[Federal Register Volume 60, Number 232 (Monday, December 4, 1995)]
[Rules and Regulations]
[Pages 62021-62023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29417]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 1654-94]
RIN 1115-AD66
Temporary Alien Workers Seeking H Classification for the Purpose
of Obtaining Graduate Medical Education or Training
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: After consideration of comments filed and the relevant issues,
the Immigration and Naturalization Service (Service) has decided not to
implement one of the changes previously proposed, to preclude the use
of the H-1B non-immigrant classification for graduates of foreign
medical schools pursuing medical residencies in the United States.
However, this rule amends the Service's regulations in other respects
by modifying the filing procedures for certain H nonimmigrant petitions
involving multiple beneficiaries. The rule allows a petitioner to file
a single petition even when the beneficiaries listed on the petition
will be applying for nonimmigrant visas at different consulates or for
entry into the United States at different Ports-of-Entry, provided that
the aliens will be performing the same service or receiving the same
training, for the same period of time, and in the same location. This
rule further amends the Service's regulations by clearly
differentiating between an H-3 alien trainee and an H-3 special
education trainee with respect to the time limitations on admission for
these types of classifications. This rule will ease the burden on the
public when filing H petitions involving multiple beneficiaries and
will correct a regulatory inconsistency regarding the limitations on
stay for H-3 nonimmigrant aliens.
EFFECTIVE DATE: December 4, 1995.
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: On July 14, 1994, at 59 FR 35866-35867, the
Immigration and Naturalization Service (Service) published a proposed
rule in the Federal Register addressing three issues within the H
nonimmigrant classification. The principal proposal related to the
treatment of certain foreign medical graduates seeking to be classified
under the H-1B nonimmigrant classification as amended by the
Miscellaneous and Technical Immigration and Naturalization Amendments
of 1991 (MTINA). The Service proposed that graduates of foreign medical
schools should be prohibited from seeking H-1B classification for the
purpose of pursuing a medical residency in the United States and that,
instead, these aliens should be required to avail themselves of the J-1
nonimmigrant classification. The Service also proposed that those
aliens already admitted to the United States as H-1B nonimmigrant
aliens for the purpose of pursuing a medical residency be required to
seek a change of nonimmigrant status to that of a J-1 nonimmigrant
alien to complete the residency. After reviewing the comments received
from the public, the Service has decided not to promulgate this portion
of the proposed rule.
The comment period for the proposed rule ended on September 12,
1994. In response to the proposed rule, the Service received a total of
325 comments. The following is a discussion of the comments and the
Service's response.
Multiple Beneficiaries and Time Limitations on Certain H-3 Trainees
Of the 325 comments received, only one addressed the Service's
proposal relating to multiple beneficiaries on H petitions and its
proposal regarding time limitations for H-3 alien trainees. The
commenter opined that these two proposals comported with Congressional
intent and recommended that they be adopted. The Service concurs and
accordingly will incorporate those two proposals in the final rule.
Medical Residencies Under the H-1B Nonimmigrant Classification
The Service received 325 comments addressing the issue of medical
residencies under the H-1B nonimmigrant classification. Only 11
commenters agreed with the Service's proposal that graduates of foreign
medical schools be prohibited from using the H-1B nonimmigrant
classification for the purpose of pursuing a medical residency. The
remainder of the commenters expressed the opinion that Congress
intended that graduates of foreign medical schools be permitted to
pursue medical residencies under the H-1B nonimmigrant classification.
In addition, 235 of the commenters stated that it was not fair or
appropriate for the Service to require that an alien already admitted
into the United States as an H-1B nonimmigrant alien in order to pursue
a medical residency be required to change his or her nonimmigrant
status to a J-1 nonimmigrant alien in order to complete the residency.
In proposing this rule, the Service expressed its opinion that
Congress did not intend the H-1B nonimmigrant classification to be used
by graduates of foreign medical schools coming to the United States to
pursue medical residencies or otherwise receive graduate medical
education or training, and that, therefore, these aliens should
[[Page 62022]]
seek classification as J-1 nonimmigrant aliens. This opinion was based
on the Service's examination of the relevant legislation, including the
Health Professionals Education Assistance Act of 1976 (HPEAA), Pub. L.
94-484 and MTINA. The Service took note that the HPEAA established the
J-1 classification as the sole vehicle, with certain limited
exceptions, for graduates of medical schools to obtain graduate medical
education or training in the United States, including medical
residencies. See sections 101(a)(15)(J) and 212(j)(1) of the Act; see
also pre-IMMACT (Immigration and Nationality Act of 1990) section
101(a)(15)(H)(i) of the Act. The Service further noted that, by
amending sections 101(a)(15)(H)(i)(b) and 212(j)(2) of the Act, MTINA
provided an avenue for foreign medical graduates to enter the United
States in H-1B status to perform services in the medical professions.
The Service opined, however, that MTINA did not alter the HPEAA's
requirement, as set forth in section 212(j)(1) of the Act, that a
graduate of a foreign medical school seeking education or training do
so only as a J-1 nonimmigrant alien. In support of this position, the
Service expressed its belief that Congress would not have placed in
juxtaposition two such clearly different statutory provisions as
section 212(j)(1) and section 212(j)(2) of the Act had it intended for
the H-1B and J-1 classifications to overlap with respect to foreign
medical graduates seeking graduate medical education or training.
After a careful review of the comments received in response to the
proposed rule and a further review of the relevant legislative history,
the Service has opted to withdraw this portion of the proposed rule.
The Service is now of the opinion that the statute can be reasonably
interpreted either to provide that as proposed by the Service, the H-1B
classification is not available for graduates of foreign medical
schools to take medical residencies or, as is the current practice, the
H-1B classification is available for graduates of foreign medical
schools for medical residencies.
The Service has elected to adopt the second interpretation and
continue its current practice of allowing graduates of foreign medical
schools to take residencies under the H-1B classification. In so doing,
the Service notes first that nothing in the statute or the relevant
legislative history specifically precludes H-1B classification for
aliens seeking graduate medical training, and second, under the
language of section 214(i) of the Act, a graduate medical education
program, such as a residency, could in some cases meet the definition
of ``specialty occupation'' for H-1B purposes. See also 8 CFR
214.2(h)(4)(i). In addition, we note, as did some commenters, that a
medical residency can reasonably be considered to be either a training
program or a specialty occupation. This position is consistent with
that taken by the Service in Matter of Bronx Municipal Hospital Center,
12 I&N Dec. 768 (1968), where the Regional Commissioner held that a
medical residency is primarily clinical in nature and, therefore, does
not qualify as an H-3 training program.
In deciding to withdraw this portion of the rule, the Service also
found persuasive the comments submitted by a number of large urban
medical facilities indicating that they would be unable to recruit
qualified individuals to pursue residencies under the J-1 program.
These commenters indicated that they have relied heavily on the use of
the H-1B program to staff their residency programs and that the
requirement that these aliens use the J-1 program would result in a
curtailment of medical services which could otherwise be provided to
the surrounding community.
Finally, the Service was also impressed by the sheer number of
comments received in opposition to the rule. While three major
organizations involved in the medical health field supported the
Service's proposed rule, over 300 other commenters expressed the
opinion that graduates of foreign medical schools should be permitted
to pursue medical residencies as H-1B nonimmigrant aliens. The three
commenters based their opinion on the belief that medical residencies
should be characterized as training programs as opposed to temporary
employment as a specialty occupation. However, as indicated above, the
Service is of the opinion that a medical residency can be considered
either a training program or a specialty occupation. See Bronx
Municipal Hospital Center, supra.
As a result of the Service's withdrawal of this portion of the
proposed rule, graduates of foreign medical schools will continue to be
permitted to pursue a medical residency under the H-1B classification
provided, of course, that all regulatory and statutory requirements for
the classification are met. In addition, graduates of foreign medical
schools will also continue to be eligible to pursue medical residencies
under the J-1 nonimmigrant classification.
Prospective petitioners for H-1B nonimmigrant aliens seeking to
pursue medical residencies should be aware of the obligations which are
assumed when an H-1B petition is filed. These obligations include both
the requirement that the prospective employer pay the alien's return
transportation if the alien is dismissed before the expiration of the
validity of the petition and compliance with section 212(n) of the Act.
This rule will have no adverse effect on family well-being.
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. This regulation merely modifies certain filing
procedures for H petitions.
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.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, 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)(2)(ii); and by
b. Revising paragraph (h)(13)(iv), to read as follows:
[[Page 62023]]
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(ii) Multiple beneficiaries. More than one beneficiary may be
included in an H-2A, H-2B, or H-3 petition if the beneficiaries will be
performing the same service, or receiving the same training, for the
same period of time, and in the same location.
* * * * *
(13) * * *
(iv) H-2B and H-3 limitation on admission. An H-2B alien who has
spent 3 years in the United States under section 101(a)(15)(H) and/or
(L) of the Act; an H-3 alien participant in a special education program
who has spent 18 months in the United States under section
101(a)(15)(H) and/or (L) of the Act; and an H-3 alien trainee who has
spent 24 months in the United States under section 101(a)(15)(H) and/or
(L) of the Act may not seek extension, change status, or be readmitted
to the United States under section 101(a)(15)(H) and/or (L) of the Act
unless the alien has resided and been physically present outside the
United States for the immediate prior 6 months.
* * * * *
Dated: November 1, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-29417 Filed 12-1-95; 8:45 am]
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