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: Final rule.

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SUMMARY: This final rule amends the Immigration and Naturalization

Service (Service) regulations relating to waivers of the 2-year home

country residence and physical presence requirement (2-year

requirement) pursuant to a request by a State Department of Public

Health, or its equivalent. These waivers are intended to ease health

care shortages by allowing certain foreign medical graduates (FMGs) to

work at health care facilities located in geographic areas designated

by the Secretary of Health and Human Services (HHS) as having a

shortage of health care professionals (HHS-designated shortage areas).

EFFECTIVE DATE: April 16, 1997.

FOR FURTHER INFORMATION CONTACT:

Sophia Cox, Adjudications Officer, Adjudications Division, Immigration

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

DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION: On October 25, 1994, Congress enacted the

Immigration and Nationality Technical Corrections Act of 1994 (the 1994

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

Section 220 of the 1994 Technical Corrections Act amended section

212(e) of the Immigration and Nationality Act (Act) to allow a State

Department of Public Health (or its equivalent), in addition to a

United States Government agency, to request the United States

Information Agency (USIA) to recommend a waiver of the 2-year

requirement for a J-1 foreign medical graduate.

Section 220(c) of the 1994 Technical Corrections act provides that

the statutory amendments to section 212(e) of the Act enabling a State

Department of Public Health to submit waiver requests directly to USIA

for FMGs practicing medicine in HHS-designated shortage areas applies

to aliens admitted to the United States in J-1 status, or who acquire

J-1 status after admission before, on, or after the enactment, and

before June 1, 1996. In an interim rule, published in the Federal

Register on May 18, 1995, at 60 FR 26676, the Service interpreted this

provision to mean that any FMG who entered the United States in J-1

status or acquired J-1 status upon arrival to pursue graduate medical

education or training before June 1, 1996, is eligible to apply for a

waiver based on a request by a State Departments of Public Health, and

for subsequent change of nonimmigrant status to H-1B, if eligible.

In addition, section 220 of the 1994 Technical Corrections Act

created a new section 214(k) of the Act, setting forth the terms and

conditions imposed on State-based waivers. These terms and conditions

include, among other things, that the FMG:

(1) Submit to USIA a ``no objection'' statement from the government

of his or her home country, if he or she is contractually obligated to

return to that country;

(2) Demonstrate an offer of full-time employment at a health care

facility located in an HHS-designated shortage area and agree to begin

employment within 90 days of receiving the waiver approval;

(3) Agree to practice medicine for that health care facility for at

least 3 years; and

(4) Agree to practice medicine only in HHS-designated shortage

areas during this 3-year period. The statute limits the number of

State-based waivers that can be granted to each State to 20 per fiscal

year.

In addition to stipulating the terms and conditions attached to the

waiver, section 214(k) of the Act also eased the change of status

restrictions under section 248(2) of the Act, to allow an FMG who has

been granted a State-based waiver to apply for change of status from J-

1 to H-1B, provided the remaining eligibility criteria have been

satisfied. By implication, under this statutory provision, the FMG's

dependent spouse and children, if otherwise eligible, may apply for

change of nonimmigrant status from J-2 to H-4. This provision, however,

does not ease the annual numerical limitations imposed on the H-1B

specialty occupation worker category under section 214(g)(1)(A) of the

Act. Therefore, the Service would be statutorily precluded from

according H-1B status to an EMG if the annual numerical limitation

imposed on the issuance of H-1B visas under section 214(g)(1)(A) of the

Act were reached.

As explained in the preamble to the interim rule, the FMG must

fulfill the required 3-year employment contract as an H-1B. This

provision is consistent with Congress' intent that the FMG fulfill the

3-year employment contract before applying for change of status to L or

another H nonimmigrant classification, for adjustment of status or for

an immigrant visa. In addition, this regulatory provision allows the

Service to maintain control over the FMG's stay in the United States by

ensuring compliance with the conditions imposed on the waiver under

section 214(k) of the Act.

An FMG who does not fulfill the terms and conditions of the waiver

imposed under section 214(k) of the Act again becomes subject to the 2-

year requirement under section 212(e) of the Act. Consequently, the FMG

becomes ineligible to apply for an immigrant visa, permanent residence,

or for any other change of nonimmigrant status until he or she has

resided and been physically present in his or her country of

nationality or last residence for an aggregate of 2 years following

departure from the United States. The Attorney General may excuse early

termination of the FMG's employment due to extenuating circumstances,

which may include hardship to the FMG or the closure of the facility.

In order to avoid resubjecting himself or herself to the 2-year

requirement, the FMG, however, should be prepared to submit an

employment contract for the balance of the required 3-year period with

another health care facility in an HHS-designated shortage area.

On May 18, 1995, the Service published an interim rule in the

Federal Register implementing section 220 of the Technical Corrections

Act, and requested public comment. See 60 FR 26676-26683. The public

comment period ended on July 17, 1995. The Service received only two

comments in response to the interim rule. In general, one commenter

stated the rule is helpful to FMGs, and the other stated that it is

contrary to immigration reform efforts.

Discussion of Comments

One commeter supported the waiver policy as promulgated in the

Service's interim rule, and noted that the newly created State-based

waivers are helpful to FMGs in psychiatric residencies, because they

will assist our country in meeting it needs for psychiatrists and other

medical specialists in work force shortage areas.

The other commenter disagreed with the Service's interim rule, on

the ground that it was contrary to the recommendations of the U.S.

Commission on Immigration Reform to curtail the levels of immigration

to the United States. The Service lacks discretion in this regard. The

purpose of the interim rule was solely to implement section 220 of the

Technical

[[Page 18507]]

Corrections Act, in a manner consistent with Congressional intent. The

rule was based on an express statutory amendment that expanded eligible

212(e) waiver recommending agencies to include State Departments of

Public Health, and incorporates statutory terms and conditions to the

waiver so as to ensure that the public receives the intended benefit.

Developments Following Publication of the Interim Rule

In the preamble to the interm rule, the Service clarified the terms

``FMG,'' ``State Department of Public Health, or its equivalent,'' and

``HHS-designated shortage area,'' and discussed a broad range of

issues. Subsequent to the publication of the interim rule, there were

policy developments concerning what constitutes an ``HHS-designated

shortage area,'' and what is meant by the term ``contractually

obligated,'' for purposes of determining whether a ``no objection''

statement is required. The Service does not believe it is necessary to

incorporate these policy developments into the final regulation itself.

In addition, the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) redesignated section 214(k) of the

Act as section 214(l) of the Act, and amended the 1994 Technical

Corrections Act to extend the State-based waiver program and impose

terms and conditions on FMGs granted waivers of the 2-year requirement

based on a request by a U.S. Government agency. The developments that

occurred following publication of the Service's interim rule are

summarized immediately below.

HHS-Designated Shortage Areas

Section 214(l)(1)(C) of the Act provides that the FMG must agree to

practice medicine in accordance with section 214(l)(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.'' In the preamble to the interim

rule, the Service stated that it is bound by HHS' determination of what

constitutes an HHS-designated shortage area.

Subsequent to the publication Service's interim rule, HHS published

a notice in the Federal Register on September 19, 1995, at 60 FR 48515-

48516. This notice stated that both Health Professional Shortage Areas

(HPSAs) and Medically Underserved Areas/Medically Underserved

Populations (MUAs/MUPs) are geographic areas having a shortage of

health care professionals for purposes of State-based waivers of the 2-

year requirement. As section 214(l)(1)(C) of the Act assigns authority

to HHS to designate health care shortage areas, HPSAs and MUAs/MUPs

shall be deemed designated shortage areas for purposes of State-based

waivers under section 212(e) of the Act until such a time as HHS

further revises or amends the designations.

No Objection Statements

On the issue of ``no objection'' statements, the Service noted that

section 214(l)(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.'' This requirement applies only

in the case of State-based waivers under section 212(e) of the Act.

Following the publication of the Service's interim rule, USIA

clarified the term ``otherwise contractually obligated'' for purposes

of determining when a ``no objection'' statement is required in its

final rule implementing section 220 of the Technical Corrections Act.

See 60 FR 53122-53126 (October 12, 1995). The USIA's final rule

provides that the term ``otherwise contractually obligated * * *''

refers only to those FMGs whose medical education or training has been

funded by the government of his or her home country. Since the Service

may not grant a section 212(e) waiver without the favorable

recommendation of the USIA, the Service defers to the USIA with respect

to the proper interpretation of the term ``otherwise contractually

obligated * * *'' in determining when a ``no objection statement'' is

required.

IIRIRA Changes

On September 30, 1996, the President signed the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208.

Section 622(a) of IIRIRA amended section 220(c) of the 1994 Technical

Corrections Act to extend the State-based waiver program until June 1,

2002. Therefore, the regulation will be amended at 8 CFR

212.7(c)(9)(i)(A) to reflect the FMGs who entered the United States in

J-1 status or acquired J-1 status upon arrival before June 1, 2002, may

apply for a waiver based on a request by a State Department of Public

Health. This amendment is made to ensure the regulation reflects the

correct expiration date of the State-based waiver program. This change

became effective on September 30, 1996, the IIRIRA enactment date.

Because section 622(a) of IIRIRA amended section 220(c) of the 1994

Technical Corrections Act, the enabling legislation, there effectively

has not been any interruption in the State-based waiver program. See

Trichilo v. Secretary of Health and Human Services, 825 F.2d 702, 705-

07 (2d Cir. 1987).

In addition, sections 622 (b) and (c) of IIRIRA amended section

214(k) of the Act to impose new terms and conditions on waivers of the

2-year requirement granted to FMGs based on a request by an interested

Federal agency. These statutory changes will be implemented in a

separate rulemaking. While sections 622 (b) and (c) of IIRIRA 96 Act

amended section 214(k) of the Act, section (a)(3)(A) of the 96 Act

subsequently redesignated section 214(k) of the Act as section 214(l)

of the Act, which unintentionally resulted in two different sections

214(l) of the Act, as section 625 of the 96 Act also created a section

214(l) of the Act to impose new terms and conditions on F-1 academic

students. The Service is seeking a technical correction to resolve this

discrepancy.

Effective Date of Final Rule

Since the two technical changes resulting from section 622 of the

96 Act, relating to the extension of the eligibility date from June 1,

1996, to June 1, 2002, and the redesignation of section 214(k) of the

Act as section 214(l) of the Act, became effective on September 30,

1996, the Service feels that ``good cause'' exists under 5 U.S.C.

553(d)(3) to have this final rule become effective upon date of

publication in the Federal Register.

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

final rule will not have a significant economic impact on a substantial

number of small entities because only 20 waivers are authorized per

State annually to FMGs under Pub. L. 103-416.

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, it will not significantly or uniquely

affect small governments. Therefore, no actions were deemed necessary

under the provisions of the

[[Page 18508]]

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 final 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 12988

This final rule meets the applicable standards set forth in

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

Executive Order 12612

This regulation will not have a substantial direct effect on the

States, on the relationships between the National Government and the

States, or on the distribution of power and responsibilities among the

various levels of government. It merely implements section 220 of Pub.

L. 103-416, which grants the States, in limited circumstances, the

authority to submit requests for waiver recommendations to the Director

of the USIA on behalf of certain foreign medical graduates. Therefore,

in accordance with E.O. 12612, it is determined that this rule does not

have sufficient Federalism implications to warrant the preparation of a

Federalism Assessment.

List of Subjects

8 CFR Part 212

Administration practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

Aliens, Reporting and recordkeeping requirements.

Accordingly, the interim rule amending 8 CFR parts 212, 245 and

248, which was published at 60 FR 26676-26683 on May 18, 1995, is

adopted as a final rule with the following changes:

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.

Sec. 212.7 [Amended]

2. Section 212.7 is amended in the fifth sentence of paragraph

(c)(9) introductory text, by revising the reference to ``section 214(k)

of the Act'' to read: ``section 214(l) of the Act (as redesignated by

section 671(a)(3)(A) of Pub. L. 104-208)''.

3. Section 212.7 is amended by revising the reference to ``section

214(k)'' to read: ``section 214(l)'' wherever it appears in the

following paragraphs:

a. Paragraph (c)(9)(iv); and

b. Paragraph (c)(9)(vi).

3. Section 212.7 is amended by revising the reference to ``section

214(k)(1)(B)'' to read: ``section 214(l)(1)(B)'' in the first sentence

of the unnumbered paragraph immediately after paragraph (c)(9)(iv).

4. Section 212.7 is amended by revising paragraph (c)(9)(i)(A), to

read as follows:

Sec. 212.7 Waiver of certain grounds of excludability.

* * * * *

(c) * * *

(9) * * *

(i) * * *

(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, 2002, to pursue graduate medical education or training in the United

States.

* * * * *

Dated: February 26, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 97-9831 Filed 4-15-97; 8:45 am]

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