of the labor

condition application is not sufficient to show that the application

has been filed. Only when the application has been certified can the

Service be assured that the petitioner has complied with the filing

requirement. Therefore, the Service did not adopt this recommendation.

One commenter noted that IMMACT imposed a number of penalties on

employers who failed to meet certain conditions of the labor condition

application process. Section 212(n)(2)(C)(ii) of the Act states that in

those situations the Attorney General shall not approve petitions filed

by the offending employer under section 204 or 214(c) of the Act for a

period of one year. The commenter noted that Sec. 214.2(h)(4)(i)(B)(5)

of the interim regulation indicated only that the Attorney General

shall not approve petitions under the H-1B category. In response to

this comment the final rule will be amended to indicate that this

provision applies to petitions filed under both sections 204 and 214(c)

of the Act as required by statute.

Return Transportation Provision--Sec. 214.2(h)(4)(iii)(E) and

Sec. 214.2(h)(6)(vi)(E)

One commenter suggested that petitioners in H-1B and H-2B cases

should be required to post a bond in order to prove to the Service that

the return transportation requirement will be met. It is the opinion of

the Service that the statute and regulations clearly state the

requirement that a petitioner in these instances is responsible for the

alien beneficiary's return transportation. The filing of the petition

is sufficient assurance to the Service that the petitioner will comply

with this requirement.

Criteria and Documentary Requirements for Physicians--

Sec. 214.2(h)(4)(viii)

Prior to the passage of IMMACT, alien graduates of foreign medical

schools were excluded from classification as H-1B nonimmigrants unless

they were 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. These physicians were not authorized to perform

direct patient care unless it was incidental to the teaching or

research. This restriction, however, was not contained in IMMACT,

thereby allowing graduates of foreign medical schools to perform direct

patient care in the United States.

Public Law 102-232 addressed the issue of foreign physicians coming

to the United States to perform services in the medical profession. The

legislation provided that these aliens could obtain H-1B classification

in either of two ways.

First (mirroring the pre-IMMACT statutory language), an alien may

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.

In the preamble to the interim rule, it was stated that there was

no distinction between alien physicians educated in the United States

and those educated abroad and that both had to pass the Federation

Licensing Examination (FLEX) in order to be classified as an H-1B

nonimmigrant in order to perform direct patient care.

Three commenters stated that the FLEX requirement should not be

applicable to alien graduates of United States medical schools since,

over the previous decade, the Service has consistently permitted these

aliens to engage in direct patient care under the H-1B classification.

These commenters also noted that graduates of United States medical

schools are not normally required to take the FLEX examination as part

of their training and licensing requirements.

Subsequent to the publication of the interim rule, the Service

altered its position on this issue, reaffirming that the FLEX

requirement did not apply to aliens educated at United States medical

schools. This position now will be codified in the final rule. It

should be noted, however, that the FLEX requirement does apply to

aliens educated in foreign medical schools, including schools in

Canada. The final rule will be amended to reflect the Service's present

position.

Two commenters noted that aliens of national or international

renown in the field of medicine, pursuant to section 101(a)(41) of the

Act, are not considered graduates of a medical school and should be

exempt for the FLEX requirement. The Service agrees with this comment

and the final rule will be amended to indicate that aliens of national

or international renown in the field of medicine are exempt from the

FLEX requirement as well as the other requirements set forth in section

212(j)(2) of the Act. They are, however, required to meet the licensure

requirements for the state of intended employment.

Equivalency to the FLEX

Public Law 102-232 provides that alien physicians who wish to

perform patient care in the United States must, among other things,

pass the FLEX examination or an equivalent examination as determined by

the Secretary of Health and Human Services. By notice published on

September 16, 1992 at 57 FR 42755, the Secretary of Health and Human

Services designated Parts I, II, and III of the National Board of

Medical Examiners certifying examinations and the Steps 1, 2, and 3

examinations of the United States Medical Licensing Examinations

program as equivalent to the FLEX.

Six commenters suggested that the Licentiate of the Medical Council

of Canada (LMCC), the Canadian medical licensing procedure, or a State

license should also be determined to be equivalent to the FLEX. A

determination that the LMCC or a state license is equivalent to the

FLEX is outside the scope of the Service's authority.

Competency in the English Language

Public Law 102-232 also requires that graduates of medical schools

coming to the United States to perform services in the medical

professions must demonstrate competency in oral and written English or

be a graduate of a school of medicine accredited by a body or bodies

approved for that purpose by the Secretary of Education. The interim

rule contains the requirement that a petitioner may demonstrate English

competency by submitting evidence that the alien has passed the English

test given by the Educational Commission for Foreign Medical Graduates

(ECFMG). The interim regulation did not contain any additional tests or

mechanisms to establish competency in the English language but it was

stated in the preamble to the interim rule that the Service would

consider other suggestions to demonstrate competency.

Two commenters suggested that the Test of English as a Foreign

Language (TOEFL) should be recognized as an alternate test to establish

English competency. Since the results of the TOEFL are reported as a

raw score which must be interpreted by the entity reviewing the score,

and the administrators of the test have not established a passing grade

for the test, the Service cannot adopt this suggestion since it does

not have the expertise or resources to interpret this test.

Two commenters also suggested that the Service recognize that

graduates of medical schools located in an English-speaking country in

which the language of instruction is also English have competency in

the English language. Since the statutory language already addresses

the issue of language competency in relation to graduation from certain

universities, the adoption of this suggestion would be in conflict with

the statutory language.

Licensure

The interim rule requires that a petition for a physician coming to

the United States to perform services in the medical profession must be

accompanied by evidence that the physician has a license or

authorization required by the State of intended employment, if the

state requires such license or authorization. This language was adopted

to ensure that at the time the petition was filed the physician and met

the regulatory requirements relating to the practice of medicine in the

state of intended employment. The regulation also recognizes that, in

certain instances, a state may not require a physician to obtain an

actual medical license in order to perform the duties of a particular

position.

Two commenters suggested that the regulations of the state of

intended employment should dictate which type of license, if any,

should be required by the Service. This suggested regulatory change is

unnecessary since it is already provided for in the language of the

interim rule at Sec. 214.2(h)(4)(viii)(A)(1).

One commenter also noted that certain physicians employer by the

United States government, such as the Veterans Administration, are not

required to possess a license issued by the state of intended

employment hut merely require a license from any state. The final rule

has been amended to accommodate this situation.

One commenter suggested that an alien physician should not be

required to obtain a medical license if the alien is not coming to the

United States to perform patient care. As written, the interim rule

requires that licensure must be obtained only in those situations where

the alien beneficiary will be performing clinical care. An alien

physician coming to fill a position which does not normally require

licensure, e.g., medical research, would not be required to obtain a

license. Thus, this suggestion need not be adopted.

Approval and Validity of Petitions--Sec. 214.2(h)(9)(iii)(B)

The initial approval of an H-1B petition is currently limited to

three years. One commenter suggested that H-1B petitions should be

approved for the validity period of the supporting labor condition

application, not to exceed six years. The Service does not deem it

appropriate to consider extending the initial validity period of H-1B

petitions without first soliciting public comment on the issue. This

issue will be addressed in a future proposed rule.

In accordance with 5 U.S.C. 605(b), the Commissioner of the

Immigration and Naturalization Service certifies that this rule does

not have a significant adverse economic impact on a substantial number

of small entities. This rule merely clarifies provisions of the MTINA

which establish certain new petitioning procedures for H-1B

nonimmigrants and new eligibility criteria for foreign physicians

seeking employment in the medical profession in this country, and

therefore has a de minimus economic impact on small entities. This rule

is not considered to be significant within section 3(f) of E.O. 12866,

nor does this rule have Federalism implications warranting the

preparation of a Federalism Assessment in accordance with E.O. 12612.

List of Subjects in 8 CFR Part 214

Administrative practice and procedures, Aliens, Employment,

Organization and functions (Government agencies).

Accordingly, the Interim Rule amending 8 CFR part 214 which was

published at 57 FR 12177-12179 on April 9, 1992, is adopted as a final

rule with the following changes:

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)(1)(ii)(B)(1);

b. Revising paragraph (h)(4)(i)(B)(5);

c. Revising paragraph (h)(4)(viii)(A)(1);

d. Revising paragraph (h)(4)(viii)(B)(2); and

e. Adding paragraph (h)(4)(viii)(C) to read as follows:

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(1) * * *

(ii) * * *

(B) * * *

(1) To perform services in a specialty occupation (except

registered nurses, 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;

* * * * *

(4) * * *

(i) * * *

(B) * * *

(5) If the Secretary of Labor notifies the Service that the

petitioning employer has failed to meet a condition of paragraph (B) of

section 212(n)(1) of the Act, has substantially failed to meet a

condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has

willfully failed to meet a condition of paragraph (A) of section

212(n)(1) of the Act, or has misrepresented any material fact in the

application, the Service shall not approve petitions filed with respect

to that employer under section 204 or 214(c) of the Act for a period of

at least one year from the date of receipt of such notice.

* * * * *

(viii) * * *

(A) * * *

(1) Has a license or other authorization required by the state of

intended employment to practice medicine, or is exempt by law

therefrom, if the physician will perform direct patient care and the

state requires the license or authorization, and

* * * * *

(B) * * *

(2) The alien has passed the Federation Licensing Examination (or

an equivalent examination as determined by the Secretary of Health and

Human Services) or is a graduate of a United States medical school; and

(i) Has competency in oral and written English which shall be

demonstrated by the passage of the English language proficiency test

given by the Educational Commission for Foreign Medical Graduates; or

(ii) Is a graduate of a school of medicine accredited by a body or

bodies approved for that purpose by the Secretary of Education.

(C) Exception for physicians of national or international renown. A

physician who is a graduate of a medical school in a foreign state and

who is of national or international renown in the field of medicine is

exempt from the requirements of paragraph (h)(4)(viii)(B) of this

section.

* * * * *

Sec. 214.2 [Amended]

3. In Sec. 214.2, paragraph (h)(2)(i)(B) is amended by removing the

last sentence.

Dated: January 6, 1994.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 94-569 Filed 1-10-94; 8:45 am]

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