[Federal Register Volume 61, Number 173 (Thursday, September 5, 1996)]
[Proposed Rules]
[Pages 46745-46748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22586]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Proposed rule with request for comments.
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SUMMARY: This proposed rule would amend existing regulations governing
the Agency's internal Exchange Visitor Waiver Review Board and 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 in the regulations providing for the Agency's
Waiver Review Board are proposed to reconcile them with Agency policy
and to control the number of cases mandatorily referred to the Board.
The Agency expects that the number of cases afforded Board review will
be reduced. Changes to the regulations governing waiver requests by
interested United States Government agencies are believed necessary to
provide for uniform administration of such requests. The Agency
anticipates that the proposed changes will increase administrative
efficiency and speed of response and also ensure that multiple
interested U.S. Government agency (or state) waiver requests on behalf
of an individual exchange visitor are not processed.
[[Page 46746]]
DATES: Comments regarding this proposed rule will be accepted until
November 4, 1996.
ADDRESSES: Comments may be mailed to Rulemaking Clerk, Room 700, Office
of General Counsel, United States Information Agency, 301 4th Street,
SW., Washington, DC 20547.
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 come to this country to 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 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. 1182(e) (section 212(e) of the Immigration and Nationality Act),
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 nationals entering the United States as Exchange Visitor
Program participants are subject to the return home requirement if
they: (i) Received U.S. or foreign government financing for any part of
their studies or training in the U.S.; (ii) studied or trained in a
field deemed of 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 this
requirement 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 visitor's
home government; (ii) exceptional hardship to the visitor's U.S.
citizen (or legal permanent resident) 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.
Interested U.S. Government Agency Waiver Requests
The Agency's Exchange Visitor Program Services, Waiver Review
Branch, is responsible for processing waiver applications. Last year,
this branch received approximately 6,000 waiver applications,
approximately 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 four years, the number of
interested government agency requests submitted to the Agency has
increased approximately five-fold to some 1,700 annually for calendar
year 1995.
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. At
present, the Department of Veterans Affairs, the Department of Housing
and Urban Development, 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 return
for agency request, the foreign medical graduate must agree to practice
patient care in a geographic area designated by the Secretary of Health
and Human Services as either a Primary Care Health Professional
Shortage Area (``HPSA''), or Medically Underserved Area (``MUA''), or
psychiatric care in a Mental Health Professional Shortage Area or to
work at a facility operated by the Department of Veterans Affairs.
For years, the Department of Veterans Affairs and the Appalachian
Regional Commission were the only agencies making requests for waivers
on behalf of these foreign medical graduates, but in the past three
years the Department of Agriculture and the Department of Housing and
Urban Development also have begun to act on their behalf. With the
entry into the waiver process of these two additional agencies,
inconsistency in the administration of waiver requests among the
different 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 or are duplicative
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. Accordingly, the Agency proposes to amend Sec. 514.44(c) to
both provide uniformity to this process and prevent the filing of
concurrent waiver requests.
Waiver Review Board
An increase in the number of interested government agency and ``no
objection'' waiver requests has also placed an increased burden on the
Agency's internal Waiver Review Board. Many of these waiver requests
involve exchange visitors who have received government funding for part
or all of their exchange activities. Current regulations require that
such cases be referred to the Waiver Review Board if the government
sponsor that has provided funding objects to the exchange visitor's
receiving a waiver. Other circumstances that require automatic referral
to the Waiver Review Board are set forth in 22 CFR 514.44(g).
Given the increased number of waiver requests and the questionable
value to program goals added by the Waiver Review Board process in
certain types of mandatorily-referred cases, the Agency has identified
a need to streamline the waiver review process and to reduce
significantly the number of waiver applications routinely or
mandatorily referred to the Waiver Review Board for decision. Further,
organizational and staffing changes within the Agency's Exchange
Visitor Program Services unit have resulted in the abolishment of the
position of Director, Exchange Visitor Program Services and an
alteration of the duties of the Waiver Branch Chief. The loss of the
Director position has, in turn, rendered certain procedures set forth
in Sec. 514.44 (g) and (h) no longer germane. Accordingly, the Agency
proposes new provisions to reflect the administrative changes in the
Waiver Review Branch and to adjust the existing requirement of
automatic referral to the Board of certain cases.
Comment
The Agency invites comments regarding this proposed rule
notwithstanding the fact that it is under no legal requirement to do
so. The oversight and administration of the Exchange Visitor Program
are deemed to be foreign affairs functions of the United States
Government. The Administrative
[[Page 46747]]
Procedures Act, 5 U.S.C. 553(a)(1), (1989) specifically exempts foreign
affairs functions from the rulemaking requirements of the Act.
The Agency extends a 60-day public comment period. In response to
suggestions and requests from immigration practioners, the Agency is
also requesting public comment on certain matters related to this
proposed rule but not set forth therein. Specifically, the Agency
welcomes comment regarding the need for and merits of non-compete and
punitive damages clauses that are set forth in contracts between local
health facilities and foreign medical graduates receiving a waiver in
order to work at such facility. These contractual clauses impose
limitations upon the geographical area in which waiver recipients may
practice medicine at the end of the employment contract and also
penalize waiver recipients who fail to complete their contractual
obligations by providing the health care facility the opportunity to
pursue significant monetary damages against the waiver recipient. It is
the Agency's belief that some, but not all, of these contracts contain
such provisions and the Agency is accordingly interested in learning
whether such provisions should be uniformly mandated. Further, based
upon suggestions from the private bar, the Agency is interested in
comment that discusses the need for and merits of an internal audit
procedure for use by federal agencies or departments making interested
government agency waiver requests. The Agency believes that such
internal audit procedures could safeguard the integrity of the waiver
request process.
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 August 29, 1996.
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 removing paragraph (h) and revising
paragraphs (c) and (g) 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 patient care in a designated Primary Medical Car 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 yeas and that the foreign medical graduate is to be employed
by the facility for the purpose of providing primary medical care in a
designated Primary Medical Care Health Professional Shortage Area or
designated Medically Underserved Area (``MUA'') or psychiatric care in
a designated Mental Health Professional Shortage Area.
(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. The statement shall also list the Health
Professional Shortage Area or Medically Underserved Area identifier
number assigned to the area by the Secretary of Health and Human
Services.
(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: (1) I have sought or obtained the cooperation of
__________________ (enter name of United States Government agency
which will submit/is submitting an IGA request on behalf of the
Exchange Visitor to obtain a waiver of the 2-year home residence
requirement); and (2) I do not now have pending nor will I submit
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, to act on my behalf in any matter
relating to a waiver of my two-year home-country physician presence
requirement.
(iv) Evidence that unsuccessful efforts have been made to recruit
an American physical for the position to be filled by the exchange
visitor.
(5) Except as set forth in Sec. 514.44(g)(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.
* * * * *
(g) The Exchange Visitor Waiver Review Board. (1) The Exchange
Visitor Waiver Review Board (``Board'') shall consist of the following
Agency officers:
(i) The Associate Director of the Bureau of Educational and
Cultural Affairs, or his or her designee;
(ii) The Director of the geographic area office responsible for the
geographical area of the waiver applicant, or his or her designee;
(iii) The Director of the Office of Congressional and
Intergovernmental Affairs, or his or her designee;
(iv) The Director of the Office of Academic Exchange, or his or her
designee; and
(v) The Director of the Office of Research, or his or her designee.
[[Page 46748]]
(2) A person who has had substantial prior involvement in a
particular case referred to the Board may not be appointed to serve on
the Board for that particular case unless the General Counsel
determines that the individual's inclusion on the Board is otherwise
necessary or practicably unavoidable.
(3) The Associate Director of the Bureau of Educational and
Cultural Affairs, or his or her designee, shall serve as Board
Chairman. No designee under this paragraph (g)(3) shall serve for more
than 2 years.
(4) Cases will be referred to the Board at the discretion of the
Branch Chief, Waiver Review Branch, of the Agency's office of Exchange
Visitor Program Services. The Waiver Review Branch shall prepare a
summary of the particular case referred and forward it along with a
copy of the relevant file to the Board Chairman. The Chief, Waiver
Review Branch, or his or her designee, may, at the Chairman's
discretion, appear and present facts related to the case but shall not
participate in Board deliberations.
(5) The Chairman of the Board shall be responsible for convening
the Board and distributing all necessary information to its members.
Upon being convened, the Board shall review the case file and weigj the
request against the program, policy, and foreign relations aspects of
the case.
(6) At the conclusion of its review of the case, the Board shall
make a written recommendation either to grant or to deny the waiver
application. The written recommendation of a majority of the Board
shall constitute the recommendation of the Board. Such recommendation
shall be promptly transmitted by the Chairman to the Branch Chief,
Waiver Review Branch.
(7) The recommendation of the Board in any case reviewed by it
shall constitute the recommendation of the Agency and such
recommendation shall be forwarded to the Commissioner by the Branch
Chief, Waiver Review Branch.
[FR Doc. 96-22586 Filed 9-4-96; 8:45 am]
BILLING CODE 8230-01-M
