Waiver of the Two-Year Home Country Physical Presence Requirement for Certain Foreign Medical Graduates [60 FR 26676][FR FR 29-95]

DOCUMENT NUMBER: FR 29-95

FEDERAL REGISTER CITE: 60 FR 26676

DATE PUBLISHED: May 18, 1995

BILLING CODE: 4410-10

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.

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 perm it 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 wh o 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 w ho 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 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 b een 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), Public Law 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 waiv er 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 establi sh 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 United 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 filin g 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 pr ovides 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 otherwise 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. 103-4 16, 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 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 requi rement.

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 "Sta te" 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 foreig n 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 employme nt 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 Dep artment of Public Health (or its equivalent), standing alone, cannot be deemed sufficient to meet this 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 b een 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 in HHS-designated shortage areas.

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 sectio n 212(e) to that of an alien described in section 101(a)(15)(H)(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 categor y, 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 requiremen t. Taken together, these two provisions indicate that Congress 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 vis a, 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 vi sitors 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 und er 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 indicat e 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. T hese 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, warra nt 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 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 t his 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) re lating 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-design ated 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 waiv er 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 na med 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 applicat ion (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.