[Federal Register Volume 59, Number 134 (Thursday, July 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17009]
[[Page Unknown]]
[Federal Register: July 14, 1994]
VOL. 59, NO. 134
Thursday, July 14, 1994
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS 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: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service (Service) regulations with regards to the treatment of certain
foreign medical graduates seeking nonimmigrant classification under the
H-1B classification as amended by the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991 (MTINA). This rule
will prohibit a foreign medical graduate from seeking H-1B
classification for the purpose of taking a medical residency in the
United States. It will also modify the eligibility standards for
foreign medical graduates and clarify for businesses and the general
public the requirements for medical graduates' classification and
admission.
DATES: Written comments must be submitted on or before September 12,
1994.
ADDRESSES: Please submit written comments, in triplicate, to the
Records Systems Division, 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 1654-94 on your correspondence.
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: Prior to the enactment of the Immigration
Act of 1990 (IMMACT), Public Law 101-649, with certain limited
exceptions, graduates of foreign medical schools seeking to come to the
United States to perform services in the medical professions could
obtain H-1B classification only if they were coming 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 an institution or agency. This requirement was deleted by Public
Law 101-649 which allowed for the admission of foreign medical
graduates under the H-1B nonimmigrant classification to perform any and
all services, including direct patient care, in the medical
professions.
The Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Public Law 102-232, December 12, 1991, established,
among other things, new criteria for the admission of foreign educated
physicians coming to the United States to perform services in the
medical professions. Public Law 102-232 amended section 212(j)(2) of
the Act to provide that these aliens could obtain H-1B classification
in either of two ways as follows:
First, (mirroring the pre-IMMACT language), an alien can 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.
Since the enactment of MTINA, a number of questions have been
raised concerning the legality of graduates of foreign medical schools
taking graduate medical education or training, also known as
residencies or internships, as H-1B nonimmigrant aliens. It has been
argued that a medical residency constitutes ``services in the medical
professions'' since a portion of the residency involves providing
direct patient care. It has also been argued that a medical residency
meets the definition of the term ``specialty occupation'' as contained
in section 214(i)(1) of the Act since the position requires the
theoretical and practical application of a body of highly specialized
knowledge, and a bachelor's or higher degree in the specific specialty
is a minimum requirement for entry into the occupation.
It is the opinion of the Service that Congress did not intend the
H-1B nonimmigrant classification to be utilized by graduates of foreign
medical schools coming to the United States to undertake medical
residencies or otherwise receive graduate medical education or
training. The Service believes that graduates of medical schools coming
to the United States to take medical residencies or otherwise receive
graduate medical education or training must seek classification as J-1
nonimmigrant aliens.
The rationale behind this opinion requires an examination of the
prior legislation in this area. Congress enacted the Health
Professionals Education Assistance Act of 1976 (HPEAA), Public Law 94-
484, in response to a number of problems with foreign medical graduates
in the United States. This legislation established the J-1
classification as the sole vehicle for graduates of medical schools to
obtain graduate medical education or training in the United States,
which clearly includes medical residencies. See sections 101(a)(15)(J)
and 212(j)(1) of the Act; see also pre-IMMACT section 101(a)(15)(H)(i)
of the Act. Section 212(j)(1) of the Act describes the various
requirements for foreign medical graduates coming to the United States
to receive graduate medical education or training. Although sections
303(a)(5) (A) and (B) of MTINA provided an avenue for foreign medical
graduates to enter the United States in H-1B status to perform services
in the medical professions by amending sections 101(a)(15)(H)(i)(b) and
212(j)(2) of the Act, MTINA did not alter the requirements for graduate
medical education or training contained in section 212(j)(1) of the
Act. It is our opinion that Congress would not place in juxtaposition
two such clearly different statutory provisions as section 212(j)(1)
and section 212(j)(2) of the Act if it intended the H-1B and J-1
classifications to overlap with respect to foreign medical graduates
seeking graduate medical education or training.
Nothing in the legislative history of either IMMACT of MTINA
indicates that Congress intended graduates of medical schools to obtain
graduate medical education or training under the H-1B classification.
In the absence of clear legislative language to the contrary, it is the
opinion of the Service that graduates of foreign medical schools must
utilize the J-1 classification to undertake medical residencies.
Therefore, those aliens who were previously accorded H-1B
classification in order to take a medical residency will be required to
seek a change of nonimmigrant classification to that of the J-1
nonimmigrant alien.
This rule proposes to amend paragraph (h)(2)(ii) by removing the
last two sentences of the paragraph. The change will allow a petitioner
to file a single petition for multiple beneficiaries even when the
beneficiaries on the petition will be applying for visas at more than
one consulate or port-of-entry. Under the prior regulation, the Service
required separate petitions for the beneficiaries where the aliens
desired to apply for nonimmigrant visas at different consulates or
where the alien beneficiaries were going to seek entry at more than one
port-of-entry. This proposed revision will save petitioners the time
and expense of filing multiple petitions for a group of aliens since,
under the proposed rule, only a single petition will be required. The
Service will, of course, notify each consular post or port-of-entry
listed on the petition of the approval of the petition. The other
requirements of the paragraph, i.e., 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, have not been changed.
This rule also proposes to amend paragraph (h)(13)(iv), which
discusses the limitations on admission for H-2B and H-3 nonimmigrant
aliens, by adding a sentence differentiating between an H-3 alien
trainee and an H-3 participant in a ``special education exchange
visitor program.'' As contained in the previous regulation, any H-3
alien who had spent 18 months in the United States as an H or L
nonimmigrant alien could not seek extension, change status, or be
readmitted to the United States unless the alien had spent 6 months
outside the United States. This paragraph is inconsistent with
paragraph (h)(9)(iii)(D)(1) which provides that an H-3 petition for an
alien trainee shall be valid for a period of two years.
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 clarifies certain provisions of
the MTINA relating to physicians desiring to take medical residencies
in this country and modifies certain filing procedures for petitions to
reduce filing fees.
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 addressed 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 proposed to be 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, 1221, 1281,
1282; 8 CFR part 2.
2. Section 214.2 is amended by:
a. Revising paragraph (h)(2)(ii);
b. Adding paragraph (h)(4)(viii)(D); and by
c. Revising paragraph (h)(13)(iv), to read as follows:
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.
* * * * *
(4) * * *
(viii) * * *
(D) Aliens coming to the United States to receive graduate medical
education or training. Aliens coming to the United States to receive
graduate medical education or training are not eligible for H-1B
classification. Such aliens must seek classification pursuant to
section 101(a)(15)(J) of the Act.
* * * * *
(13) * * *
(iv) H-2B and H-3 limitation on admission. An H-2B alien who has
spent three 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 six months.
* * * * *
Dated: June 9, 1994.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 94-17009 Filed 7-13-94; 8:45 am]
BILLING CODE 4410-10-M
