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

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 1654-94]

RIN 1115-AD66

Temporary Alien Workers Seeking H Classification for the Purpose

of Obtaining Graduate Medical Education or Training

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: After consideration of comments filed and the relevant issues,

the Immigration and Naturalization Service (Service) has decided not to

implement one of the changes previously proposed, to preclude the use

of the H-1B non-immigrant classification for graduates of foreign

medical schools pursuing medical residencies in the United States.

However, this rule amends the Service's regulations in other respects

by modifying the filing procedures for certain H nonimmigrant petitions

involving multiple beneficiaries. The rule allows a petitioner to file

a single petition even when the beneficiaries listed on the petition

will be applying for nonimmigrant visas at different consulates or for

entry into the United States at different Ports-of-Entry, provided 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. This

rule further amends the Service's regulations by clearly

differentiating between an H-3 alien trainee and an H-3 special

education trainee with respect to the time limitations on admission for

these types of classifications. This rule will ease the burden on the

public when filing H petitions involving multiple beneficiaries and

will correct a regulatory inconsistency regarding the limitations on

stay for H-3 nonimmigrant aliens.

EFFECTIVE DATE: December 4, 1995.

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: On July 14, 1994, at 59 FR 35866-35867, the

Immigration and Naturalization Service (Service) published a proposed

rule in the Federal Register addressing three issues within the H

nonimmigrant classification. The principal proposal related to the

treatment of certain foreign medical graduates seeking to be classified

under the H-1B nonimmigrant classification as amended by the

Miscellaneous and Technical Immigration and Naturalization Amendments

of 1991 (MTINA). The Service proposed that graduates of foreign medical

schools should be prohibited from seeking H-1B classification for the

purpose of pursuing a medical residency in the United States and that,

instead, these aliens should be required to avail themselves of the J-1

nonimmigrant classification. The Service also proposed that those

aliens already admitted to the United States as H-1B nonimmigrant

aliens for the purpose of pursuing a medical residency be required to

seek a change of nonimmigrant status to that of a J-1 nonimmigrant

alien to complete the residency. After reviewing the comments received

from the public, the Service has decided not to promulgate this portion

of the proposed rule.

The comment period for the proposed rule ended on September 12,

1994. In response to the proposed rule, the Service received a total of

325 comments. The following is a discussion of the comments and the

Service's response.

Multiple Beneficiaries and Time Limitations on Certain H-3 Trainees

Of the 325 comments received, only one addressed the Service's

proposal relating to multiple beneficiaries on H petitions and its

proposal regarding time limitations for H-3 alien trainees. The

commenter opined that these two proposals comported with Congressional

intent and recommended that they be adopted. The Service concurs and

accordingly will incorporate those two proposals in the final rule.

Medical Residencies Under the H-1B Nonimmigrant Classification

The Service received 325 comments addressing the issue of medical

residencies under the H-1B nonimmigrant classification. Only 11

commenters agreed with the Service's proposal that graduates of foreign

medical schools be prohibited from using the H-1B nonimmigrant

classification for the purpose of pursuing a medical residency. The

remainder of the commenters expressed the opinion that Congress

intended that graduates of foreign medical schools be permitted to

pursue medical residencies under the H-1B nonimmigrant classification.

In addition, 235 of the commenters stated that it was not fair or

appropriate for the Service to require that an alien already admitted

into the United States as an H-1B nonimmigrant alien in order to pursue

a medical residency be required to change his or her nonimmigrant

status to a J-1 nonimmigrant alien in order to complete the residency.

In proposing this rule, the Service expressed its opinion that

Congress did not intend the H-1B nonimmigrant classification to be used

by graduates of foreign medical schools coming to the United States to

pursue medical residencies or otherwise receive graduate medical

education or training, and that, therefore, these aliens should

[[Page 62022]]

seek classification as J-1 nonimmigrant aliens. This opinion was based

on the Service's examination of the relevant legislation, including the

Health Professionals Education Assistance Act of 1976 (HPEAA), Pub. L.

94-484 and MTINA. The Service took note that the HPEAA established the

J-1 classification as the sole vehicle, with certain limited

exceptions, for graduates of medical schools to obtain graduate medical

education or training in the United States, including medical

residencies. See sections 101(a)(15)(J) and 212(j)(1) of the Act; see

also pre-IMMACT (Immigration and Nationality Act of 1990) section

101(a)(15)(H)(i) of the Act. The Service further noted that, by

amending sections 101(a)(15)(H)(i)(b) and 212(j)(2) of the Act, MTINA

provided an avenue for foreign medical graduates to enter the United

States in H-1B status to perform services in the medical professions.

The Service opined, however, that MTINA did not alter the HPEAA's

requirement, as set forth in section 212(j)(1) of the Act, that a

graduate of a foreign medical school seeking education or training do

so only as a J-1 nonimmigrant alien. In support of this position, the

Service expressed its belief that Congress would not have placed in

juxtaposition two such clearly different statutory provisions as

section 212(j)(1) and section 212(j)(2) of the Act had it intended for

the H-1B and J-1 classifications to overlap with respect to foreign

medical graduates seeking graduate medical education or training.

After a careful review of the comments received in response to the

proposed rule and a further review of the relevant legislative history,

the Service has opted to withdraw this portion of the proposed rule.

The Service is now of the opinion that the statute can be reasonably

interpreted either to provide that as proposed by the Service, the H-1B

classification is not available for graduates of foreign medical

schools to take medical residencies or, as is the current practice, the

H-1B classification is available for graduates of foreign medical

schools for medical residencies.

The Service has elected to adopt the second interpretation and

continue its current practice of allowing graduates of foreign medical

schools to take residencies under the H-1B classification. In so doing,

the Service notes first that nothing in the statute or the relevant

legislative history specifically precludes H-1B classification for

aliens seeking graduate medical training, and second, under the

language of section 214(i) of the Act, a graduate medical education

program, such as a residency, could in some cases meet the definition

of ``specialty occupation'' for H-1B purposes. See also 8 CFR

214.2(h)(4)(i). In addition, we note, as did some commenters, that a

medical residency can reasonably be considered to be either a training

program or a specialty occupation. This position is consistent with

that taken by the Service in Matter of Bronx Municipal Hospital Center,

12 I&N Dec. 768 (1968), where the Regional Commissioner held that a

medical residency is primarily clinical in nature and, therefore, does

not qualify as an H-3 training program.

In deciding to withdraw this portion of the rule, the Service also

found persuasive the comments submitted by a number of large urban

medical facilities indicating that they would be unable to recruit

qualified individuals to pursue residencies under the J-1 program.

These commenters indicated that they have relied heavily on the use of

the H-1B program to staff their residency programs and that the

requirement that these aliens use the J-1 program would result in a

curtailment of medical services which could otherwise be provided to

the surrounding community.

Finally, the Service was also impressed by the sheer number of

comments received in opposition to the rule. While three major

organizations involved in the medical health field supported the

Service's proposed rule, over 300 other commenters expressed the

opinion that graduates of foreign medical schools should be permitted

to pursue medical residencies as H-1B nonimmigrant aliens. The three

commenters based their opinion on the belief that medical residencies

should be characterized as training programs as opposed to temporary

employment as a specialty occupation. However, as indicated above, the

Service is of the opinion that a medical residency can be considered

either a training program or a specialty occupation. See Bronx

Municipal Hospital Center, supra.

As a result of the Service's withdrawal of this portion of the

proposed rule, graduates of foreign medical schools will continue to be

permitted to pursue a medical residency under the H-1B classification

provided, of course, that all regulatory and statutory requirements for

the classification are met. In addition, graduates of foreign medical

schools will also continue to be eligible to pursue medical residencies

under the J-1 nonimmigrant classification.

Prospective petitioners for H-1B nonimmigrant aliens seeking to

pursue medical residencies should be aware of the obligations which are

assumed when an H-1B petition is filed. These obligations include both

the requirement that the prospective employer pay the alien's return

transportation if the alien is dismissed before the expiration of the

validity of the petition and compliance with section 212(n) of the Act.

This rule will have no adverse effect on family well-being.

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. This regulation merely modifies certain filing

procedures for H petitions.

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.

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, 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)(2)(ii); and by

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

[[Page 62023]]

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.

* * * * *

(13) * * *

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

spent 3 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 6 months.

* * * * *

Dated: November 1, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-29417 Filed 12-1-95; 8:45 am]

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