DOCUMENT NUMBER: FR 61-94

FEDERAL REGISTER CITE: 59 FR 51101 - 51102

DATE PUBLISHED: October 7, 1994

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS 1663-94]

RIN 1115-AD74

Admission of Certain Nurses Seeking Nonimmigrant Classification under the H-1A category

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations with regards to the admission of certain nurses seeking nonimmigrant classification under the H-1A classification. This rule is necessary because of a change in the method that the National Council of State Boards of Nursing employs in administering the permanent state licensure examination (NCLEX). In response to this change in testing procedures, this rule provides that nurses entering the United States on the basis of a temporary license issued by the state of intended employment must pass the NCLEX within six months after the date of their initial admission to the United States. The rule also clarifies for businesses and the general public the requirements for the admission of foreign nurses into the United States.

DATES: This interim rule is effective October 7, 1994. Written comments must be submitted on or before December 6, 1994.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, N.W., Room 5307, Washington, DC 20536. To ensure proper handling please reference the INS number 1663-94 on your correspondence.

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: Section 212(m)(1) of the Immigration and Nationality Act (Act) describes the qualifications necessary for an alien to obtain classification as an H-1A registered nurse. The Act requires, among other things, that the nurse must have either: (1) a full and unrestricted license to practice professional nursing in the state of intended employment or (2) have passed an appropriate examination (under current 8 CFR 214.2 (h)(3)(iii), the examination given by the Commission on Graduates of Foreign Nursing School s (CGFNS)) and have a temporary license for the state of intended employment. Under the current regulations, a foreign nurse who is accorded H-1A status based on a temporary license after passage of the CGFNS is required to sit and pass the first available permanent state licensing examination.

Prior to April 1, 1994, the permanent state licensing examination was given twice a year, in February and July. Under current 8 CFR 214.2(h)(3)(v)(B), a nurse admitted in H-1 classification based on passage of the CGFNS examination and temporary licensure who fails the permanent state licensing examination or fails to sit for the first available permanent licensing examination is no longer eligible for H-1A status. On April 1, 1994, however, the National Council of State Boards of Nursing altered its te sting procedures and now offers the permanent state licensing examination on a walk-in basis, six days a week. Thus, the current regulatory requirement that the alien sit and pass the first available state nursing examination is no longer appropriate since the test is now available to the nurse immediately upon entry into the United States.

In order to provide a nurse with sufficient time to acclimate himself or herself to the country and to prepare for the examination, the Service has determined that a nurse who has been accorded H-1A status on the basis of a temporary license shall be granted a period of six months after the date of entry to sit and pass the permanent state licensing examination. After passage of the permanent state licensing examination, the alien's employer must file an application to extend the stay of the alien. At the time of the application for extension of stay, the alien's employer must demonstrate that the alien has remained in H-1A status continuously from the time of his or her admission by submitting evidence reflecting that the alien has been employed continuously as a registered professional nurse since entry. An alien who does not pass the permanent state licensing examination within six months of his or her admission or fails to maintain a valid H-1A status is not eligible for a further extension of stay.

Despite these changes, petitions for H-1A aliens entering the United States based on a temporary license will continue to be approved for a period not to exceed one year. Further, an H-1A alien shall be admitted to the United States for the validity of the supporting petition.

The Service's implementation of this rule as an interim rule, with provisions for post-promulgation public comment, is based upon the "good cause" exception found at 5 U.S.C. 553(d)(3). Because of changes in the National Council of State Boards of Nursing testing procedures, immediate implementation of the interim rule is necessary to ensure foreign nurses admitted to the U.S. in H-1A status based on possession of temporary licenses an adequate and realistic period of time to prepare for the permanent stat e licensing examination and therefore, continued eligibility for H-1A classification.

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. The regulation merely modifies certain filing procedures for petitions for foreign nurses to make them consistent with industry practices.

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, Sec. 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.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service certifies that she has assessed this rule in light of the criteria in Executive Order 12606 and has determined that it will have no effect on family well-being.

List of Subjects in 8 CFR Part 214

Administrative 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 paragraph (h)(3)(iii)(C);

b. Revising paragraph (h)(3)(v)(B);

c. Revising paragraph (h)(3)(v)(C); and by

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

Sec. 214.2 Special requirements for admission, extension, and maintenance of status.

* * * * *

(h) * * *

(3) * * *

(iii) * * *

(C) Is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to practice as a registered nurse immediately upon admission to the United States, and is authorized under such laws to be employed by the employer. For purposes of this paragraph, the temporary or interim licensing may be obtained immediately after the alien enters the United States.

* * * * *

(v) * * *

(B) After admission to the United States, an H-1A nurse who does not hold a permanent state license must take and pass the examination for state licensure as a registered nurse within six months from the date of his or her initial admission to the United States. After this six-month period of time, the nurse must be granted permanent state licensure in order to maintain his or her eligibility for H-1A classification in the state of employment or any other state or territory of the United States.

(C) A nurse shall automatically lose his or her eligibility for H-1A classification if he or she is no longer performing the duties of a registered professional nurse. Such a nurse is not authorized to remain in employment unless he or she otherwise receives authorization from the Service.

* * * * *

(15) * * *

(ii) Extension periods -- (A) H-1A extension of stay . An extension of stay may be authorized for a period of up to two years for a beneficiary of an H-1A petition. The alien's total period of stay may not exceed five years, except in extraordinary circumstances. An H-1A alien who has been in the United States for a period of five years in such status may receive a one-year extension of stay if it is established by the petitioner that extraordinary circumstances exist which warrant such an extension. Extraordinary circumstances shall exist when the dire ctor finds that termination of the alien's services will impose extreme hardship on the petitioner's business operation or that the alien's services are required in the national welfare, safety, or security interests of the United States. Each request for an extension of stay for the beneficiary of an H-1A petition must be accompanied by a current copy of the Department of Labor's notice of acceptance of the petitioner's attestation on Form ETA 9029. A request for an extension of stay filed in behalf of a n alien who initially entered the United States on the basis of a temporary license must be accompanied by evidence that the alien has remained in a valid H-1A status since his or her initial entry into the United States.

* * * * *

September 16, 1994 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.