UNITED STATES INFORMATION AGENCY
22 CFR Part 514
 
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Final rule.
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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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