10/12/95 J REGULATIONS ON WAIVERS FOR FOREIGN MEDICAL GRADUATES UNITED STATES INFORMATION AGENCY 22 CFR Part 514 (Rulemaking No. 115) Waiver of Two-Year Home-Country Physical Presence Requirement, Foreign Medical Graduates, Exchange Visitor Program. AGENCY: United States Information Agency. ACTION: Final Rule. _________________________________________________________________ SUMMARY: Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103-416) amended Section 212(e) of the Immigration and Nationality Act (8 U.S.C. 1182(e)) and added a new subsection (k) to Section 214 of that Act (8 U.S.C. 1184) regarding waiver of the two-year foreign residence requirement as it applies to foreign medical graduates. An Interim Final Rule with request for comments was published in the Federal Register on April 3, 1995 (60 FR 16785). This final rulemaking amends the Exchange Visitor Program regulations to reflect those legislative changes. DATES: This final rule is effective October 12, 1995. ADDRESS: United States Information Agency, Office of the General Counsel, Rulemaking 115, 301 Fourth Street, SW, Room 700, Washington, DC 20547-0001. FOR FURTHER INFORMATION CONTACT: William G. Ohlhausen, Assistant General Counsel, United States Information Agency, 301 Fourth Street, S.W., Washington, DC 20547; telephone (202) 619-6972. SUPPLEMENTARY INFORMATION: Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 (Pub.L. 103-416), adopted in the closing days of the 103rd Congress, amended provisions of the Immigration and Nationality Act which deal with the two-year foreign residence requirement affecting foreign medical graduates (also known as "FMG's" or "international medical graduates") who were admitted to the United States on the J visa, or who acquired such status after admission to the United States, and who are required to return to the country of their nationality or last residence upon the completion of their participation in an exchange visitor program. The Immigration and Naturalization Service may grant a waiver of the two-year home country physical presence requirement upon the favorable recommendation of the Director of the United States Information Agency. Prior to the recent amendment to Sections 212 and 214 of the Immigration and Nationality Act, there were three bases upon which an alien who is a graduate of a medical school pursuing a program in graduate medical education or training could seek a waiver of the two-year foreign residence requirement. The first basis was the so-called "interested Government Agency" or "IGA" waiver. Under that basis, the Director of the United States Information Agency could recommend a waiver to INS pursuant to the request of an "interested United States Government agency." (Immigration and Nationality Act, as amended, section 212(e) (8 U.S.C. 1182(e); 22 CFR 514.44(a)(2) and (c).) The other bases upon which a J visa foreign medical graduate could seek a waiver of the two-year foreign residence requirement were to apply to the Immigration and Naturalization Service for a waiver on the grounds that the departure of the alien physician from the United States would "impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion." (Immigration and Nationality Act, as amended, section 212(e) (8 U.S.C. 1182(e).) Additionally, all three bases for seeking a waiver required a finding by the Attorney General that the waiver was in the public interest. The enactment of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416) has now provided an additional basis upon which a foreign medical graduate may seek a waiver of the two-year home residence requirement. Section 220(a) of that Act added a provision that authorizes a State Department of Public Health or its equivalent to request the Director of USIA to recommend that INS grant the waiver. However, in addition, the new law requires that the government of the country to which the foreign medical graduate is otherwise contractually obligated to return must furnish the Director of the United States Information Agency with a statement in writing that it has no objection to such waiver, and the foreign medical graduate must demonstrate that he or she has a bona fide offer of full-time employment and must agree that he or she will begin employment within 90 days of receiving a waiver, and must agree to continue to work, for a total of not less than three years, at a health care facility in an area designated by the Secretary of Health and Human Services as having a shortage of health care professionals. (Immigration and Nationality Act, as amended, section 214(k)(1)[8 U.S.C. 1184(k)(1).) Upon the favorable recommendation of the Director of USIA, the Attorney General may grant the waiver. The Attorney General may also change the foreign medical graduate's nonimmigrant status from J-1 to H-1B if the alien meets the requirements under section 248 of the Immigration and Nationality Act (8 U.S.C. 1258). If the foreign medical graduate obtains a waiver under Pub. L. 103-416 and thereafter fails to fulfill the terms of his or her employment contract with the health care facility named in the waiver application, then he or she again becomes subject to the two-year foreign residence requirement and is ineligible to apply for an immigrant visa, permanent residence, or any other change of nonimmigrant status until the two-year foreign residence requirement has been met. (Immigration and Nationality Act, section 214(k)(2)(A) and (B)). Each State is allotted no more than twenty such waivers each fiscal year. The federal fiscal year commences on October 1 and ends the following September 30. The term "State" includes the District of Columbia, Puerto Rico, Guam and the Virgin Islands of the United States. The role of the United States Information Agency under the recent amendments to sections 212(e) and 214 of the Immigration and Nationality Act is limited. Under the amendment to section 212(e), the Commissioner of the Immigration and Naturalization Service will now look to the Director of USIA for a recommendation on foreign medical graduate waiver cases brought "pursuant to the request of a State Department of Public Health, or its equivalent." Section 212(e) was also amended by adding language that makes it clear that waivers requested by a State Department of Public Health, or its equivalent, shall be subject to the requirements of the new section 214(k). Under new section 214(k)(1)(A), the Attorney General will not grant the waiver unless the country to which the foreign medical graduate is otherwise contractually obligated to return furnishes the Director of USIA with a statement in writing that it has no objection to such waiver. Reading amended section 212(e) and new section 214(k) together, the Agency views its role in implementing the statute as including the following: (1) It is to be the recipient of State Department of Public Health applications for waivers for foreign medical graduates who will practice medicine in a geographic area or areas which are designated by the Secretary of Health and Human Services as having a shortage of health care professionals; (2) it is to be the recipient of "no objection" letters from the country to which the applicant is contractually obligated to return; and, (3) it is to review the applications and, where required, no objection letters, determine whether they meet the requirements of the two statutory sections, review the program, policy, and foreign relations aspects of the case, and make a recommendation to the Commissioner of the Immigration and Naturalization Service as to whether the waiver should be granted. The Agency has no statutory role or responsibility with respect to ensuring that the foreign medical graduate has the proper medical credentials or with respect to the foreign medical graduate's eligibility for change of nonimmigrant status or work authorization. Current regulations regarding requests for waiver made by an interested United States Government agency require the requesting agency to determine that the granting of the waiver would be in the public interest. 22 CFR 514.44(c). This Agency then reviews the program, policy, and foreign relations aspects of the case and forwards its recommendation to the Commissioner. 22 CFR 514.44(c). The Agency intends to follow the same practices with respect to requests for waivers made under the recently amended section 212(e) and the new section 214(k) of the Immigration and Nationality Act. The Agency received thirteen letters of comment on the Interim Final Rule. (See Appendix A for list of commenters.) The overwhelming majority of those letters dealt with two issues: (1) Whether the statute required a no objection letter in all cases; and, (2) how is the applicant to determine whether the geographic area in which the foreign medical graduate is to be employed has a "shortage of health care professionals." All of the comment letters were fully considered. With respect to the no objection letters, the Agency notes that the new section 214(k)(1)(A) refers to "an alien who is otherwise contractually obligated to return to a foreign country." (emphasis added.) The phrase "otherwise contractually obligated" is not defined in the statute and there is no legislative history preceding the enactment of the statute which would indicate the specific intent of Congress in using that terminology. Having reviewed the comment letters, the Agency now deems the language "otherwise contractually obligated..." to refer only to those cases where the foreign medical graduate's medical education or training is funded by the government of the graduate's home country. It is the Agency's experience that where a foreign government funds the graduate medical education or training abroad of one of its nationals, it also contractually obligates the foreign medical graduate to return to the home country at the conclusion of the graduate medical education or training. Thus, the Final Rule requires the applicant to furnish the Agency with a no objection letter from the home country only in those instances where the foreign medical graduate's medical education or training is funded by his or her home country's government. Whether or not there is foreign government funding can be determined by examining the face of the foreign medical graduate's Form IAP-66. Where there has been no funding from the government of the home country, there is no requirement that a no objection letter be furnished to the Agency. The new statutory provision (Sec. 220 of Pub. L. 103-416) gives this Agency no role in designating a geographic area or areas as having a shortage of health care professionals. Such designations are made by the Secretary of Health and Human Services. The Secretary of Health and Human Services has advised that applicants for waivers under Section 220 of Public Law 103- 416 should look to the Department's listings of Designated Primary Care Health Professional Shortage Areas ("HPSAs") and Medically Underserved Areas/Medically Underserved Populations ("MUAs/MUPs") in order to determine whether the geographic area or areas in which the foreign medical graduate will be employed has a "shortage of health care professionals" within the meaning of the statute. (See Notice dated September 19, 1995 at 60 FR 48515.) The HPSA listing was last published in the Federal Register on January 21, 1994 (59 FR 3412). A copy of the current MUA/MUP may be obtained from the Division of Shortage Designation, Bureau of Primary Health Care, Department of Health and Human Services, 4350 East-West Highway, Room 9-1D-1, Bethesda, Maryland 20814; Phone (301) 594-0816. Section 220 of Pub. L. 103-416 also contains the term "health care facility," but does not define that term. At least two commenters suggested that the Agency explain what it means by that term. For purposes of this regulation, the Agency deems the Department of Health and Human Services' definition of "medical facility" to be synonymous with "health care facility." See 42 CFR 5.2. Two commenters recommended that the Agency require that the foreign medical graduate provide health care to Medicaid and Medicare beneficiaries. Section 220 of Pub. L. 103-416 contains no such requirement. The Agency does not believe that it has the authority to impose such a requirement. One commenter expressed concern that the Interim Final Rule did not address state physician licensure as a component of this waiver program and suggested that the Agency adopt credentialing standards and procedures as a guide to the states in their screening and selecting of applicants. The Agency believes that licensure is a matter of state regulation and that the Agency has no authority under section 220 of Pub. L. 103-416 to impose licensure requirements. The No Objection Letter - Procedures and Format Current regulations set forth the procedure for obtaining "no objection" letters from the home country and the manner in which such letters are to be sent to the Agency. 22 CFR 514.44(d). With one exception, this final rulemaking provides for the same procedures to be followed with respect to applications for waivers under Pub. L. 103-416. In order to avoid confusion with other applications for waivers based on no objection from the home country (hitherto unavailable to foreign medical graduates), when required, the no objection letter submitted under Pub. L. 103-416 should note clearly that the request for the no objection letter was made pursuant to Pub. L. 103-416. The Agency does not require that a no objection letter be of or on a particular form. The following or similar language will suffice: "Pursuant to Public Law 103-416, the Government of ___________ has no objection if (name and address of foreign medical graduate) does not return to_______________ to satisfy the two-year foreign residency requirement of Section 212(e) of the Immigration and Nationality Act." The Application Package The application for waiver of the two-year home country residence requirement under the provisions of Pub. L. 103-416 is to originate in the designated State Department of Public Health. USIA is not planning to develop any new forms for such application. However the application is to include the following: (1) A letter from the designated official in the State Department of Public Health which identifies the foreign medical graduate and states, if so determined, that it is in the public interest that a waiver of the two-year home residence requirement be granted (Note: See Appendix B hereto for a list of State Departments of Public Health which, as of the date of this Final Rule, have advised the Agency that they intend to participate in this waiver program); (2) an employment contract between the alien and the health care facility, which includes the name and address of the foreign medical graduate and of the employer and the specific geographic area or areas in which the foreign medical graduate will practice medicine. The employment contract shall include a statement by the foreign medical graduate agreeing to the contractual requirements set forth in section 214(k)(1)(B) and (C) of the Immigration and Nationality Act. The term of the employment contract shall be at least three years; (3) evidence that the area or areas of employment stipulated in the employment contract are in a geographic area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals; (4) copies of all forms IAP-66 issued to the foreign medical graduate seeking the waiver; (5) a completed data sheet, copies of which will be made available by the Agency to each State Department of Public Health; and (6) because of the numerical limitations on the approval of waivers under Pub. L. 103-416 each application from a State Department of Public Health shall be numbered sequentially. Should USIA not grant a favorable recommendation on a given application, the State Department of Public Health will be so notified and will be advised that the number may be used on another application. If a State Department of Public Health files in excess of twenty applications during one fiscal year, the Agency will give priority to the first twenty sequentially numbered applications. Application Period Under Public Law-103-416 Section 220(c) of Pub. L. 103-416 states that "The amendments made by this section shall apply to aliens admitted to the United States under section 101(a)(15)(J) of the Immigration and Nationality Act, or acquiring such status after admission to the United States, before, on, or after the date of enactment of this Act and before June 1, 1996." The Agency believes that the date of June 1, 1996 applies to the status of the foreign medical graduate on that date and not to the new waiver program itself. In other words, if the foreign medical graduate was admitted to the United States on a J visa or acquired a J visa prior to June 1, 1996 in order to pursue graduate medical education or training, he or she would be eligible to apply for a waiver under the provisions of Pub. L. 103-416 at any time in the future. Regulatory Analysis and Notices 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 Executive Order 12291, nor does this rule have Federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order 12612. The information collection requirements contained in this rule have been presented to the Office of Management and Budget for clearance pursuant to the provisions of the Paperwork Reduction Act. Dated: October 4, 1995 ____________________ Les Jin General Counsel List of Subjects in 22 CFR part 514 Cultural exchange programs, Reporting and recordkeeping requirements. The interim rule published at 60 FR 16785, April 3, 1995, amending 22 CFR 514, section 514.44, is adopted as final with the following changes. 1. The authority citation for Part 514 continues to read as follows: Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of 3/27/78, 3 CFR, 1978 Comp. p. 168. 2. Section 514.44(e) is revised to read as follows: "(e) Requests for waiver from a State Department of Public Health, or its equivalent, on the basis of Public Law 103- 416. (1) Pursuant to Public Law 103-416, in the case of an alien who is a graduate of a medical school pursuing a program in graduate medical education or training, a request for a waiver of the two-year home-country physical presence requirement may be made by a State Department of Public Health, or its equivalent. Such waiver shall be subject to the requirements of section 214(k) of the Immigration and Nationality Act (8 U.S.C. 1184(k)) and this 514.44. (2) With respect to such waiver under Public Law 103- 416, if such alien is contractually obligated to return to his or her home country upon completion of the graduate medical education or training, the Director of the United States Information Agency is to be furnished with a statement in writing that the country to which such alien is required to return has no objection to such waiver. The no objection statement shall be furnished to the Director in the manner and form set forth in paragraph (d) of this section and, additionally, shall bear a notation that it is being furnished pursuant to Public-Law 103- 416. (3) The State Department of Public Health, or equivalent agency, shall include in the waiver application the following: (i) A completed "Data Sheet." Copies of blank data sheets may be obtained from the Agency's Exchange Visitor Program office. (ii) A letter from the Director of the designated State Department of Public Health, or its equivalent, which identifies the foreign medical graduate by name, country of nationality or last residence, and date of birth, and states that it is in the public interest that a waiver of the two-year home residence requirement be granted; (iii) An employment contract between the foreign medical graduate and the health care facility named in the waiver application, to include the name and address of the health care facility, and the specific geographical area or areas in which the foreign medical graduate will practice medicine. The employment contract shall include a statement by the foreign medical graduate that he or she agrees to meet the requirements set forth in Section 214(k) of the Immigration and Nationality Act. The term of the employment contract shall be at least three years and the geographical areas of employment shall only be in areas, within the respective state, designated by the Secretary of Health and Human Services as having a shortage of health care professionals; (iv) Evidence establishing that the geographic area or areas in the state in which the foreign medical graduate will practice medicine are areas which have been designated by the Secretary of Health and Human Services as having a shortage of health care professionals. For purposes of this paragraph, the geographic area or areas must be designated by the Department of Health and Human Services as a Health Professional Shortage Area ("HPSA") or as a Medically Underserved Area/Medically Underserved Population ("MUA/MUP"). (v) Copies of all forms IAP-66 issued to the foreign medical graduate seeking the waiver; (vi) A copy of the foreign medical graduate's curriculum vitae; (vii) If the foreign medical graduate is otherwise contractually required to return to his or her home country at the conclusion of the graduate medical education or training, a copy of the statement of no objection from the foreign medical graduate's country of nationality or last residence; and, (viii) Because of the numerical limitations on the approval of waivers under Public Law 103-416, i.e., no more than twenty waivers for each State each fiscal year, each application from a State Department of Public Health, or its equivalent, shall be numbered sequentially, beginning on October 1 of each year. (4) The Agency's Waiver Review Branch shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Commissioner. Except as set forth in 514.44(g)(4)(i), the recommendation of the Waiver Review Branch shall constitute the recommendation of the Agency. * * * * * * * * * * * BILLING CODE 8230-01 Appendix A to the Preamble Comments were received from the following individuals and organizations: Department of Health, State of Alabama Illinois Department of Public Health Indiana State Department of Health Mezzullo & McCandlish, Attorneys at Law Palmer & Dodge, Attorneys at Law Dept. of Health and Mental Hygiene, State of Maryland Office of Rural Health Policy, Health Resources & Services Adm., Public Health Service, U.S. Dept. of HHS South Carolina Department of Health and Environmental Control Oklahoma State Department of Health Center for Rural Health, University of Kentucky The Federation of State Medical Boards of the United States, Inc. Center for Rural Health, School of Med., Univ. of N. Dakota Hon. Kent Conrad, United States Senator Appendix B to the Preamble State Public Health Departments Participating in the Public Law 103-416 Waiver Program, as of date of publication of Final Rule: ALABAMA Donald E. Williamson, M.D. State Health Officer Alabama Department of Public Health 434 Monroe Street Montgomery, AL 36130-3017 ARIZONA Mr. Phil Lopez, Office Chief Office of Health Planning, Evaluation and Statistics Arizona Department of Health Services 1740 West Adams, Room 312 Phoenix, AZ 85007 Signature must be from: Jack Dillenberg, D.D.S., M.P.H. ARKANSAS Charles McGrew, Director Section of Health Facility Services & Systems Arkansas Department of Health 4815 W. Markham, Slot 39 Little Rock, AR 72205 DELAWARE Ms. Jane Rhoe-Jones Office of Rural Health Division of Public Health P.O. Box 637 Dover, DE 19903 FLORIDA Richard G. Hunter, Ph.D. Department of Health and Rehabilitative Services State Health Office 1317 Winewood Boulevard Tallahassee, FL 32399-0700 GEORGIA Ms. Rita Salain, Director Office of Rural Health and Primary Care 2 Peachtree Street 6th Floor Annex Atlanta, GA 30303 HAWAII Mr. William H. Dendle, III Office of Planning, Policy and Program Development 1250 Punchbowl Street, Room 340 Honolulu, HI 96813 Signature must be from: Jeanette Takamura, Ph.D., Deputy Director, Hawaii State Health Department of Health ILLINOIS John R. Lumpkin, M.D. Director of Public Health Illinois Department of Public Health 535 West Jefferson Street Springfield, IL 62761 Contact person: Ms. Mary Catherine Ring Chief, Center for Rural Health (use same mailing address as for the Director listed above) INDIANA Keith Main, Ed.D. Office of Policy and Research Indiana State Department of Health 1330 West Michigan Street P.O. Box 1964 Indianapolis, IN 46206-1964 KENTUCKY Ms. Danise Newton, Manager Primary Care Branch Department for Health Services 275 East Main Street Frankfort, KY 40621 MAINE Kevin W. Concannon, Commissioner Department of Human Services #11 State House Station Augusta, ME 04333-0011 Contact Person: Sophie Glidden, Director Office of Primary Health Care Department of Human Services #11 State House Station Augusta, ME 04333-0011 MASSACHUSETTS Ms. Sally Fogarty Department of Public Health 150 Tremont Street Boston, MA 02111 Applications must be signed by: Mr. David H. Mulligan Commissioner of Public Health (address is the same as Sally Fogarty) MICHIGAN Ms. Vernice Davis Anthony, Director Michigan Department of Public Health 3423 N. Martin Luther King Jr. Blvd. P.O. Box 30195 Lansing, MI 48909 MINNESOTA Ms. Chari Konerza, Director Minnesota Office of Rural Health and Primary Care P.O. Box 64975 St. Paul, MN 55164 MISSISSIPPI Mr. Harold Armstrong State Department of Health P.O. Box 1700 Jackson, MS 39215-1700 MISSOURI Coleen Kivlahan, M.D., M.S.P.H., Director Missouri Department of Health P.O. Box 570 Jefferson City, MO 65102 Contact: Mr. Alan Welles (at same address) may also sign applications). MONTANA Mr. Robert J. Robinson, Director Department of Health & Environmental Sciences Cogswell Building P.O. Box 200901 Helena, MT 59620-0901 NEBRASKA Mark B. Horton, M.D., M.S.P.H. Director Nebraska Department of Health 301 Centennial Mall South P.O. Box 95007 Lincoln, NE 68509-5007 NEVADA Donald S. Kwalick, M.D., MPH State Health Officer Nevada State Health Division 505 E. King Street, Room 201 Carson City, NV 89701 NEW MEXICO J. Alex Valdez, Secretary State of New Mexico Department of Health 1190 St. Francis Drive P.O. Box 261110 Sante Fe, NM 8750-6110 NEW YORK Ms. Karen Schimke Executive Deputy Commissioner New York State Department of Health Empire State Plaza, Corning Tower Albany, NY 12237 Contact person: Edward Salsberg Director of the Bureau of Health Resources Development NORTH CAROLINA Mr. James D. Bernstein, Director North Carolina Office of Rural Health and Resource Development 311 Ashe Avenue Raleigh, NC 27606 NORTH DAKOTA Jon R. Rice, M.D. State Health Officer State Department of Health & Consolidated Laboratories 600 East Boulevard Avenue Bismarck, ND 58505-0200 OKLAHOMA Robert D. Vincent, Ph.D. Deputy Commissioner Health Promotion and Policy Analysis 1000 N.E. 10th Street Oklahoma City, OK 73117-1299 RHODE ISLAND Patricia Nolan, M.D., M.P.H. Director, Rhode Island Department of Health Cannon Building 3 Capitol Hill Providence, RI 02908-5097 SOUTH CAROLINA Mr. Mark Jordan Director, Office of Primary Care Department of Health and Environmental Control 2600 Bull Street Columbia, SC 29201 SOUTH DAKOTA Ms. Barbara A. Smith Secretary South Dakota Department of Health 445 East Capitol Avenue Pierre, SD 57501-3185 TENNESSEE Dr. Fredia Wadley Commissioner Tennessee Department of Health 9th Floor, Tennessee Tower 312 8th Avenue North Nashville, TN 37247-0101 TEXAS Dr. David Smith Commissioner of Health Texas Department of Health 1100 West 49th Street Austin, TX 78756-3199 VERMONT Jan K. Carney, M.D, M.P.H Commissioner Vermont Department of Health 108 Cherry Street P.O. Box 70 Burlington, VT 05402 WASHINGTON Mr. Verne A. Gibbs, Director Washington State Department of Health Community & Rural Health P.O. Box 47834 Olympia, WA 98504-7834 WEST VIRGINIA Ms. Gretchen O. Lewis, Secretary (SIGNATOR) Department of Health & Human Resources Building 3, Room 206 State Capitol Complex Charleston, WV 25305 Applications to go to following for review: Linda Atkins, Director Health Professions Recruitment Program 1411 Virginia Street, East Charleston, WV 25301 WISCONSIN John D. Chapin, Interim Administrator Wisconsin Division of Health P.O. Box 309 Madison, WI 53701-0309