Waiver of the Two-Year Home Country Physical Presence Requirement for Certain Foreign Medical Graduates

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: Interim rule with request for comments.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(Service) regulations by allowing certain foreign medical graduates who

entered the United States in J-1 status, or who acquired J-1 status

after arrival in the United States, to obtain a waiver of the 2-year

home country residence and physical presence requirement under section

212(e)(iii) of the Immigration and Nationality Act (Act) pursuant to a

request by a State Department of Public Health, or its equivalent. The

waiver is intended to permit these foreign medical graduates to work at

a health care facility in an area designated by the Secretary, Health

and Human Services (HHS), as having a shortage of health care

professionals (``HHS-designated shortage area''). This interim rule

also contains provisions which will permit these foreign medical

graduates to change their nonimmigrant status in the United States from

J-1 exchange visitor to H-1B specialty occupation worker.

DATES: This interim rule is effective May 18, 1995. Written comments

must be received on or before July 17, 1995.

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 1688-95

on your correspondence. Comments are available for public inspection at

this location by calling (202) 514-3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT:

Sophia Cox, Senior Adjudications Officer, Adjudications Division,

Immigration and Naturalization Service, 425 I Street NW., Room 3214,

Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

Under section 212(e) of the Act, certain J-1 exchange visitors (and

their J-2 dependent spouse and children) are subject to a 2-year home

country residence and physical presence requirement (the ``2-year

requirement''). Exchange visitors (and dependents) who are subject to

this requirement must reside and be physically present in their country

of nationality or last residence abroad (``home'' country) for an

aggregate of at least 2 years following departure from the United

States. J-1/J-2 exchange visitors who are subject to the 2-year

requirement are not allowed to change their nonimmigrant status to, or

be admitted to the United States under the H (temporary worker or

trainee) or L (intracompany transferee) nonimmigrant categories, or

acquire lawful permanent resident status, unless they have complied

with this requirement or have been granted a waiver thereof.

The following categories of exchange visitors (and their

accompanying spouse and children in dependent J-2 status) are subject

to the 2-year requirement: (a) Those whose J-1 program was financed in

whole or in part by an agency of the U.S. Government, or by the

government of their ``home'' country; (b) those whose field of

specialized knowledge or skill, as indicated on Form IAP-66

(Certificate of Eligibility), is required in their home country; and

(c) those who entered the United States in J-1 status (or who acquired

J-1 status subsequent to arrival in the United States) to receive

graduate medical education or training.

Under section 212(e) of the Act, a waiver of the 2-year requirement

may be granted by the Service upon the favorable recommendation of the

Director of the United States Information Agency (USIA). Waivers can be

obtained on the basis of: (a) Exceptional hardship to the applicant's

U.S. citizen or permanent resident [[Page 26677]] spouse or children;

(b) persecution on account of race, religion, or political opinion; (c)

a ``no objection'' statement issued by the applicant's ``home''

country; or (d) a request made to USIA by an interested U.S. Government

agency to recommend a waiver to the Service, because the applicant's

work is deemed to serve the public interest. By statute, in the case of

foreign medical graduates who entered the United States to receive

graduate medical education or training (and accompanying J-2

dependents), a ``no objection'' statement does not constitute a basis

for USIA to recommend a waiver to the Service. Therefore, even if a

``no objection'' statement on behalf of such a foreign medical graduate

has been issued, the Service is statutorily required to deny the waiver

application, if such a statement forms the only basis for the waiver

request.

A substantial number of foreign medical graduates pursue waivers of

the 2-year requirement through requests by an interested U.S.

Government agency. Prior to the enactment of section 220 of the

Immigration and Nationality Technical Corrections Act of 1994 (1994

Technical Corrections Act), Pub. L. 103-416, 108 Stat. 4310, 4319-4320,

dated October 25, 1994, only Federal Government agencies were

considered to be an ``interested United States Government agency''

eligible to submit a waiver request to USIA on behalf of a J-1 exchange

visitor. Because State governments were not permitted to act as

interested government agencies, they were required to solicit the

assistance of an appropriate Federal agency. Section 212(e)(iii) of the

Act, as amended by section 220(b) of the 1994 Technical Corrections

Act, now permits State Departments of Public Health, or their

equivalent, to submit waiver requests for foreign medical graduates

directly to USIA, provided that certain conditions have been met, as

explained below.

As noted, under section 212(e) of the Act, the Service may not

approve the applicant's waiver request unless the Director of the USIA

has issued a favorable waiver recommendation. If USIA issues a

favorable waiver recommendation, it notifies the Service thereof.

Section 212(e) of the Act permits, but does not require, the Attorney

General to grant the waiver pursuant to a favorable USIA

recommendation. On the other hand, if USIA issues an unfavorable waiver

recommendation, the Service must deny the waiver application. The

Service's decision to deny the application may not be appealed, if the

denial is based on lack of a favorable USIA waiver recommendation.

Section 212(e) waivers are valid only for those exchange programs

indicated in the waiver request. Any subsequent J program extension or

program transfer may re-subject the exchange visitor (and his or her

dependents) to the 2-year requirement.

Under current procedures, an application form is not required when

the waiver application is based on an interested U.S. Government agency

request or a no objection statement. Similarly, a form will not be

required to apply for a waiver based on a request by a State Department

of Public Health. The Service is in the process of developing an

omnibus form to be used for all waiver applications, including waivers

of the 2-year requirement. It should be noted that the burden rests on

the applicant to establish eligibility for a waiver of the 2-year

requirement. In certain cases, therefore, the Service may require other

documentation from the applicant besides the favorable USIA

recommendation to fully assess his or her waiver eligibility.

After the Service approves an application for a waiver of the 2-

year requirement, the J-1 exchange visitor may seek H nonimmigrant

status in order to engage in temporary employment for the organization

or entity named in the waiver application. Foreign medical graduates

who wish to work temporarily in the Unites States once a waiver of the

2-year requirement has been granted may seek H-1B classification as a

specialty occupation worker. An alien may obtain H-1B status either

through the simultaneous filing of an H-1B petition by the prospective

employer and a change of status application by the alien, if the alien

is in the United States, or through the filing of an H-1B petition

alone and the alien subsequently obtaining the visa at a consular post

abroad. Change of status applications are governed by section 248 of

the Act. To request a change of nonimmigrant status from J-1 to H-1B, a

change of status application must be filed simultaneously with the H-1B

nonimmigrant visa petition, if the applicant is eligible. Once the H-1B

petition and change of status application are approved, the alien will

be permitted to remain in the United States and commence temporary

employment with the employer or organization named in the approved H-1B

petition.

As 8 CFR 248.2(c) currently reads, foreign medical graduates (and

their dependents) who entered the United States on J-1 visas (or who

acquired J-1 status after admission) to pursue graduate medical

education or training are ineligible to apply for change of status

under section 248 of the Act, even if a waiver of the 2-year

requirement has been granted. This interim regulation revises 8 CFR

248.2(c) to conform with section 220 of the 1994 Technical Corrections

Act. Accordingly, this interim regulation provides that foreign medical

graduates who received a waiver of the 2-year requirement pursuant to a

request by a State Department of Public Health, or its equivalent, may

apply for change of status from J-1 to H-1B, if they other wise satisfy

the change of status criteria found under section 248 of the Act.

Public Law 103-416

Section 220 of the 1994 Technical Corrections Act, enacted on

October 25, 1994, permits the Service to grant a waiver of the 2-year

requirement to a limited number of foreign medical graduates who have

received a bona fide offer of full-time employment and who agree to

practice medicine at a health care facility located in an HHS-

designated shortage area. Any foreign medical graduate who is subject

to the 2-year requirement, and who meets the eligibility criteria, may

apply for a waiver under Pub. L. 103-416, regardless of whether he or

she is physically present in the United States.

To be eligible for the waiver, the foreign medical graduate must

enter into an employment contract to practice medicine full-time for at

least 3 years at a health care facility located in the HHS-designated

shortage area, and must agree to commence such employment within 90

days of receipt of the waiver. The Service may grant the waiver only if

the Department of Public Health, or its equivalent, of the State where

the foreign medical graduate will be employed, submits a formal request

to USIA for a waiver recommendation, and USIA submits a favorable

waiver recommendation to the Service. Although the State Department of

Public Health, or its equivalent, must request the waiver on behalf of

the foreign medical graduate, the health care facility at which the

foreign medical graduate will work need not actually be owned or

operated by the State.

The Service notes that section 220 of Pub. L. 103-416 does not

expressly waive the 2-year requirement for the accompanying spouse or

children of the foreign medical graduate. Longstanding Service policy,

however, permits J-1 exchange visitors to include their J-2 dependent

spouse and children in the waiver application. Consequently, a foreign

medical graduate seeking a waiver of the 2-year requirement under

section 220 of Pub. L. 103-416 shall be [[Page 26678]] permitted to

include his or her accompanying J-2 spouse and children in the waiver

application.

Foreign Medical Graduate

In the context of this interim rule, a foreign medical graduate

refers specifically to a foreign national who has graduated from a

medical school outside of the United States, and who acquired J-1

status to pursue graduate medical education or training in the United

States. Foreign medical graduates seeking J-1 classification to pursue

graduate medical education or training in the United States are subject

to strict requirements set forth in section 212(j)(1) of the Act, and

are subject to the 2-year requirement.

State Department of Public Health, or its Equivalent

Section 220 of Pub. L. 103-416 amends section 212(e)(iii) of the

Act by permitting State Departments of Public Health (or their

equivalent), in addition to U.S. Federal Government agencies, to submit

requests for waiver recommendations directly to USIA on behalf of

foreign medical graduates. Section 101(a)(36) of the Act defines the

term ``State'' to include the District of Columbia, Puerto Rico, Guam,

and the U.S. Virgin Islands, in addition to the 50 states. The same

definition will apply to the term ``State'' in this rule. Further, it

is the opinion of the Service that the statutory term ``State

Department of Public Health, or its equivalent'' means the State agency

or department that is responsible for public health issues, regardless

of what the actual name of that agency or department is under State

law.

Restrictions Imposed on the Waiver and the Change of Status Application

Section 214(k) of the Act, as added by section 220 of Pub. L. 103-

416, imposes restrictions on waivers of the 2-year requirement for

foreign medical graduates, when the application is based on a request

by a State Department of Public Health, or its equivalent. By imposing

conditions under section 214(k) of the Act, Congress manifested its

intent that waivers of the 2-year requirement be granted only under

strictly limited and controlled circumstances.

No objection statements. Section 214(k)(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.'' The

foreign medical graduate seeking the waiver is responsible for ensuring

that the ``no objection'' statement is provided directly to USIA. This

additional requirement applies only when the foreign medical graduate

seeks a waiver of the 2-year requirement pursuant to a request by a

State Department of Public Health (or its equivalent). USIA addresses

the question of what constitutes a contractual obligation in the

preamble to its interim rule amending 22 CFR 514.44(e)(2), which was

published in the Federal Register on April 3, 1995, at 60 FR 16785-

16788.

Employment contracts. Section 214(k)(1)(B) of the Act provides that

the Service may grant a waiver of the 2-year requirement based on a

request by a State Department of Public Health only if the foreign

medical graduate demonstrates a bona fide offer of full-time employment

at a health facility and agrees to begin such employment within 90 days

of receipt of the waiver. Section 214(k)(1)(B) of the Act also provides

that the foreign medical graduate must agree to continue working at the

health care facility named in the employment contract for at least 3

years. Such employment must be in accordance with the provisions of

section 214(k)(2) of the Act. The USIA's implementing regulations at 22

CFR 514.44(e)(3)(B) therefore provide that the State Department of

Public Health is required to submit the actual contract between the

alien and the health care facility at the time the request for the

favorable recommendation is made.

HHS-designated shortage areas. Section 214(k)(1)(C) of the Act

provides that the foreign medical graduate must agree to practice

medicine in accordance with section 214(k)(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.'' Since the Service is bound by HHS'

determination of what constitutes a ``geographic area or areas * * *

having a shortage of health care professionals,'' the request of a

State Department of Public Health (or its equivalent), standing alone,

cannot be deemed sufficient to meet his statutory requirement. The

waiver application must be accompanied by evidence establishing that

the geographic area or areas in which the foreign medical graduate will

practice medicine are in HHS-designated shortage areas.

Numerical limitations on waivers under Pub. L. 103-416. Section

214(k)(1)(D) of the Act limits to 20-per-state the number of waivers

the Service may grant under Pub. L. 103-416 each fiscal year.

Consequently, if the Director of USIA issues a favorable waiver

recommendation under Pub. L. 103-416, but the State requesting the

waiver already has exhausted its annual waiver allotment, the Service

is statutorily required to deny the waiver application. Accordingly,

this rule provides that no appeal shall lie where the basis for denial

is that the State has already been granted 20 waivers for that fiscal

year.

Completion of the required 3-year employment contract as an H-1B

nonimmigrant and change of nonimmigrant status from J-1 to H-1B. The

restrictions imposed by Congress under section 214(k)(1) and (2) of the

Act were intended to ensure that waivers of the 2-year requirement

under Pub. L. 103-416 are granted only under strictly limited and

controlled circumstances. These restrictions were also intended to

ensure that foreign medical graduates who receive such a waiver

actually provide health care services to those living HHS-designated

shortage ares.

Under section 248(2) of the Act, a foreign medical graduate who

came to the United States in J classification or acquired J

classification in order to receive graduate medical education or

training would normally be prohibited from filing an application for

change of status. Section 214(k)(2)(A) of the Act, as added by section

220 of Pub. L. 103-416, however, provides that ``notwithstanding

section 248(2), the Attorney General may change the status of an alien

that qualifies under this subsection and section 212(e) to that of an

alien described in section 101(a)(15)(i)(b).'' Section 214(k)(2) of the

Act, as added by section 220 of Pub. L. 103-416 also states that no

foreign medical graduate who has been granted a waiver and a change of

nonimmigrant status from J-1 to H-1B, and who has failed to complete

the 3-year employment contract with the sponsoring health care

facility, shall be eligible to apply for an immigrant visa, for

permanent residence, or for change of status to any other nonimmigrant

category, until it has been established that he or she has resided and

been physically present in his or her home country for an aggregate of

2 years following departure from the United States. Thus, section

212(k)(2) of the Act allows the foreign medical graduate to apply for

change of nonimmigrant status from J-1, only to H-1B upon approval of

the waiver, and also stipulates that a foreign medical graduate who

fails to fulfill the required 3-year employment contract again becomes

subject to the 2-year requirement. Taken together, these two provisions

indicate that Congress [[Page 26679]] did not intend to permit the

foreign medical graduate to proceed from J-1 status directly to lawful

permanent resident status upon approval of the waiver.

Based on the above, the Service is of the opinion that, in enacting

section 214(k) of the Act, Congress manifested its clear intent to

require all foreign medical graduates, including those seeking to

adjust their status or immigrate to this country, as well as those

immediately changing status from J-1 to H-1B, to fulfill the 3-year

employment contract or become subject to the 2-year requirement. To

enable the Service to maintain control over the foreign medical

graduate's stay in the United States in the manner intended by

Congress, this interim rule provides that the foreign medical graduate

must actually fulfill the contract with the health care facility named

in the waiver application prior to obtaining permanent residence, or

any nonimmigrant status other than H-1B. Accordingly, this interim

regulation provides that a foreign medical graduate who received a

waiver of the 2-year requirement under Pub. L. 103-416 may not apply

for a change of status to another nonimmigrant category, for an

immigrant visa, or for status as a lawful permanent resident prior to

completing the required 3-year employment contract as an H-1B

nonimmigrant with the health care facility named in the waiver

application.

Eligibility to apply for change of status from J-1 to H-1B. While

section 214(k)(2)(A) of the Act allows foreign medical graduates who

received a waiver under Pub. L. 103-416 to apply for change of status

from J-1 to H-1B (and their dependents from J-2 to H-4), it does not

excuse the late filing of the application. Foreign medical graduates

who have been granted a waiver of the 2-year requirement under Pub. L.

103-416, must be in valid J status when the change of status

application is filed. Service regulations at 8 CFR 214.2(j)(1)(ii)

provide that J-1 exchange visitors may be admitted to the United States

for the duration of the exchange program, as noted on Form IAP-66, and

an additional 30 days for travel. While J-1 exchange visitors are not

authorized to work during this 30-day grace period (see

Sec. 274a.12(b)(11)), they are considered to be ``in status'' for

purposes of applying for change of status under section 248 of the Act.

To prevent the foreign medical graduate from falling out of lawful

nonimmigrant status, the Service encourages the State Department of

Public Health to allow ample time for processing the waiver and

subsequent filing and processing of the H-1B petition and change of

status application. Foreign medical graduates who received a waiver

under section 220 of Pub. L. 103-416 and whose J nonimmigrant stay has

expired, or who have engaged in unauthorized employment, are ineligible

to apply for change of status under section 248 of the Act. Such

persons would not be precluded, however, from procuring an H-1B visa at

a U.S. consular post abroad and seeking readmission to the United

States in H-1B status to commence employment with the sponsoring health

care facility.

Numerical limitations imposed on the issuance of H-1B visas.

Although section 214(k)(2)(A) of the Act eases the change of status

restrictions under section 248(2) of the Act, it does not ease the

annual numerical limitations imposed on the H-1B specialty worker

category under section 214(g)(1)(A) of the Act. Consequently, the

Service would not be prohibited from granting a waiver of the 2-year

requirement under Pub. L. 103-416, but would be statutorily prohibited

from according H-1B status to the foreign medical graduate, if the

annual numerical limitations imposed on the issuance of H-1B visas

under section 214(g)(1)(A) of the Act have been reached.

Control measures to be implemented by the Service. As noted,

waivers of the 2-year requirement pursuant to Pub. L. 103-416 are based

on the premise that the foreign medical graduate's work at a health

care facility will assist States in coping with health care shortages.

To ensure compliance with section 214(k) of the Act, and to ensure that

the public receives the intended benefit, the Service will implement

the following measures.

The Form I-797 (Notice of Action) (including I-797A and I-797B)

currently used to notify the alien of the approved waiver and/or change

of status from J-1 to H-1B, if applicable, will explicitly state the

terms and conditions of the waiver and change of status. To facilitate

issuance of the H-1B visa abroad, or admission as an H-1B nonimmigrant

at the port-of-entry in cases where the foreign medical graduate is

ineligible or chooses not to apply for change of status, the H-1B

approval notice shall indicate that he or she has obtained the

necessary waiver under Pub. L. 103-416. Such notification serves two

purposes. It ensures that the foreign medical graduate is made fully

aware of the terms and conditions of his or her waiver and change of

status. It also alerts the Service officer or State Health Department

that special conditions have been placed on the alien's nonimmigrant

status, thereby enabling the officer to take whatever steps are

necessary to ensure that the alien's file is noted accordingly. When

the foreign medical graduate's Form I-797 is later presented in support

of an application for another benefit, such as an amended H-1B

petition, a new H-1B petition for a different employer, or an

adjustment of status application, the adjudicating officer will again

be alerted to the special conditions that have been placed on the

alien's nonimmigrant status. As a result, the Service will be able to

verify whether the terms and conditions imposed under section 214(k) of

the Act have been satisfied. These control measures are reflected in

this interim rule at 8 CFR 212.7(c)(9)(ii).

Inability To Fulfill the Three-Year Employment Contract Due to

Extenuating Circumstances

New section 214(k)(1)(B) of the Act grants the Attorney General

discretion to excuse early termination of employment upon determining

that extenuating circumstances so justify. The statute provides that

extenuating circumstances may include the closure of the health care

facility or hardship to the alien.

In determining whether to excuse the foreign medical graduate's

early termination of employment with the health care facility named in

the waiver application, the Service will carefully consider whether,

based on all the facts before it, excusing such early termination would

be consistent with the purpose of the statute--provision of health care

services for at least a 3-year period of time in an HHS-designated

shortage area. Closure of the facility, for example, could, under

certain circumstances, warrant excusing failure to fulfill the 3-year

employment contract, provided that the foreign medical graduate can

establish that he or she has procured employment for the balance of the

3-year period with another health care facility in an HHS-designated

shortage area. Similarly, an alien who claims that his or her inability

to fulfill the 3-year employment contract is due to hardship shall also

be required to submit evidence of new employment for another health

care facility in an HHS-designated shortage area. A foreign medical

graduate who seeks to establish extenuating circumstances on the basis

of hardship also must submit evidence that the hardship was caused by

unforeseen circumstances beyond his or her control. In short, before

the Service will consider excusing the foreign medical graduate's early

termination of [[Page 26680]] the 3-year employment contract with the

health care facility named in the waiver application due to extenuating

circumstances, the alien must submit an employment contract for the

balance of this period with another health care facility in an HHS-

designated shortage area. See section 214(k)(3) of the Act (the foreign

medical graduate may only work in HHS-designated shortage areas during

the required 3-year period of employment following approval of the

waiver).

Changes in Employment During the Required Three-Year Period Following

Approval of the Waiver

Any material change in the alien's H-1B employment must be reported

to the Service by filing either an amended H-1B petition indicating any

changes in the terms and conditions of the alien's current H-1B

employment, or by filing a new petition if the alien seeks to change H-

1B employers, in the manner generally required under current

regulations at 8 CFR 214.2(h)(2)(i) (D) and (E), and 8 CFR

214.2(h)(11).

An amended H-1B petition for a foreign medical graduate who has

been granted a waiver of the 2-year requirement under Pub. L. 103-416

shall be accompanied by evidence that he or she will continue

practicing medicine in an HHS-designated shortage area for the health

care facility named in the waiver application and in the original H-1B

petition.

A foreign medical graduate who has been granted a waiver of the 2-

year requirement under Pub. L. 103-416, who has not fulfilled the 3-

year employment contract with the health care facility named in the

waiver application, and who seeks to change H-1B employers due to

extenuating circumstances or hardship is responsible for ensuring that

the new health care facility files an H-1B petition. In such cases, the

new petition shall be accompanied by a copy of Form I-797 (or I-797A or

I-797B, as appropriate) relating to the original H-1B petition and an

explanation from the alien, with supporting evidence, establishing that

extenuating circumstances or hardship necessitate a change in

employment. The new H-1B petition shall also be accompanied by an

employment contract showing that the alien will practice medicine at

the health care facility for the balance of the required 3-year period,

and evidence that the geographic area or areas of intended employment

designated in the new H-1B petition are in an HHS-designated shortage

area.

The Service may consult with the Secretary of HHS to verify whether

the area of intended employment specified in the new H-1B petition is

in fact located in an HHS-designated shortage area. Further, in

exercising its statutory discretion to excuse an alien's failure to

complete the requisite 3-year employment contract, the Service, if it

deems appropriate, may consult with USIA, the State Department of

Public Health which initiated the waiver request, and the health care

facility named in the original waiver application.

If, in the exercise of its discretion, the Service determines that

extenuating circumstances or hardship exist, that employment will

continue at a health care facility in an HHS-designated shortage area,

and that both the new petitioner and the beneficiary have otherwise

satisfied the H-1B eligibility criteria enumerated under 8 CFR

214.2(h), the new petition may be approved, and the foreign medical

graduate may be permitted to serve the balance of the 3-year employment

period at the health care facility named in the new H-1B petition.

Effect of Failure To Abide by the Terms and Conditions of the Waiver

Granted Under Pub. L. 103-416

Section 241(a)(1)(C)(i) of the Act provides for the deportation of

any alien admitted as a nonimmigrant who fails to: (a) Maintain the

nonimmigrant status under which he or she was admitted; (b) fails to

maintain the nonimmigrant status to which he or she was changed under

section 248 of the Act; or (c) fails to comply with the conditions of

any such nonimmigrant status. J-1 foreign medical graduates who do not

fulfill the 3-year employment contract for the health care facility

named in the waiver application (unless the Attorney General has

determined there are extenuating circumstances or hardship to the

alien), who do not work in HHS-designated shortage areas, or who change

employment without permission from the Service, will be deemed not to

be maintaining their nonimmigrant status or complying with the terms

and conditions imposed upon the waiver and change of status

application, and will therefore be deportable under section

241(a)(1)(C)(i) of the Act.

Application Period

Section 220(c) of Pub. L. 103-416 states that the statutory

amendments to section 212(e) of the Act shall apply to aliens admitted

to the United states under section 101(a)(15)(J) of the Act, or who

acquire J status after admission to the Unites States before, on, or

after the date of enactment, and before June 1, 1996. Consistent with

Congress' intent to relieve health care shortages in HHS-designated

shortage areas, the Service interprets this provision to mean that any

foreign medical graduate who entered the United States in J

nonimmigrant status, or who acquired J status upon arrival to pursue

graduate medical education or training, before June 1, 1996, is

eligible to apply for a waiver of the 2-year requirement pursuant to

section 220 of Pub. L. 103-416, and for subsequent change of

nonimmigrant status to H-1B. Further, if the foreign medical graduate

acquired J status before June 1, 1996, in order to pursue graduate

medical education or training, he or she will be eligible to request a

section 220 waiver, even if the training is completed after June 1,

1996.

Foreign medical graduates who acquire J nonimmigrant status to

pursue graduate medical education or training on or after June 1, 1996,

however, will not be eligible to apply for benefits under Pub. L. 103-

416, even if they wish to practice medicine in an HHS-designated

shortage area. Those foreign medical graduates may, however, pursue a

non-section 220 waiver under section 212(e) of the Act.

Good Cause Exception

This interim rule is effective on publication in the Federal

Register although the Service invites post-promulgation 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. The provisions of Pub. L. 103-416, which provide a great

public benefit, are already in effect. Adopting this rule without prior

notice and comment allows foreign medical graduates whose J status is

about to expire to apply for the waiver as soon as possible, thereby

avoiding potential interruption of their lawful status during the

normal notice and comment period. The rule also enables State

Departments of Public Health to seek immediately the assistance of

certain foreign medical graduates to ease local medical care shortages.

Adopting this rule as an interim rule therefore benefits both foreign

medical graduates and those who live in HHS-designated shortage areas.

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

interim rule will not have a significant [[Page 26681]] economic impact

on a substantial number of small entities because of the following

factors. This interim rule will have limited or no effect on small

entities, because only 20 waivers are authorized per State annually to

foreign medical graduates under Pub. L. 103-416.

Executive Order 12866

This interim 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 Review, and the Office of Management and Budget has

waived its review process under section 6(a)(3)(A).

Exetutive Order 12612

This interim rule will not have substantial direct effect 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. Section 220 of Pub. L. 103-416 merely

enables the States, in addition to Federal Government agencies, to

submit waiver requests for foreign medical graduates directly to USIA,

while preserving the authority of the Federal Government to grant or

deny such waiver requests. The ability of Federal Government agencies

to continue submitting waiver requests to USIA is not changed or

curtailed in any way by this rule. Therefore, in accordance with

Executive Order 12612, it has been determined that this interim 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 this interim rule has been assessed in light of the

criteria in Executive Order 12606, and has determined that the

regulation would enhance family well-being by allowing certain

dependent

J-2 family members to obtain derivative H-4 status in the United States

based on the waiver granted to the principal physician and the

principal's change of status from J-1 to H-1B, without the need to

travel abroad to procure the nonimmigrant visa and seek re-admission to

the United States. Permitting such changes of non-immigrant status

allows the principal physician's dependent spouse and children to: (a)

Accompany him or her while employed temporarily as an H-1B

nonimmigrant; and (b) remain in this country on a permanent basis

should he or she subsequently apply for, and be granted approval of,

adjustment of status to that of a lawful permanent resident. This rule

also enhances family well-being by allowing families in HHS-designated

shortage areas to get much needed medical treatment and care.

Paperwork Reduction Act

The information collection requirements contained in this interim

rule have been cleared by the Office of Management and Budget Under the

provisions of the Paperwork Reduction Act. Clearance numbers for these

collections are contained in 8 CFR 299.5, Display of Control Numbers.

List of Subjects

8 CFR Part 212

Administrative practices and procedure, Aliens, Immigration,

passports and visa, Reporting and recordkeeping requirements.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

Aliens, Reporting and Recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

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.

2. In Sec. 212.7, paragraphs (c)(9) and (c)(10) are redesignated as

paragraphs (c)(10) and (c)(11), respectively, and a new paragraph

(c)(9) and (c)(11), respectively, and a new paragraph (c)(9) is added

to read as follows:

Sec. 212.7 Waiver of certain grounds of excludability.

* * * * *

(c) * * *

(9) Waivers under Pub. L. 103-416 based on a request by a State

Department of Public Health (or equivalent). In accordance with section

220 of Pub. L. 103-416, an alien admitted to the United States as a

nonimmigrant under section 101(a)(15)(J) of the Act, or who acquired

status under section 101(a)(15)(J) of the Act after admission to the

United States, to participate in an exchange program of graduate

medical education or training (as of January 9, 1977), may apply for a

waiver of the 2-year home country residence and physical presence

requirement (the ``2-year requirement'') under section 212(e)(iii) of

the Act based on a request by a State Department of Pubic Health, or

its equivalent. To initiate the application for a waiver under Pub. L.

103-416, the Department of Public Health, or its equivalent, or the

State in which the foreign medical graduate seeks to practice medicine,

must request the Director of USIA to recommend a waiver to the Service.

The waiver may be granted only if the Director of USIA provides the

Service with a favorable waiver recommendation. Only the Service,

however, may grant or deny the waiver application. If granted, such a

waiver shall be subject to the terms and conditions imposed under

section 214(k) of the Act. Although the alien is not required to submit

a separate waiver application to the Service, the burden rests on the

alien to establish eligibility for the waiver. If the Service approves

a waiver request made under Pub. L. 103-416, the foreign medical

graduate (and accompanying dependents) may apply for change of

nonimmigrant status, from J-1 to H-1B and, in the case of dependents of

such a foreign medical graduate, from J-2 to H-4. Aliens receiving

waivers under section 220 of Pub. L. 103-416 are subject, in all cases,

to the provisions of section 214(g)(1)(A) of the Act.

(i) Eligiblity criteria. J-1 foreign medical graduates (with

accompanying J-2 dependents) are eligible to apply for a waiver of the

2-year requirement under Pub. L. 103-416 based on a request by a State

Department of Public Health (or its equivalent) if:

(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, 1996, to pursue graduate medical education or training in the United

States.

(B) They have entered into a bona fide, full-time employment

contract for 3 years to practice medicine at a health care facility

located in an area or areas designated by the Secretary of Health and

Human Services as having a shortage of health care professionals

(``HHS-designated shortage area'');

(C) They agree to commence employment within 90 days of receipt of

the waiver under this section and agree to practice medicine for 3

years at the facility named in the waiver application and only in HHS-

designated shortage areas. The health care facility named in the waiver

application may be operated by: [[Page 26682]]

(1) An agency of the Government of the United States or of the

State in which it is located; or

(2) A charitable, educational, or other not-for-profit

organization; or

(3) Private medical practitioners.

(D) The Department of Public Health, or its equivalent, in the

State where the health care facility is located has requested the

Director, USIA, to recommend the waiver, and the Director, USIA,

submits a favorable waiver recommendation to the Service; and

(E) Approval of the waiver will not cause the number of waivers

granted pursuant to Pub. L. 103-416 and this section to foreign medical

graduates who will practice medicine in the same state to exceed 20

during the current fiscal year.

(ii) Decision on waivers under Pub. L. 103-416 and notification to

the alien.--(A) Approval. If the Director of USIA submits a favorable

waiver recommendation on behalf of a foreign medical graduate pursuant

to Pub. L. 103-416, and the Service grants the waiver, the alien shall

be notified of the approval on Form I-797 (or I-797A or I-797B, as

appropriate). The approval notice shall clearly state the terms and

conditions imposed on the waiver, and the Service's records shall be

noted accordingly.

(B) Denial. If the Director of USIA issues a favorable waiver

recommendation under Pub. L. 103-416 and the Service denies the waiver,

the alien shall be notified of the decision and of the right to appeal

under 8 CFR part 103. However, no appeal shall lie where the basis for

denial is that the number of waivers granted to the State in which the

foreign medical graduate will be employed would exceed 20 for that

fiscal year.

(iii) Conditions. The foreign medical graduate must agree to

commence employment for the health care facility specified in the

waiver application within 90 days of receipt of the waiver under Pub.

L. 103-416. The foreign medical graduate may only fulfill the requisite

3-year employment contract as an H-1B nonimmigrant. A foreign medical

graduate who receives a waiver under Pub. L. 103-416 based on a request

by a State Department of Public Health (or equivalent), and changes his

or her nonimmigrant classification from J-1 to H-1B, may not apply for

permanent residence or for any other change of nonimmigrant

classification unless he or she has fulfilled the 3-year employment

contract with the health care facility and in the specified HHS-

designated shortage area named in the waiver application.

(iv) Failure to fulfill the three-year employment contract due to

extenuating circumstances. A foreign medical graduate who fails to meet

the terms and conditions imposed on the waiver under section 214(k) of

the Act and this paragraph will once again become subject to the 2-year

requirement under section 212(e) of the Act.

Under section 214(k)(1)(B) of the Act, however, the Service, in the

exercise of discretion, may excuse early termination of the foreign

medical graduate's 3-year period of employment with the health care

facility named in the waiver application due to extenuating

circumstances. Extenuating circumstances may include, but are not

limited to, closure of the health care facility or hardship to the

alien. In determining whether to excuse such early termination of

employment, the Service shall base its decision on the specific facts

of each case. In all cases, the burden of establishing eligibility for

a favorable exercise of discretion rests with the foreign medical

graduate. Depending on the circumstances, closure of the health care

facility named in the waiver application may, but need not, be

considered an extenuating circumstance excusing early termination of

employment. Under no circumstances will a foreign medical graduate be

eligible to apply for change of status to another nonimmigrant

category, for an immigrant visa or for status as a lawful permanent

resident prior to completing the requisite 3-year period of employment

for a health care facility located in an HHS-designated shortage area.

(v) Required evidence. A foreign medical graduate who seeks to have

early termination of employment excused due to extenuating

circumstances shall submit documentary evidence establishing such a

claim. In all cases, the foreign medical graduate shall submit an

employment contract with another health care facility located in an

HHS-designated shortage area for the balance of the required 3-year

period of employment. A foreign medical graduate claiming extenuating

circumstances based on hardship shall also submit evidence establishing

that such hardship was caused by unforeseen circumstances beyond his or

her control. A foreign medical graduate claiming extenuating

circumstances based on closure of the health care facility named in the

waiver application shall also submit evidence that the facility has

closed or is about to be closed.

(vi) Notification requirements. A J-1 foreign medical graduate who

has been granted a waiver of the 2-year requirement pursuant to Pub. L.

103-416, is required to comply with the terms and conditions specified

in section 214(k) of the Act and the implementing regulations in this

section. If the foreign medical graduate subsequently applies for and

receives H-1B status, he or she must also comply with the terms and

conditions of that nonimmigrant status. Such compliance shall also

include notifying the Service of any material change in the terms and

conditions of the H-1B employment, by filing either an amended or a new

H-1B petition, as required, under Secs. 214.2(h)(2)(i)(D),

214.2(h)(2)(i)(E), and 214.2(h)(11) of this chapter.

(A) Amended H-1B petitions. The health care facility named in the

waiver application and H-1B petition shall file an amended H-1B

petition, as required under Sec. 214.2(h)(2)(i)(E) of this chapter, if

there are any material changes in the terms and conditions of the

beneficiary's employment or eligibility as specified in the waiver

application filed under Pub. L. 103-416 and in the subsequent H-1B

petition. In such a case, an amended H-1B petition shall be accompanied

by evidence that the alien will continue practicing medicine with the

original employer in an HHS-designated shortage area.

(B) New H-1B petitions. A health care facility seeking to employ a

foreign medical graduate who has been granted a waiver under Pub. L.

103-416 (prior to the time the alien has completed his or her 3-year

contract with the facility named in the waiver application and original

H-1B petition), shall file a new H-1B petition with the Service, as

required under Secs. 214.2(h)(2)(i) (D) and (E) of this chapter.

Although a new waiver application need not be filed, the new H-1B

petition shall be accompanied by the documentary evidence generally

required under Sec. 214.2(h) of this chapter, and the following

additional documents:

(1) A copy of Form I-797 (and/or I-797A and I-797B) relating to the

waiver and nonimmigrant H status granted under Pub. L. 103-416;

(2) An explanation from the foreign medical graduate, with

supporting evidence, establishing that extenuating circumstances

necessitate a change in employment;

(3) An employment contract establishing that the foreign medical

graduate will practice medicine at the health care facility named in

the new H-1B petition for the balance of the required 3-year period;

and

(4) Evidence that the geographic area or areas of intended

employment indicated in the new H-1B petition are in HHS-designated

shortage areas. [[Page 26683]]

(C) Review of amended and new H-1B petitions for foreign medical

graduates granted waivers under Pub. L. 103-416 and who seek to have

early termination of employment excused due to extenuating

circumstances.--(1) Amended H-1B petitions. The waiver granted under

Pub. L. 103-416 may be affirmed, and the amended H-1B petition may be

approved, if the petitioning health care facility establishes that the

foreign medical graduate otherwise remains eligible for H-1B

classification and that he or she will continue practicing medicine in

an HHS-designated shortage area.

(2) New H-1B petitions. The Service shall review a new H-1B

petition filed on behalf of a foreign medical graduate who has not yet

fulfilled the required 3-year period of employment with the health care

facility named in the waiver application and in the original H-1B

petition to determine whether extenuating circumstances exist which

warrant a change in employment, and whether the waiver granted under

Pub. L. 103-416 should be affirmed. In conducting such a review, the

Service shall determine whether the foreign medical graduate will

continue practicing medicine in an HHS-designated shortage area, and

whether the new H-1B petitioner and the foreign medical graduate have

satisfied the remaining H-1B eligibility criteria described under

section 101(a)(15)(H) of the Act and Sec. 214.2(h) of this chapter. If

these criteria have been satisfied, the waiver granted to the foreign

medical graduate under Pub. L. 103-416 may be affirmed, and the new H1-

B petition may be approved in the exercise of discretion, thereby

permitting the foreign medical graduate to serve the balance of the

requisite 3-year employment period at the health care facility named in

the new H-1B petition.

(D) Failure to notify the Service of any material changes in

employment. Foreign medical graduates who have been granted a waiver of

the 2-year requirement and who have obtained H-1B status under Pub. L.

103-416 but fail to: Properly notify the Service of any material change

in the terms and conditions of their H-1B employment, by having their

employer file an amended or a new H-1B petition in accordance with this

section and Sec. 214.2(h) of this chapter; or establish continued

eligibility for the waiver and H-1B status, shall (together with their

dependents) again become subject to the 2-year requirement. Such

foreign medical graduates and their accompanying H-4 dependents also

become subject to deportation under section 241(a)(1)(C)(i) of the Act.

* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR

PERMANENT RESIDENCE

3. The authority citation for part 245 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; and 8 CFR part 2.

Sec. 245.1 [Amended]

4. In Sec. 245.1, paragraph (c)(2) is amended by removing the ``;''

at the end of the paragraph and replacing it with a ``.''; and by

adding a new sentence at the end of paragraph (c)(2) to read as

follows:

Sec. 245.1 Eligibility.

* * * * *

(c) * * *

(2) * * * An alien who has been granted a waiver under section

212(e)(iii) of the Act based on a request by a State Department of

Health (or its equivalent) under Pub. L. 103-416 shall be ineligible to

apply for adjustment of status under section 245 of the Act if the

terms and conditions specified in section 214(k) of the Act and

Sec. 212.7(c)(9) of this chapter have not been met;

* * * * *

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

5. The authority citation for part 248 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.

6. In Sec. 248.2, paragraph (c) is amended by removing the ``;

and'' at the end of the paragraph and replacing it with a ``.''; and by

adding two new sentences at the end of paragraph (c) to read as

follows:

Sec. 248.2 Ineligible classes.

* * * * *

(c) * * * This restriction shall not apply when the alien is a

foreign medical graduate who was granted a waiver under section

212(e)(iii) of the Act pursuant to a request made by a State Department

of Public Health (or its equivalent) under Pub. L. 103-416, and the

alien complies with the terms and conditions imposed on the waiver

under section 214(k) of the Act and the implementing regulations at

Sec. 212.7(c)(9) of this chapter. A foreign medical graduate who was

granted a waiver under Pub. L. 103-416 and who does not fulfill the

requisite 3-year employment contract or otherwise comply with the terms

and conditions imposed on the waiver is ineligible to apply for change

of status to any other nonimmigrant classification; and

* * * * *

Dated: April 25, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-12272 Filed 5-17-95; 8:45 am]

BILLING CODE 4410-10-M