[Federal Register Volume 59, Number 194 (Friday, October 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24882]
[[Page Unknown]]
[Federal Register: October 7, 1994]
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DEPARTMENT OF JUSTICE
8 CFR Part 214
[INS 1663-94]
RIN 1115-AD74
Admission of Certain Nurses Seeking Nonimmigrant Classification
Under the H-1A Category
agency: Immigration and Naturalization Service, Justice.
action: Interim rule with request for comments.
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summary: This rule amends the Immigration and Naturalization Service
(Service) regulations with regards to the admission of certain nurses
seeking nonimmigrant classification under the H-1A classification. This
rule is necessary because of a change in the method that the National
Council of State Boards of Nursing employs in administering the
permanent state licensure examination (NCLEX). In response to this
change in testing procedures, this rule provides that nurses entering
the United States on the basis of a temporary license issued by the
state of intended employment must pass the NCLEX within six months
after the date of their initial admission to the United States. The
rule also clarifies for businesses and the general public the
requirements for the admission of foreign nurses into the United
States.
dates: This interim rule is effective October 7, 1994.
Written comments must be submitted on or before December 6, 1994.
addresses: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., room 5307, Washington, DC
20536. To ensure proper handling please reference the INS number 1663-
94 on your correspondence.
for further information contact: John W. Brown, Adjudications Officer,
Adjudications Division, Immigration and Naturalization Service, 425 I
Street NW., room 3214, Washington, DC 20536, telephone (202) 514-3240.
supplementary information: Section 212(m)(1) of the Immigration and
Nationality Act (Act) describes the qualifications necessary for an
alien to obtain classification as an H-1A registered nurse. The Act
requires, among other things, that the nurse must have either: (1) a
full and unrestricted license to practice professional nursing in the
state of intended employment or (2) have passed an approximate
examination (under current 8 CFR 214.2 (h)(3)(iii), the examination
given by the Commission on Graduates of Foreign Nursing Schools
(CGFNS)) and have a temporary license for the state of intended
employment. Under the current regulations, a foreign nurse who is
accorded H-1A status based on a temporary license after passage of the
CGFNS is required to sit and pass the first available permanent state
licensing examination.
Prior to April 1, 1994, the permanent state licensing examination
was given twice a year, in February and July. Under current 8 CFR
214.2(h)(3)(v)(B), a nurse admitted in H-1 classification based on
passage of the CGFNS examination and temporary licensure who fails the
permanent state licensing examination or fails to sit for the first
available permanent licensing examination is no longer eligible for H-
1A status. On April 1, 1994, however, the National Council of State
Boards of Nursing altered its testing procedures and now offers the
permanent state licensing examination on a walk-in basis, six days a
week. Thus, the current regulatory requirement that the alien sit and
pass the first available state nursing examination is no longer
appropriate since the test is now available to the nurse immediately
upon entry into the United States.
In order to provide a nurse with sufficient time to acclimate
himself or herself to the country and to prepare for the examination,
the Service has determined that a nurse who has been accorded H-1A
status on the basis of a temporary license shall be granted a period of
six months after the date of entry to sit and pass the permanent state
licensing examination. After passage of the permanent state licensing
examination, the alien's employer must file an application to extend
the stay of the alien. At the time of the application for extension of
stay, the alien's employer must demonstrate that the alien has remained
in H-1A status continuously from the time of his or her admission by
submitting evidence reflecting that the alien has been employed
continuously as a registered professional nurse since entry. An alien
who does not pass the permanent state licensing examination with six
months of his or her admission or fails to maintain a valid H-1A status
is not eligible for a further extension of stay.
Despite these changes, petitions for H-1A aliens entering the
United States based on a temporary license will continue to be approved
for a period not to exceed one year. Further, an H-1A alien shall be
admitted to the United States for the validity of the supporting
petition.
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comment, is based upon the
``good cause'' exception found at 5 U.S.C. 553(d)(3). Because of
changes in the National Council of State Boards of Nursing testing
procedures, immediate implementation of the interim rule is necessary
to ensure foreign nurses admitted to the U.S. in H-1A status based on
possession of temporary licenses an adequate and realistic period of
time to prepare for the permanent state licensing examination and
therefore, continued eligibility for H-1A classification.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and by approving it certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. The regulation merely modifies certain filing
procedures for petitions for foreign nurses to make them consistent
with industry practices.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation proposed herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of Government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has assessed this rule in light of the criteria in
Executive Order 12606 and has determined that it will have no effect on
family well-being.
List of Subjects in 8 CFR Part 214
Administrative practice and procedures, Aliens, Employment,
Organization and functions (Government agencies).
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
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, 1187, 1221,
1281, 1282; 8 CFR part 2.
2. Section 214.2 is amended by:
a. Revising paragraph (h)(3)(iii)(C);
b. Revising paragraph (h)(3)(v)(B);
c. Revising paragraph (h)(3)(v)(C); and by
d. Revising paragraph (h)(15)(ii)(A); to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * * *
(h) * * *
(3) * * *
(iii) * * *
(C) Is fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse
to be employed) governing the place of intended employment to practice
as a registered nurse immediately upon admission to the United States,
and is authorized under such laws to be employed by the employer. For
purposes of this paragraph, the temporary or interim licensing may be
obtained immediately after the alien enters the United States.
* * * * *
(v) * * *
(B) After admission to the United States, an H-1A nurse who does
not hold a permanent state license must take and pass the examination
for state licensure as a registered nurse within six months from the
date of his or her initial admission to the United States. After this
six-month period of time, the nurse must be granted permanent state
licensure in order to maintain his or her eligibility for H-1A
classification in the state of employment or any other state or
territory of the United States.
(C) A nurse shall automatically lose his or her eligibility for H-
1A classification if he or she is no longer performing the duties of a
registered professional nurse. Such a nurse is not authorized to remain
in employment unless he or she otherwise receives authorization from
the Service.
* * * * *
(15) * * *
(ii) Extension periods--(A) H-1A extension of stay. An extension of
stay may be authorized for a period of up to two years for a
beneficiary of an H-1A petition. The alien's total period of stay may
not exceed five years, except in extraordinary circumstances. An H-1A
alien who has been in the United States for a period of five years in
such status may receive a one-year extension of stay if it is
established by the petitioner that extraordinary circumstances exist
which warrant such an extension. Extraordinary circumstances shall
exist when the director finds that termination of the alien's services
will impose extreme hardship on the petitioner's business operation or
that the alien's services are required in the national welfare, safety,
or security interests of the United States. Each request for an
extension of stay for the beneficiary of an H-1A petition must be
accompanied by a current copy of the Department of Labor's notice of
acceptance of the petitioner's attestation on Form ETA 9029. A request
for an extension of stay filed in behalf of an alien who initially
entered the United States on the basis of a temporary license must be
accompanied by evidence that the alien has remained in a valid H-1A
status since his or her initial entry into the United States.
* * * * *
Dated: September 16, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-24882 Filed 10-6-94; 8:45 am]
BILLING CODE 4410-10-M
