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Processing of Certain H-1A Nurses Under Public Law 104-302[62 FR 10422] [FR 8-97]
FEDERAL REGISTER CITE:
62 FR 10422
March 7, 1997
BILLING CODE 6560-50
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
Processing of Certain H-1A Nurses Under Public Law 104-302
Immigration and Naturalization Service, Justice.
Interim rule with request for comments.
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.
The interim rule is effective March 7, 1997. Written comments must be submitted on or before May 6, 1997.
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.
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 definitio
n 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.
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 cla
ssification 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.
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 petitione
r 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 wh
o 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.
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 Nonimmigrant Worker, filed by their employer at the appropria
te 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 w
ith 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 thi
s 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.
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 hel
d 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.
This interim rule is effective on publication in the
, 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).
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.