[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-569]
[[Page Unknown]]
[Federal Register: January 11, 1994]
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DEPARTMENT OF JUSTICE
8 CFR Part 214
[INS 1452-92]
RIN 1115-AC72
Temporary Alien Workers Seeking H-1B Classification Under the
Immigration and Nationality Act
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule implements certain provisions of the
Miscellaneous and Technical Immigration and Naturalization Amendments
of 1991 (MTINA) by establishing petitioning procedures for H-1B
nonimmigrants and new eligibility criteria for foreign physicians
seeking employment in the medical professions in the United States.
This rule contains the new procedures required by the legislation and
makes Service policy consistent with the intent of Congress. This rule
sets forth the new filing procedures and eligibility standards and
clarifies for businesses, academic institutions, and the general public
the requirements for classification and admission under section
101(a)(15)(H) of the Immigration and Nationality Act (ACT).
EFFECTIVE DATE: January 11, 1994.
FOR FURTHER INFORMATION CONTACT:
John W. Brown, Senior Immigration Examiner, Adjudications Division,
Immigration and Naturalization Service, 425 I Street, NW., room 7215,
Washington, DC 20536, telephone (202) 514-3240.
SUPPLEMENTARY INFORMATION: The Immigration Act of 1990 (IMMACT), Public
Law 101-649, November 29, 1990, dramatically altered the H-1B
nonimmigrant classification. IMMACT, among other things, removed
prominent aliens from the H-1B nonimmigrant classification and required
prospective employers to obtain an approved labor condition application
from the Department of Labor prior to the admission of the H-1B
nonimmigrant into the United States.
In response to concerns raised by a number of interested parties,
Congress incorporated numerous provisions in the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991, Public Law
102-232, December 12, 1991, which amended some of the provisions
created by IMMACT. Specifically, Public Law 102-232 amended the
definition of an H-1B nonimmigrant alien by removing the requirement
that the intending employer obtain an approved labor condition
application prior to the alien's admission into the United States,
amended the criteria which the Secretary of Labor could use in invoking
the penalty provisions relating to misrepresentations and omissions on
the labor condition application, and, lastly, addressed the issue of
foreign physicians coming to the United States to perform services in
the medical profession.
On April 9, 1992, the Service published in the Federal Register at
57 FR 12177, an interim rule with requests for comments to incorporate
the changes contained in Public Law 102-232. Interested persons were
invited to submit written comments on or before June 8, 1992.
Discussion of Comments on the Interim Regulations
The Service received comments from sixteen individuals on the
interim rule. Some of the commenters addressed more than one issue in
their comments. A number of commenters offered suggestions and
improvements for the final rule, many of which have been adopted in the
final rule. The following discussion addresses the issues raised,
provides the Service's position on the issues, and, indicates the
revisions adopted in the final rule based on the public's comments.
Labor Condition Application--Sec. 214.2(h)(4)(i)(B)(1)
Prior to the passage of Public Law 102-232, petitioners in H-1B
cases were required to submit a copy of an approved labor condition
application with the petition. Public Law 102-232 amended this language
by requiring only that petitioners attach a certification from the
Secretary of Labor indicating that the petitioner has filed a labor
condition application with the Secretary of Labor. The interim rule
contained language reflecting this amendment to the statute.
One commenter suggested that a petitioner could meet this statutory
requirement by merely submitting a copy of the labor condition
application without waiting for the Department of Labor to certify the
labor condition application. However, submitting a copy of the labor
condition application is not sufficient to show that the application
has been filed. Only when the application has been certified can the
Service be assured that the petitioner has complied with the filing
requirement. Therefore, the Service did not adopt this recommendation.
One commenter noted that IMMACT imposed a number of penalties on
employers who failed to meet certain conditions of the labor condition
application process. Section 212(n)(2)(C)(ii) of the Act states that in
those situations the Attorney General shall not approve petitions filed
by the offending employer under section 204 or 214(c) of the Act for a
period of one year. The commenter noted that Sec. 214.2(h)(4)(i)(B)(5)
of the interim regulation indicated only that the Attorney General
shall not approve petitions under the H-1B category. In response to
this comment the final rule will be amended to indicate that this
provision applies to petitions filed under both sections 204 and 214(c)
of the Act as required by statute.
Return Transportation Provision--Sec. 214.2(h)(4)(iii)(E) and
Sec. 214.2(h)(6)(vi)(E)
One commenter suggested that petitioners in H-1B and H-2B cases
should be required to post a bond in order to prove to the Service that
the return transportation requirement will be met. It is the opinion of
the Service that the statute and regulations clearly state the
requirement that a petitioner in these instances is responsible for the
alien beneficiary's return transportation. The filing of the petition
is sufficient assurance to the Service that the petitioner will comply
with this requirement.
Criteria and Documentary Requirements for Physicians--
Sec. 214.2(h)(4)(viii)
Prior to the passage of IMMACT, alien graduates of foreign medical
schools were excluded from classification as H-1B nonimmigrants unless
they were coming to the United States pursuant to an invitation from a
public or nonprofit private educational or research institution or
agency to teach or conduct research, or both, at or for such
institution or agency. These physicians were not authorized to perform
direct patient care unless it was incidental to the teaching or
research. This restriction, however, was not contained in IMMACT,
thereby allowing graduates of foreign medical schools to perform direct
patient care in the United States.
Public Law 102-232 addressed the issue of foreign physicians coming
to the United States to perform services in the medical profession. The
legislation provided that these aliens could obtain H-1B classification
in either of two ways.
First (mirroring the pre-IMMACT statutory language), an alien may
be accorded H-1B classification if the alien is coming to the United
States pursuant to an invitation from a public or nonprofit private
educational or research institution or agency to teach or conduct
research, or both, at or for such institution or agency.
Second, an alien may be accorded H-1B classification if he or she
has passed the Federation Licensing Examination (FLEX) or an equivalent
examination as determined by the Secretary of Health and Human
Services. Eligibility under this criterion also requires a
demonstration that the alien has competency in oral and written English
or that the alien has graduated from a school of medicine accredited by
a body or bodies approved for that purpose by the Secretary of
Education.
In the preamble to the interim rule, it was stated that there was
no distinction between alien physicians educated in the United States
and those educated abroad and that both had to pass the Federation
Licensing Examination (FLEX) in order to be classified as an H-1B
nonimmigrant in order to perform direct patient care.
Three commenters stated that the FLEX requirement should not be
applicable to alien graduates of United States medical schools since,
over the previous decade, the Service has consistently permitted these
aliens to engage in direct patient care under the H-1B classification.
These commenters also noted that graduates of United States medical
schools are not normally required to take the FLEX examination as part
of their training and licensing requirements.
Subsequent to the publication of the interim rule, the Service
altered its position on this issue, reaffirming that the FLEX
requirement did not apply to aliens educated at United States medical
schools. This position now will be codified in the final rule. It
should be noted, however, that the FLEX requirement does apply to
aliens educated in foreign medical schools, including schools in
Canada. The final rule will be amended to reflect the Service's present
position.
Two commenters noted that aliens of national or international
renown in the field of medicine, pursuant to section 101(a)(41) of the
Act, are not considered graduates of a medical school and should be
exempt for the FLEX requirement. The Service agrees with this comment
and the final rule will be amended to indicate that aliens of national
or international renown in the field of medicine are exempt from the
FLEX requirement as well as the other requirements set forth in section
212(j)(2) of the Act. They are, however, required to meet the licensure
requirements for the state of intended employment.
Equivalency to the FLEX
Public Law 102-232 provides that alien physicians who wish to
perform patient care in the United States must, among other things,
pass the FLEX examination or an equivalent examination as determined by
the Secretary of Health and Human Services. By notice published on
September 16, 1992 at 57 FR 42755, the Secretary of Health and Human
Services designated Parts I, II, and III of the National Board of
Medical Examiners certifying examinations and the Steps 1, 2, and 3
examinations of the United States Medical Licensing Examinations
program as equivalent to the FLEX.
Six commenters suggested that the Licentiate of the Medical Council
of Canada (LMCC), the Canadian medical licensing procedure, or a State
license should also be determined to be equivalent to the FLEX. A
determination that the LMCC or a state license is equivalent to the
FLEX is outside the scope of the Service's authority.
Competency in the English Language
Public Law 102-232 also requires that graduates of medical schools
coming to the United States to perform services in the medical
professions must demonstrate competency in oral and written English or
be a graduate of a school of medicine accredited by a body or bodies
approved for that purpose by the Secretary of Education. The interim
rule contains the requirement that a petitioner may demonstrate English
competency by submitting evidence that the alien has passed the English
test given by the Educational Commission for Foreign Medical Graduates
(ECFMG). The interim regulation did not contain any additional tests or
mechanisms to establish competency in the English language but it was
stated in the preamble to the interim rule that the Service would
consider other suggestions to demonstrate competency.
Two commenters suggested that the Test of English as a Foreign
Language (TOEFL) should be recognized as an alternate test to establish
English competency. Since the results of the TOEFL are reported as a
raw score which must be interpreted by the entity reviewing the score,
and the administrators of the test have not established a passing grade
for the test, the Service cannot adopt this suggestion since it does
not have the expertise or resources to interpret this test.
Two commenters also suggested that the Service recognize that
graduates of medical schools located in an English-speaking country in
which the language of instruction is also English have competency in
the English language. Since the statutory language already addresses
the issue of language competency in relation to graduation from certain
universities, the adoption of this suggestion would be in conflict with
the statutory language.
Licensure
The interim rule requires that a petition for a physician coming to
the United States to perform services in the medical profession must be
accompanied by evidence that the physician has a license or
authorization required by the State of intended employment, if the
state requires such license or authorization. This language was adopted
to ensure that at the time the petition was filed the physician and met
the regulatory requirements relating to the practice of medicine in the
state of intended employment. The regulation also recognizes that, in
certain instances, a state may not require a physician to obtain an
actual medical license in order to perform the duties of a particular
position.
Two commenters suggested that the regulations of the state of
intended employment should dictate which type of license, if any,
should be required by the Service. This suggested regulatory change is
unnecessary since it is already provided for in the language of the
interim rule at Sec. 214.2(h)(4)(viii)(A)(1).
One commenter also noted that certain physicians employer by the
United States government, such as the Veterans Administration, are not
required to possess a license issued by the state of intended
employment hut merely require a license from any state. The final rule
has been amended to accommodate this situation.
One commenter suggested that an alien physician should not be
required to obtain a medical license if the alien is not coming to the
United States to perform patient care. As written, the interim rule
requires that licensure must be obtained only in those situations where
the alien beneficiary will be performing clinical care. An alien
physician coming to fill a position which does not normally require
licensure, e.g., medical research, would not be required to obtain a
license. Thus, this suggestion need not be adopted.
Approval and Validity of Petitions--Sec. 214.2(h)(9)(iii)(B)
The initial approval of an H-1B petition is currently limited to
three years. One commenter suggested that H-1B petitions should be
approved for the validity period of the supporting labor condition
application, not to exceed six years. The Service does not deem it
appropriate to consider extending the initial validity period of H-1B
petitions without first soliciting public comment on the issue. This
issue will be addressed in a future proposed rule.
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule does
not have a significant adverse economic impact on a substantial number
of small entities. This rule merely clarifies provisions of the MTINA
which establish certain new petitioning procedures for H-1B
nonimmigrants and new eligibility criteria for foreign physicians
seeking employment in the medical profession in this country, and
therefore has a de minimus economic impact on small entities. This rule
is not considered to be significant within section 3(f) of E.O. 12866,
nor does this rule have Federalism implications warranting the
preparation of a Federalism Assessment in accordance with E.O. 12612.
List of Subjects in 8 CFR Part 214
Administrative practice and procedures, Aliens, Employment,
Organization and functions (Government agencies).
Accordingly, the Interim Rule amending 8 CFR part 214 which was
published at 57 FR 12177-12179 on April 9, 1992, is adopted as a final
rule with the following changes:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1221, 1281,
1282; 8 CFR part 2.
2. Section 214.2 is amended by:
a. Revising paragraph (h)(1)(ii)(B)(1);
b. Revising paragraph (h)(4)(i)(B)(5);
c. Revising paragraph (h)(4)(viii)(A)(1);
d. Revising paragraph (h)(4)(viii)(B)(2); and
e. Adding paragraph (h)(4)(viii)(C) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(1) * * *
(ii) * * *
(B) * * *
(1) To perform services in a specialty occupation (except
registered nurses, agricultural workers, and aliens described in
section 101(a) (15) (O) and (P) of the Act) described in section
214(i)(1) of the Act, that meets the requirements of section 214(i)(2)
of the Act, and for whom the Secretary of Labor has determined and
certified to the Attorney General that the prospective employer has
filed a labor condition application under section 212(n)(1) of the Act;
* * * * *
(4) * * *
(i) * * *
(B) * * *
(5) If the Secretary of Labor notifies the Service that the
petitioning employer has failed to meet a condition of paragraph (B) of
section 212(n)(1) of the Act, has substantially failed to meet a
condition of paragraphs (C) or (D) of section 212(n)(1) of the Act, has
willfully failed to meet a condition of paragraph (A) of section
212(n)(1) of the Act, or has misrepresented any material fact in the
application, the Service shall not approve petitions filed with respect
to that employer under section 204 or 214(c) of the Act for a period of
at least one year from the date of receipt of such notice.
* * * * *
(viii) * * *
(A) * * *
(1) Has a license or other authorization required by the state of
intended employment to practice medicine, or is exempt by law
therefrom, if the physician will perform direct patient care and the
state requires the license or authorization, and
* * * * *
(B) * * *
(2) The alien has passed the Federation Licensing Examination (or
an equivalent examination as determined by the Secretary of Health and
Human Services) or is a graduate of a United States medical school; and
(i) Has competency in oral and written English which shall be
demonstrated by the passage of the English language proficiency test
given by the Educational Commission for Foreign Medical Graduates; or
(ii) Is a graduate of a school of medicine accredited by a body or
bodies approved for that purpose by the Secretary of Education.
(C) Exception for physicians of national or international renown. A
physician who is a graduate of a medical school in a foreign state and
who is of national or international renown in the field of medicine is
exempt from the requirements of paragraph (h)(4)(viii)(B) of this
section.
* * * * *
Sec. 214.2 [Amended]
3. In Sec. 214.2, paragraph (h)(2)(i)(B) is amended by removing the
last sentence.
Dated: January 6, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-569 Filed 1-10-94; 8:45 am]
BILLING CODE 4410-10-M
