UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Final rule.
SUMMARY: This rule amends existing regulations governing 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 to the regulations governing waiver requests by interested United States Government agencies are necessary to provide for uniform administration of such requests. The Agency anticipates that such changes will increase administrative efficiency and speed of response and also ensure that multiple waiver requests on behalf of an individual exchange visitor are not processed.
EFFECTIVE DATE: This regulation is effective May 28, 1997.
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 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 Agency administered 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. 212(e), 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 nations entering the United States as Exchange Visitor Program participants are subject to the return home requirement if they: (i) receive U.S. or foreign government financing for any part of their studies or training in the U.S.; (ii) studies or trained in a field deemed or 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 Section 212(e) 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 the visitor's home government; (ii) exceptional hardship to the visitor's U.S. citizen 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. Section 212(e) also prohibits a foreign medical graduate from applying for a waiver on the basis of a no objection statement from the visitor's home government. The exact number of exchange visitors that are subject to the 212(e) requirement is not known; but, a careful examination of this matter would suggest that upwards of 100,000 exchange visitors are in fact currently subject to the return home requirement.
Interested U.S. Government Agency Waiver Requests
The Agency Exchange Visitor Program Services, Waiver Review Branch, is responsible for processing waiver applications. Last year, this branch processed over 6,000 waiver applications, 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 three years, the number of interested government agency requests submitted to the Agency has increased five-fold to some 1700 annually.
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. Currently, 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 order to work in health professional shortage area. The Department of Veterans Affairs has acted on behalf of foreign medical graduates in the past but is not prevented from doing so by Section 622 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Department of Housing and Urban Development has also acted on behalf of foreign medical graduates in the past but has now placed a moratorium on such requests.
As explained in the supplementary information of the Agency's September 4, 1996 Federal Register announcement of proposed rules for this type of waiver request, inconsistency in the administration of such requests among the participating 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 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.
To address these concerns, the Agency adopts at 22 CFR 514.44(c)(4) specific provisions regarding the documentation that must accompany an interested government agency waiver request submitted on behalf of a foreign medical graduate. These requirements were developed by an inter-agency working group comprised of representatives from the Departments of Health and Human Services, Housing and Urban Development, Agriculture and Veterans Affairs as well as the Appalachian Regional Commission. These requirements are designed to enhance the underlying programmatic objectives that the submitting agency seeks to meet, viz., making primary medical care available to Americans living in areas without adequate access to medical care.
To this end, an employment contract that specifies the foreign medical graduate will provide not less than 40 hours per week of primary medical care, for a period of not less than three years, in a designated primary care Health Professional Shortage Area ("HPSA") or designated Medically Underserved Area (``MUA'') or psychiatric care in a designated Mental Health Professional Shortage Area ("MHPSA") will be required. As the underlying policy objective for an agency to act on behalf of a foreign medical graduate is to provide primary health care to the residents of such areas, the contract shall not include a non-compete clause enforceable against the foreign medical graduate. This provision is adopted to ensure that the foreign medical graduate is not forced to leave a HPSA, MHPSA, or MUA at the end of his or her contract. In similar fashion, the Agency also sought public comment regarding the inclusion of liquidated damages clauses in these contracts of employment. No clear evidence exists that such clauses either enhance or are detrimental to the underlying policy objectives of interested government agencies and accordingly, no regulatory provision governing this matter is adopted.
In addition to a copy of the employment contract, each waiver request filed on behalf of a foreign [[Page 28803]] medical graduate by an interested United States Government agency must include two written statements. The first statement must be signed and dated by the head of the health care facility that will employ the foreign medical graduate. The head of the facility will attest that the facility is located in a designated HPSA, MHPSA, or MUA and that the facility provides medical care to Medicaid or Medicare eligible and indigent uninsured patients. These requirements must be met in order to satisfy the underlying program and policy interests of the requesting agency. A second statement must be submitted by the foreign medicalgraduate that declares he or she does not have a pending interested federal agency or state department of health request awaiting administrative action and will not request that another agency pursue a waiver request on his behalf while the immediate request is being processed.
Nine comments were received in response to the Notice of Proposed Rulemaking published on September 4, 1996. A detailed comment was submitted by the American Immigration Lawyers Association. This comment presented an argument that agencies should request waivers on behalf of specialists as well as primary care physicians and that the physical location of the health care facility that employs the foreign medical graduate need not be physically located in a HPSA, MHPSA, or MUA. Other comments received advanced similar arguments. The working group carefully considered, but decided against, these suggestions because of the predicted over-supply of specialists in the United States, the greater need for primary medical care in health professional shortage areas, and in order to confirm with such programs as the National Health Service Corps established within the United States to provide health care in shortage areas.
Further, specific unmet needs for physicians in prisons, mental hospitals, or specific population groups may be met by obtaining the required designation from the Department of Health and Human Services. Designation of these facilities or population groups as site-specific HPSA, MHPSA, or MUA areas will allow foreign medical graduates to provide primary care services or psychiatric care to these populations Such designation takes into account the suggestion in certain comments received by the Agency, that limiting the practice of foreign medical graduates to the geographic environs of a HPSA, MHPSA, or MUA would prevent these site-specific populations from receiving primary care or psychiatric care services.
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: May 21, 1997. 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 revising paragraph (c) 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 medical care in a designated primary care 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 not less than 40 hours per week of primary medical care, i.e. general or family practice, general internal medicine, pediatrics, or obstetrics and gynecology, in a designated primary care Health Professional Shortage Area or designated Medically Underserved Area (``MUA'') or psychiatric care in a designated Mental Health Professional Shortage Area. Further, such employment contract shall not include a non-compete clause enforceable against the foreign medical graduate. (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 and provides medical care to both Medicaid or Medicare eligible patients and indigent uninsured patients. The statement shall also list the primary care Health Professional Shortage Area, Mental Health Professional Shortage Area, or Medically Underserved Area/Population identifier number of the designation (assigned by the Secretary of Health and Human Services), and shall include the FIPS county code and census tract or block numbering area number (assigned by the Bureau of the Census) or the 9-digit zipcode of the area where the facility is located.
(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 I do not now have pending nor am I [[Page 28804]] submitting 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, other than ____________________ (insert name of United States Government Agency requesting waiver) to act on my behalf in any matter relating to a waiver of my two-year home-country physical presence requirement. (iv) Evidence that unsuccessful efforts have been made to recruit an American physician for the position to be filled.
(5) Except as set forth in Sec. 514.44(f)(4), infra, the recommendation of the Waiver Review Branch shall constitute the recommendation of the Agency and such recommendation shall beforwarded to the Commissioner.
* * * * * [FR Doc. 97-13918 Filed 5-27-97; 8:45 am] BILLING CODE 8230-01-M
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