UNITED STATES INFORMATION AGENCY 22 CFR Part 514 Exchange Visitor Program AGENCY: United States Information Agency. ACTION: Proposed rule with request for comments. ----------------------------------------------------------------- SUMMARY: This proposed rule would amend existing regulations governing the Agency's internal Exchange Visitor Waiver Review Board and requests for waiver of the two-year home-country physical presence requirement made by interested United States Government agencies on behalf of an exchange visitor. Changes in the regulations providing for the Agency's Waiver Review Board are proposed to reconcile them with Agency policy and to control the number of cases mandatorily referred to the Board. The Agency expects that the number of cases afforded Board review will be reduced. Changes to the regulations governing waiver requests by interested United States Government agencies are believed necessary to provide for uniform administration of such requests. The Agency anticipates that the proposed changes will increase administrative efficiency and speed of response and also ensure that multiple interested U.S. Government agency (or state) waiver requests on behalf of an individual exchange visitor are not processed. DATES: Comments regarding this proposed rule will be accepted until November 4, 1996. ADDRESSES: Comments may be mailed to Rulemaking Clerk, Room 700, Office of General Counsel, United States Information Agency, 301 4th Street, SW., Washington, DC 20547. FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Assistant General Counsel, United States Information Agency, 301 4th Street, SW., Washington, DC 20547; Telephone, (202)619-6829. SUPPLEMENTARY INFORMATION: Under the aegis of the Exchange Visitor Program, some 175,000 foreign nationals come to this country to work, study, or train in the United States annually. As part of the public diplomacy efforts of the United States Government, these foreign nationals enter the United States as participants in the Exchange Visitor Program which seeks to promote peaceful relations and mutual understanding with other countries through educational and cultural exchange programs. Accordingly, many exchange visitors entering the United States are subject to a statutory provision, set forth at 8 U.S.C. 1182(e) (section 212(e) of the Immigration and Nationality Act), which requires that they return to their home country for a period of two years to share with their countrymen the knowledge, experience and impressions gained during their sojourn in the United States. Foreign nationals entering the United States as Exchange Visitor Program participants are subject to the return home requirement if they: (i) Received U.S. or foreign government financing for any part of their studies or training in the U.S.; (ii) studied or trained in a field deemed of importance to their home government and such field is on the "skills list" maintained by the Agency in consultation with foreign governments; or, (iii) entered the U.S. to pursue graduate medical education or training. An exchange visitor subject to this requirement is not eligible for an H or L visa, or legal permanent resident status until the return-home requirement is fulfilled or waived. If subject to the two-year return-home requirement, an exchange visitor may seek a waiver of such requirement. The bases upon which a waiver may be granted are: (i) A no objection statement from visitor's home government; (ii) exceptional hardship to the visitor's U.S. citizen (or legal permanent resident) spouse or child; (iii) a request, on the visitor's behalf, by an interested United States Government agency; (iv) a reasonable fear of persecution if the visitor were to return to his or her home country; and, (v) a request by a state on behalf of an exchange visitor who has pursued graduate medical education or training in the U.S. Interested U.S. Government Agency Waiver Requests The Agency's Exchange Visitor Program Services, Waiver Review Branch, is responsible for processing waiver applications. Last year, this branch received approximately 6,000 waiver applications, approximately 95 percent of which were based upon either a no objection statement from the visitor's home government or a request from an interested government agency. Over the past four years, the number of interested government agency requests submitted to the Agency has increased approximately five-fold to some 1,700 annually for calendar year 1995. The vast majority of interested government agency requests processed by the Agency involve foreign medical graduates who entered the United States to pursue graduate medical education or training. At present, the Department of Veterans Affairs, the Department of Housing and Urban Development, the Department of Agriculture, and the Appalachian Regional Commission will act as an interested government agency on behalf of a foreign medical graduate seeking a waiver of his or her two-year home-country physical presence requirement. In return for agency request, the foreign medical graduate must agree to practice patient care in a geographic area designated by the Secretary of Health and Human Services as either a Primary Care Health Professional Shortage Area ("HPSA"), or Medically Underserved Area ("MUA"), or psychiatric care in a Mental Health Professional Shortage Area or to work at a facility operated by the Department of Veterans Affairs. For years, the Department of Veterans Affairs and the Appalachian Regional Commission were the only agencies making requests for waivers on behalf of these foreign medical graduates, but in the past three years the Department of Agriculture and the Department of Housing and Urban Development also have begun to act on their behalf. With the entry into the waiver process of these two additional agencies, inconsistency in the administration of waiver requests among the different agencies has created a degree of confusion in the administrative process. Further, foreign medical graduates have also pursued concurrent waiver requests with multiple agencies. These concurrent requests reflect conflicting commitments or are duplicative and are therefore inappropriate, waste limited administrative staff resources, and do not further the requesting agency's mission and policy objectives. Further, such concurrent requests are unfair to the communities named in the unapproved applications given the considerable expenditure of resources that local communities devote to the waiver process. Accordingly, the Agency proposes to amend Sec. 514.44(c) to both provide uniformity to this process and prevent the filing of concurrent waiver requests. Waiver Review Board An increase in the number of interested government agency and "no objection" waiver requests has also placed an increased burden on the Agency's internal Waiver Review Board. Many of these waiver requests involve exchange visitors who have received government funding for part or all of their exchange activities. Current regulations require that such cases be referred to the Waiver Review Board if the government sponsor that has provided funding objects to the exchange visitor's receiving a waiver. Other circumstances that require automatic referral to the Waiver Review Board are set forth in 22 CFR 514.44(g). Given the increased number of waiver requests and the questionable value to program goals added by the Waiver Review Board process in certain types of mandatorily-referred cases, the Agency has identified a need to streamline the waiver review process and to reduce significantly the number of waiver applications routinely or mandatorily referred to the Waiver Review Board for decision. Further, organizational and staffing changes within the Agency's Exchange Visitor Program Services unit have resulted in the abolishment of the position of Director, Exchange Visitor Program Services and an alteration of the duties of the Waiver Branch Chief. The loss of the Director position has, in turn, rendered certain procedures set forth in Sec. 514.44 (g) and (h) no longer germane. Accordingly, the Agency proposes new provisions to reflect the administrative changes in the Waiver Review Branch and to adjust the existing requirement of automatic referral to the Board of certain cases. Comment The Agency invites comments regarding this proposed rule notwithstanding the fact that it is under no legal requirement to do so. The oversight and administration of the Exchange Visitor Program are deemed to be foreign affairs functions of the United States Government. The Administrative Procedures Act, 5 U.S.C. 553(a)(1), (1989) specifically exempts foreign affairs functions from the rulemaking requirements of the Act. The Agency extends a 60-day public comment period. In response to suggestions and requests from immigration practioners, the Agency is also requesting public comment on certain matters related to this proposed rule but not set forth therein. Specifically, the Agency welcomes comment regarding the need for and merits of non-compete and punitive damages clauses that are set forth in contracts between local health facilities and foreign medical graduates receiving a waiver in order to work at such facility. These contractual clauses impose limitations upon the geographical area in which waiver recipients may practice medicine at the end of the employment contract and also penalize waiver recipients who fail to complete their contractual obligations by providing the health care facility the opportunity to pursue significant monetary damages against the waiver recipient. It is the Agency's belief that some, but not all, of these contracts contain such provisions and the Agency is accordingly interested in learning whether such provisions should be uniformly mandated. Further, based upon suggestions from the private bar, the Agency is interested in comment that discusses the need for and merits of an internal audit procedure for use by federal agencies or departments making interested government agency waiver requests. The Agency believes that such internal audit procedures could safeguard the integrity of the waiver request process. In accordance with 5 U.S.C. 605(b), the Agency certifies that this rule does not have a significant adverse economic impact on a substantial number of small entities. This rule is not considered to be a major rule within the meaning of section 1(b) of E.O. 12291, nor does it have federal implications warranting the preparation of a Federalism Assessment in accordance with E.O. 12612. List of Subjects in 22 CFR Part 514 Cultural Exchange programs. Dated August 29, 1996. R. Wallace Stuart, Acting General Counsel. Accordingly, 22 CFR part 514 is amended as follows: PART 514--EXCHANGE VISITOR PROGRAM 1. The authority citation for part 514 continues to read as follows: Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-1442, 2451-2460: Reorganization Plan No 2 of 1977, 42 FR 62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048 43 FR 13361, 3 CFR, 1978 Comp. p 168; USIA Delegation Order No, 85-5 (50 FR 27393). 2. Section 514.44 is amended by removing paragraph (h) and revising paragraphs (c) and (g) to read as follows: Sec. 514.44 Two-year home-country physical presence requirement. * * * * * (c) Requests for waiver made by an interested United States Government Agency. (1) A United States Government agency may request a waiver of the two-year home-country physical presence requirement on behalf of an exchange visitor if such exchange visitor is actively and substantially involved in a program or activity sponsored by or of interest to such agency. (2) A United States Government agency requesting a waiver shall submit its request in writing and fully explain why the grant of such waiver request would be in the public interest and the detrimental effect that would result to the program or activity of interest to the requesting agency if the exchange visitor is unable to continue his or her involvement with the program or activity. (3) A request by a United States Government agency shall be signed by the head of the agency, or his or her designee, and shall include copies of all IAP-66 forms issued to the exchange visitor, his or her current address, and his or her country of nationality or last legal permanent residence. (4) A request by a United States Government agency, excepting the Department of Veterans Affairs, on behalf of an exchange visitor who is a foreign medical graduate who entered the United States to pursue graduate medical education or training, and who is willing to provide primary patient care in a designated Primary Medical Car Health Professional Shortage Area, or a Medically Underserved Area, or psychiatric care in a Mental Health Professional Shortage Area, shall, in addition to the requirements set forth in Sec. 514.44 (c)(2) and (3), include: (i) A copy of the employment contract between the foreign medical graduate and the health care facility at which he or she will be employed. Such contract shall specify a term of employment of not less than three years and that the foreign medical graduate is to be employed by the facility for the purpose of providing primary medical care in a designated Primary Medical Care Health Professional Shortage Area or designated Medically Underserved Area ("MUA") or psychiatric care in a designated Mental Health Professional Shortage Area. (ii) A statement, signed and dated by the head of the health care facility at which the foreign medical graduate will be employed, that the facility is located in an area designated by the Secretary of Health and Human services as a Medically Underserved Area or Primary Medical Care Health Professional Shortage Area or Mental Health Professional Shortage Area. The statement shall also list the Health Professional Shortage Area or Medically Underserved Area identifier number assigned to the area by the Secretary of Health and Human Services. (iii) A statement, signed and dated by the foreign medical graduate exchange visitor that shall read as follows: I, ____________________ (name of exchange visitor) hereby declare and certify, under penalty of the provisions of 18 U.S.C. 1101, that: (1) I have sought or obtained the cooperation of __________________ (enter name of United States Government agency which will submit/is submitting an IGA request on behalf of the Exchange Visitor to obtain a waiver of the 2-year home residence requirement); and (2) I do not now have pending nor will I submit during the pendency of this request, another request to any United States Government department or agency or any State Department of Public Health, or equivalent, to act on my behalf in any matter relating to a waiver of my two-year home-country physician presence requirement. (iv) Evidence that unsuccessful efforts have been made to recruit an American physical for the position to be filled by the exchange visitor. (5) Except as set forth in Sec. 514.44(g)(4), infra, the recommendation of the Waiver Review Branch shall constitute the recommendation of the Agency and such recommendation shall be forwarded to the Commissioner. * * * * * (g) The Exchange Visitor Waiver Review Board. (1) The Exchange Visitor Waiver Review Board ("Board") shall consist of the following Agency officers: (i) The Associate Director of the Bureau of Educational and Cultural Affairs, or his or her designee; (ii) The Director of the geographic area office responsible for the geographical area of the waiver applicant, or his or her designee; (iii) The Director of the Office of Congressional and Intergovernmental Affairs, or his or her designee; (iv) The Director of the Office of Academic Exchange, or his or her designee; and (v) The Director of the Office of Research, or his or her designee. (2) A person who has had substantial prior involvement in a particular case referred to the Board may not be appointed to serve on the Board for that particular case unless the General Counsel determines that the individual's inclusion on the Board is otherwise necessary or practicably unavoidable. (3) The Associate Director of the Bureau of Educational and Cultural Affairs, or his or her designee, shall serve as Board Chairman. No designee under this paragraph (g)(3) shall serve for more than 2 years. (4) Cases will be referred to the Board at the discretion of the Branch Chief, Waiver Review Branch, of the Agency's office of Exchange Visitor Program Services. The Waiver Review Branch shall prepare a summary of the particular case referred and forward it along with a copy of the relevant file to the Board Chairman. The Chief, Waiver Review Branch, or his or her designee, may, at the Chairman's discretion, appear and present facts related to the case but shall not participate in Board deliberations. (5) The Chairman of the Board shall be responsible for convening the Board and distributing all necessary information to its members. Upon being convened, the Board shall review the case file and weigh the request against the program, policy, and foreign relations aspects of the case. (6) At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Branch Chief, Waiver Review Branch. (7) The recommendation of the Board in any case reviewed by it shall constitute the recommendation of the Agency and such recommendation shall be forwarded to the Commissioner by the Branch Chief, Waiver Review Branch. [FR Doc. 96-22586 Filed 9-4-96; 8:45 am] BILLING CODE 8230-01-M