Waiver of the Two-Year Home Country Physical Presence Requirement for Certain Foreign Medical Graduates [62 FR 18506] [FR 12-97]

DOCUMENT NUMBER: FR 12-97

FEDERAL REGISTER CITE: 62 FR 18506

DATE PUBLISHED: April 16, 1997

BILLING CODE 4410-10-M

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.

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 t o 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 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 followin g 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 co untry. 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.