[Federal Register Volume 62, Number 102 (Wednesday, May 28, 1997)]
[Rules and Regulations]
[Pages 28801-28804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13918]
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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
[[Page 28802]]
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 medical
graduate 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 be forwarded
to the Commissioner.
* * * * *
[FR Doc. 97-13918 Filed 5-27-97; 8:45 am]
BILLING CODE 8230-01-M
