Processing of Certain H-1A Nurses Under Public Law 104-302

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1806-96]

RIN 1115-AD74

Processing of Certain H-1A Nurses Under Public Law 104-302

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization

Service's (the Service) regulations by describing the procedures for an

H-1A nurse to obtain an extension of stay based on Public Law 104-302,

``[a]n Act to extend the authorized period of stay within the United

States for certain nurses.'' This is necessary as a response to

concerns that certain geographical locations in the United States

continue to experience a shortage of registered nurses.

DATES: The interim rule is effective March 7, 1997. Written comments

must be submitted on or before May 6, 1997.

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 1806-96

on your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

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: The H-1A nonimmigrant classification, which

provided for the temporary admission of registered nurses to the United

States, expired on September 1, 1995. However, on October 11, 1996,

Congress enacted Public Law 104-302, ``[a]n Act to extend the

authorized period of stay within the United States for certain

nurses,'' in response to concerns that certain geographic locations in

the United States continue to experience a shortage of registered

nurses. The legislation provides for the granting of an extension of

stay until September 30, 1997, to certain aliens who: (1) entered the

United States as H-1A nurses; (2) were within the United States on or

after September 1, 1995, and who were within the United States on

October 11, 1996; and (3) whose period of authorized stay has expired

or would expire before September 30, 1997, but for the enactment of the

legislation. This rule will amend the Service's regulation at 8 CFR

214.2(h)(15)(ii)(A) to include these requirements.

Public Law 104-302 does not provide for the approval of new H-1A

petitions and relates solely to extensions of stay for certain aliens

who are in, or have previously been accorded, nonimmigrant H-1A status

as registered nurses. This rule amends the description of the H-1A

classification found at 8 CFR 214.2(h)(1)(ii)(A) and removes the

references to the H-1A classification at 8 CFR 214.2(h)(2)(i)(A) and at

8 CFR 214.2(h)(9)(iii)(A) in order to clarify these recently enacted

statutory changes. The definition of an H-1B nonimmigrant alien found

at 8 CFR 214.2(h)(1)(ii)(B) is amended to reflect that registered

nurses are no longer statutorily excluded from the H-1B classification

due to the expiration of the H-1A nonimmigrant classification. The rule

also amends 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 214.2(h)(13)(ii) to

reflect changes affecting employers and travel restrictions,

respectively.

Eligibility

The legislation does not make available the H-1A classification for

registered nurses seeking initial entry into the United States but

merely provides for the extension of stay until September 30, 1997, for

those H-1A nurses who meet the above requirements. Under this

legislation, the Service may not approve an H-1A petition filed on

behalf of an alien who has not previously been accorded H-1A

classification. Since the legislation was designed solely to extend the

H-1A stay of registered nurses affected by the 1995 sunset of the H-1A

classification, an alien must have been employed in H-1A classification

as a registered nurse on September 1, 1995, to obtain the benefits of

the legislation. An alien who was not employed as a registered nurse in

H-1A classification on September 1, 1995, is not eligible for an

extension of temporary stay under this legislation. Further, because

Pub. L. 104-302 deals solely with extensions of H-1A stay, this

provision does not apply to aliens who were previously accorded H-1A

classification and subsequently obtained a different nonimmigrant

classification.

The legislation effectively overrides the regulatory 5-year

limitation of temporary stay previously imposed by the Service on H-1A

registered nurses. Thus, an eligible alien may seek an extension of H-

1A stay regardless of the length of time that he or she was in the

United States in such nonimmigrant classification. The regulation at 8

CFR 214.2(h)(13)(ii) has been amended to reflect this change.

Filing Requirements

This interim regulation requires that an employer seeking the

services of an H-1A registered nurse pursuant to Public Law 104-302

file a Form I-129, Petition for Nonimmigrant Worker, at the appropriate

Service Center to obtain an extension of the alien's stay in the United

States. The purpose of requiring the filing of a petition is to ensure

that a nurse is, in fact, eligible for the benefits of the legislation.

The filing and subsequent approval of the petition will also provide

assurance to the petitioner that the alien's employment will not result

in an employer sanctions violation.

This interim rule amends 8 CFR 214.2(h)(15)(ii)(A) by providing a

list of the evidence which must be submitted with the request for the

extension of the alien's stay in H-1A classification. The interim rule

requires that the employer submit evidence that the alien is licensed

to practice as a registered nurse in the state of intended employment,

that the alien was employed as a registered nurse on September 1, 1995,

that the alien was in the United States on or after September 1, 1995,

and, for an alien who was no longer in status on October 11, 1996, due

to the 1995 sunset of the H-1A classification, that the alien was in

the United States on October 11, 1996. In this regard, because the

intent of Public Law 104-302 was to avoid disruption of much needed

health care services, the Service interprets the requirement that an

alien have been ``within'' the United States on October 11, 1996, to

include H-1A registered nurses who, although not physically present in

the United States on that date, subsequently were readmitted to this

country pursuant to an unexpired H-1A petition.

Affected Groups

The regulation contemplates three separate groups of H-1A nurses

who may be affected by this legislation.

The first group of H-1A nurses is comprise of those nurses who are

currently in a valid nonimmigrant status but whose stay will expire

prior to September 30, 1997. The registered nurses who meet the

statutory requirements will have their H-1A nonimmigrant stay extended

through September 30, 1997, upon the approval of Form I-129, Petition

for

[[Page 10423]]

Nonimmigrant Worker, filed by their employer at the appropriate Service

Center. In accordance with 8 CFR 274a.12(b)(20), such nurses will be

authorized to continue employment with the petitioning employer pending

Service adjudication of the petition.

The second group of H-1A nurses is comprised of those nurses who

were employed in H-1A classification as a registered nurse on September

1, 1995, and whose period of authorized stay in the United States had

expired prior to the effective date of this legislation. Provided they

meet the statutory requirements, the H-1A stay of these nurses shall

also be extended through September 30, 1997, upon the approval of Form

I-129 filed by their United States employer at the appropriate Service

Center. In accordance with 8 CFR 274a.12(b)(20), such nurses will also

be authorized to continue employment with the petitioning employer

pending Service adjudication of the petition.

An otherwise qualified registered nurse in this second group who

was employed in H-1A classification on September 1, 1995, but is no

longer in a valid nonimmigrant status due to the expiration of the H-1A

classification, is eligible for an extension of temporary stay

regardless of whether the alien continued to work as a registered nurse

after September 1, 1995. The petition extension may be filed by any

facility as defined in 8 CFR 214.2(h)(3)(i)(B). Further, an alien

granted an extension of stay under this provision is considered to have

maintained a valid nonimmigrant status through September 30, 1997, for

all purposes under the Immigration and Nationality Act, as amended (the

``INA'').

A third group of H-1A aliens, those whose period of authorized stay

will not expire until after September 30, 1997, are not affected by the

legislation. These H-1A nurses may remain in the United States until

the validity of their petition expires.

This legislation does not affect the status of an alien who was

admitted to the United States as an H-1B nonimmigrant alien to perform

services in the field of professional nursing. Further, this

legislation does not preclude the Service from approving an H-1B

petition filed for a professional nurse, if all regulatory and

statutory provisions relating to the H-1B classification are met.

Change of Employers

Subsection (b) of the statute specifically provides that an H-1A

nurse may not change employers in the United States. The regulation at

8 CFR 214.2(h)(2)(i)(D) has been amended to reflect this restriction.

However, a mere change in employer ownership or a change in work

location with the same employer does not, for the purposes of the H-1A

classification, constitute a change of employers.

Travel Restrictions

The legislation also provides that the extension of the authorized

period of stay for certain nurses does not in any way extend the H-1A

alien's visa. Further, Public Law 104-302 does not authorize the re-

entry of any person who was outside the United States on the date of

enactment and who was not the beneficiary of an unexpired, approved H-

1A petition to obtain the benefits of the legislation. Hence, an alien

who was outside the United States on the date the legislation was

enacted and who previously held H-1A nonimmigrant classification which

has expired is ineligible for H-1A classification. An alien who obtains

an extension of stay based on this legislation and subsequently departs

the United States will be required to obtain appropriate documentation

from the Department of State in order to apply for admission to the

United States in H-1A classification. The regulation at 8 CFR

214.2(h)(13)(ii) has been amended to reflect this change.

Maintenance of Status

An H-1A alien who obtains an extension of stay based on this

legislation is considered to have maintained lawful nonimmigrant status

through September 30, 1997. This provision also applies to the spouse

and child of the H-1A nonimmigrant alien. The regulation at 8 CFR

214.2(h)(15)(ii)(A) has been amended to reflect this change. Upon

approval of the extension, such persons shall be accorded H-4

nonimmigrant status. In addition, a spouse or child granted an

extension of stay under this section of law is considered to have

maintained a valid nonimmigrant status for all purposes under the INA.

This rule also amends the regulation at 8 CFR 214.2(h)(9)(iii) to

reflect a technical change in the title of the Chief of the

Administrative Appeals Unit, Central Office, to the Director of the

Appeals Office, Headquarters.

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. First, the provisions of Public Law 104-302 require that

the Service issue implementing regulations not later than 30 days after

the date that the legislation was enacted. As a result of this

provision, the Service does not have sufficient time to solicit

comments from the public prior to publishing a notice of proposed

rulemaking. Second, the Service notes that this provision is intended

solely to grant a benefit to eligible aliens and the general public.

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 interim rule merely clarifies the requirements for

obtaining an extension of stay under Public Law 104-302.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

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).

[[Page 10424]]

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 12988

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 214

Adminsistrative 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 paragraphs (h)(1)(ii)(A) and (B) (1);

b. Revising paragraphs (h)(2)(i)(A) and (D);

c. Removing paragraph (h)(9)(iii)(A);

d. Redesignating paragraphs (h)(9)(iii) (B), (C), and (D) as

paragraphs (h)(9)(iii) (A), (B), and (C) respectively;

e. Revising paragraph (h)(13)(ii); and by

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

Sec. 214.2 Special requirements for admission, extension, and

maintenance of status.

* * * * *

(h) * * *

(1) * * *

(ii) Description of classification.

(A) An H-1A classification applies to an alien who is coming

temporarily to the United States to perform services as a registered

nurse, meets the requirements of section 212(m)(1) of the Act, and will

perform services at a facility for which the Secretary of Labor has

determined and certified to the Attorney General that an unexpired

attestation is on file and in effect under section 212(m)(2) of the

Act. This classification expired on September 1, 1995, but certain

aliens previously accorded H-1A classification are eligible to obtain

and extension of stay until September 30, 1997, pursuant to Public Law

104-302.

(B) * * *

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

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;

* * * * *

(2)Petitions--(i) Filing of petitions--(A) General. A United States

employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3

temporary employee shall file a petition on Form I-129, Petition for

Nonimmigrant Worker, only with the Service Center which has

jurisdiction in the area where the alien will perform services, or

receive training, even in emergent situations, except as provided in

this section. Petitions in Guam and the Virgin Islands, and petitions

involving special filing situations as determined by Service

Headquarters, shall be filed with the local Service office or a

designated Service office. The petitioner may submit a legible

photocopy of a document in support of the visa petition in lieu of the

original document. However, the original document shall be submitted if

requested by the Service.

* * * * *

(D) Change of employers. If the alien is in the United States and

seeks to change employers, the prospective new employer must file a

petition on Form I-129 requesting classification and extension of the

alien's stay in the United States. If the new petition is approved, the

extension of stay may be granted for the validity of the approved

petition. The validity of the petition and the alien's extension of

stay shall conform to the limits on the alien's temporary stay that are

prescribed in paragraph (h)(13) of this section. The alien is not

authorized to begin the employment with the new petitioner until the

petition is approved. An H-1A nonimmigrant alien may not change

employers.

* * * * *

(13) * * *

(ii) H-1A limitation on admission. An alien who was previously

accorded H-1A nonimmigrant status, which expired on or before October

11, 1996, may not be admitted to the United States after October 11,

1996, in order to apply for an extension of authorized stay as provided

in Public Law 104-302. Except as provided in paragraph (15)(ii)(A) of

this subsection, and H-1A alien who has spent 5 years in the United

States under section 101(a)(15)(H) of the Act may not change status, or

be readmitted to the United States in any H classification unless the

alien has resided and been physically present outside the United

States, except for brief trips for pleasure or business, for the

immediate prior year.

* * * * *

(15) * * *

(ii) * * *

(A) H-1A extension of stay. An alien who previously entered the

United States pursuant to an H-1A visa may receive an extension of H-1A

temporary stay until September 30, 1997, provided that the alien was

within the United States in valid H-1A classification on or after

September 1, 1995, regardless of whether the alien continued to work as

a registered nurse after September 1, 1995; that the alien's period of

H-1A temporary stay has expired or would expire before September 30,

1997; and, if the alien was not in valid H-1A nonimmigrant status on

October 11, 1996, that the alien was within the United States on

October 11, 1996. An extension of stay may not be granted to an H-1A

nonimmigrant alien beyond September 30, 1997. An H-1A alien granted an

extension of stay, and the spouse and child of such nonimmigrant, shall

be considered to have maintained nonimmigrant status through September

30, 1997, for all purposes under the Immigration and Nationality Act,

as amended. Public Law 104-302 does not apply to an H-1A alien who

otherwise failed to maintain his or her valid H-1A nonimmigrant status

or has changed from H-1A to another nonimmigrant status. A request for

an extension of stay for an H-1A nonimmigrant must be filed on Form I-

129, Petition for Nonimmigrant Worker, at the appropriate Service

Center with the following:

(1) Evidence that the alien was employed as a registered nurse on

September 1, 1995:

(2) Evidence that the beneficiary is licensed to practice as a

registered nurse in the state of intended employment;

(3) Evidence that the alien was within the United States on or

after September 1, 1995. For purposes of this provision, an alien will

be deemed to have been within the United States on September 1, 1995,

who, although not physically present in the United States on that date,

was subsequently admitted to the United States in H-1A classification

pursuant to an unexpired H-1A visa; and

[[Page 10425]]

(4) If the alien was not in valid H-1A nonimmigrant status on

October 11, 1996, evidence that the alien was within the United States

on October 11, 1996. For purposes of this provision, an alien will be

deemed to have been within the United States on October 11, 1996, who,

although not physically present in the United States on that date, was

subsequently admitted to the United States in H-1A classification

pursuant to an unexpired H-1A visa.

* * * * *

Sec. 214.2 [Amended]

3. In Sec. 214.2, newly redesignated paragraph

(h)(9)(iii)(B)(2)(ii) is amended in the second sentence by revising the

phrase ``Chief of the Administrative Appeals Unit, Central Office'' to

read: ``Director, Administrative Appeals Office, Headquarters''.

Dated: February 28, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 97-5660 Filed 3-6-97; 8:45 am]

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