[Federal Register Volume 65, Number 173 (Wednesday, September 6, 2000)]
[Rules and Regulations]
[Pages 53889-53896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22832]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 65, No. 173 / Wednesday, September 6, 2000 /
Rules and Regulations
[[Page 53889]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 204 and 245
[INS No. 2048-00]
RIN 1115-AF75
National Interest Waivers for Second Preference Employment-Based
Immigrant Physicians Serving in Medically Underserved Areas or at
Department of Veterans Affairs Facilities
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (Service) regulations by establishing the procedure under which
a physician who is willing to practice full-time in an area designated
by the Secretary of Health and Human Services as having a shortage of
health care professionals or in a facility operated by the Department
of Veterans Affairs may obtain a waiver of the job offer requirement
that applies to alien beneficiaries of second preference employment-
based immigrant visa petitions. This rule explains the requirements the
alien physician must meet in order to obtain approval of an immigrant
visa petition and, once the physician has completed the requirements,
to obtain adjustment to lawful permanent residence status. This
regulatory change is necessary to help reduce the shortage of
physicians in designated underserved areas of the United States.
Effective date: This interim rule is effective October 6, 2000.
Comment date: Written comments must be submitted on or before
November 6, 2000.
ADDRESSES: Written comments must be submitted, 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 2048-
00 on your correspondence. Comments are available for public inspection
at this location by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Craig Howie, Headquarters
Adjudications Officer, Business and Trade Services, Adjudications
Division, Immigration and Naturalization Service, 425 I Street, NW.,
Room 3040, Washington, DC 20536, telephone (202) 353-8177.
SUPPLEMENTARY INFORMATION:
Background
What Are National Interest Waivers?
Section 203 of the Immigration and Nationality Act (the Act)
provides for the allocation of preference visas for both family and
employment-based immigrants. The second preference employment-based
category (EB-2) allows for the immigration of aliens who are members of
the professions holding advanced degrees or aliens of exceptional
ability. See section 203(b)(2) of the Act. The Act at section
203(b)(2)(B) also allows the Attorney General to waive the job offer
requirement placed on EB-2 immigrants when the Attorney General
determines that services the alien intends to provide will be in the
national interest. Such waivers are commonly called national interest
waivers. These waivers relieve the petitioner from fulfilling the labor
certification requirement, as administered by the Department of Labor.
Legislative Authority
How Has Congress Amended Section 203 of the Act?
On November 12, 1999, the President approved enactment of the
Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95
(Nursing Relief Act). Section 5 of the Nursing Relief Act amends
section 203(b)(2) of the Act by adding a new subparagraph (B)(ii). The
amendment establishes special rules for requests for a national
interest waiver that are filed by or on behalf of physicians who are
willing to work in an area or areas of the United States designated by
the Secretary of Health and Human Services (HHS) as having a shortage
of health care professionals or at facilities operated by the
Department of Veterans Affairs (VA). The amendment is applicable only
to practicing licensed physicians (namely doctors of medicine and
doctors of osteopathy), not other health care professionals such as
nurses, physical therapists, or doctor's assistants.
Note that the Consolidated Appropriations Act, 2000, Public Law
106-113, 113 Stat. 1501, enacted on November 29, 1999, also included an
essentially identical amendment to section 203(b)(2)(B) of the Act.
(See Section 1000(a)(1) of Division B of Pub. L. 106-113, 113 Stat. at
1535, which enacts the Department of Justice Appropriations Act, 2000.)
To make the benefit of new section 203(b)(2)(B)(ii) as widely available
as possible, and to avoid confusion for any physician on whose behalf a
petition was filed between November 12 and November 29, 1999, the
interim rule fixes November 12, 1999, as the proper effective date.
Under the Act as amended, the Attorney General is directed to grant
a national interest waiver of the job offer requirement to any alien
physician who agrees to work full-time in a clinical practice for the
period fixed by statute. For most cases, the required period of service
is 5 years; 3 years' service is sufficient in those cases involving
immigrant visa petitions filed before November 1, 1998. The alien
physician must provide the service either in an area or areas
designated by the HHS as having a shortage of health care professionals
(namely in HHS designated Medically Underserved Areas, Primary Medical
Health Professional Shortage Areas, or Mental Health Professional
Shortage Areas), or at a VA facility or facilities. In either case, the
alien physician must also obtain a determination from HHS, VA, another
federal agency that has knowledge of the physician's qualifications, or
a State department of public health that the physician's work in such
an area, areas, or facility is in the public interest.
[[Page 53890]]
Why Is the Service Issuing This Regulation?
This interim rule is necessary to codify the provisions of Public
Law 106-95 and to put into place procedures for both the public and
Service officers to follow.
Are the New Statutory Provisions Available to Any Physician?
Section 203(b)(2)(B)(ii) of the Act states that any physician may
petition for a national interest waiver. While the statutory language
says ``any physician,'' the Service notes that HHS currently limits
physicians in designated shortage areas to the practice of family or
general medicine, pediatrics, general internal medicine, obstetrics/
gynecology, and psychiatry. Unless HHS establishes shortage areas for
other fields of medicine, only these fields of medicine are covered by
this rule.
The Service anticipates that the majority of physicians petitioning
under the new provisions will be those that are already admitted to the
United States in a valid nonimmigrant status. The Service expects that
many J-1 nonimmigrant medical doctors in training, as well as
physicians practicing medicine in H-1B nonimmigrant status, will apply
for this waiver since many J-1 and H-1B physicians practice or are in
training to practice family or general medicine. It is unlikely that
many physicians living abroad will have completed the necessary
licensing and certification procedures in order to qualify for this
particular EB-2 immigrant visa. Any physician living abroad who has met
the requirements necessary to practice in the United States, however,
may seek a national interest waiver of the job offer requirement, if
the physician can meet the requirements of section 203(b)(2)(B)(ii).
How Much Time Will the Service Give an Alien Physician To Complete His
or Her Aggregate Service?
The interim rule establishes that physicians petitioning for EB-2
immigrant status with a request for a national interest waiver must
fulfill the aggregate 5 years of full-time service within a 6-year
period following approval of the petition and waiver (within 4 years of
approval of the petition and waiver for cases filed before November 1,
1998). The Service is of the opinion that granting physicians one
additional year to accumulate the needed aggregate time is more than
reasonable.
The Service realizes that situations will arise that cause some
physicians to have interruptions in the respective medical practice,
such as job loss through no fault of their own and the ensuing search
for new employment in an underserved area, pregnancy, or providing care
to ill parents, children, or other family members. Nevertheless, the
Service does not consider it appropriate to allow physicians to remain
in the United States indefinitely without satisfying the service
requirement. The Service will, therefore, deny the application for
adjustment of status and revoke approval of the visa petition and
national interest waiver in any case in which the alien physician fails
to submit, within the time fixed by the interim rule, the required
documentary evidence establishing the physician's compliance with the
service requirement.
Does Time Spent by the Alien Physician in J-1 Status Count Toward the
Mandatory Service Time Period?
No. The Act plainly states that any time spent by the alien
physician in J-1 nonimmigrant status does not count toward either the 5
or 3-year medical service requirement.
What Evidence Will Physicians Need To Submit?
This interim rule establishes what documentary evidence is
necessary for physicians desiring to take advantage of the statutory
amendment. However, most of this documentation is similar to what a
physician would be required to submit if he or she were not applying
for the national interest waiver. In a national interest waiver case,
however, the evidence must establish that the physician will work in an
HHS designated shortage area or a VA facility and that the petition is
supported by the needed attestations from either HHS, VA, another
Federal agency that has knowledge of the physician's qualifications, or
a State public health department.
Can Any Federal Agency Issue a Needed Attestation?
This interim rule provides that, in order to provide an
attestation, the Federal agency must possess knowledge of the alien
physician's skills and have experience in making similar type
attestations. In addition to HHS and the VA, this might include, for
example, attestations from the medical director of a United States
military hospital, The Peace Corps, or the Department of State.
Are Similar Limits Placed on State Departments of Health?
Yes, the interim rule establishes that the needed attestation must
come from a State department of public health (or the equivalent),
including United States territories and the District of Columbia. While
the Act, as amended, states that ``a department of public health in any
State'' may provide the needed attestation, the Service has concerns
over how a completely decentralized system of providing attestations
can effectively address the problem of physician shortages. In
particular, the Service sees problems with an attestation procedure
operating without a central authority in each State having oversight of
the process and oversight of where the physicians are actually
practicing. Therefore, the interim rule places the authority with each
State department of public health to make the necessary attestations.
Nothing in this interim rule prevents local departments of public
health from urging the central State health department to issue
attestations concerning the merits of a particular alien physician and
that physician's desire to practice medicine in an HHS-designated
underserved area. This policy of placing the authority to render a
needed attestation with the State public health department is
consistent with Service regulations that address waivers of the 2-year
return home requirement for J-1 nonimmigrant physicians. See 8 CFR
212.7(c)(9)(i)(D).
The Service is also restricting such attestations to physicians
intending to practice clinical medicine within the agency's territorial
jurisdiction. For example, the Service will not accept an attestation
from the State of Maryland Public Health Department regarding a
physician proposing to practice medicine exclusively in Pennsylvania.
Is There Any Special Provision for Long-Pending Petitions?
As noted, most alien physicians must work in the area designated by
the Secretary of HHS as having a shortage of health care professionals
(or at the VA facility) for at least 5 years before the alien physician
may obtain permanent residence status. A special rule applies if the
alien physician is the beneficiary of an immigrant visa petition filed
before November 1, 1998. In that case, all the other requirements apply
but the alien physician may obtain permanent residence after only 3
years of qualifying service. The Service has established an
administrative method to implement the noted effective dates by
providing guidance at 8 CFR 204.12(d) for each group of possible
petitioners and beneficiaries.
[[Page 53891]]
Is This Waiver Available to an Alien Physician Who Is the Beneficiary
of an Immigrant Visa Petition That the Service Denied Prior to the
Amendment's Enactment Date of November 12, 1999?
If a Service decision that denied an immigrant visa petition became
administratively final before November 12, 1999, the alien physician
may obtain the benefit contained in the interim rule only through the
filing of a new immigrant visa petition with the required evidence. The
Service will not entertain motions to reopen or reconsider denied cases
because the provisions of section 203(b)(2)(B)(ii) of the Act were not
in effect when those particular cases were denied. Under established
precedent, in order for an alien to receive a priority date, his or her
petition must be fully approvable under the law that is in effect at
the time of filing. See Matter of Atembe. 19 I&N Dec. 427 (BIA 1986).
The denial of a motion to reopen or reconsider, however, will be
without prejudice to the filing of a new immigrant visa petition.
This restriction applies only if the denial became final before
November 12, 1999. That is, if the petitioner had filed a timely appeal
of the Administrative Appeals Office (AAO) which was still pending as
of that date, or, if the AAO affirmed the denial but the petitioner had
already sought judicial review by November 12, 1999, it will not be
necessary to file a new petition. In making provision for cases filed
before November 1, 1998, however, section 203(b)(2)(B)(ii)(IV) of the
Act makes it clear that Congress intended to apply this new provision
to all petitions that were actually pending on November 12, 1999. If a
case was pending before the AAO or a Federal court on November 12,
1999, the Service will support remand of the case to the proper Service
Center for a new decision in light of the new amendment. If the case is
still pending before a Service Center, the visa petitioner may
supplement the record with evidence that satisfies the requirements of
section 203(b)(2)(B)(ii) of the Act.
At What Point in the Process May an Alien Physician Apply for
Adjustment of Status?
Section 203(b)(2)(B)(ii)(III) of the Act allows any physician in
receipt of an approved immigrant petition with an accompanying national
interest waiver request based on full-time service in a shortage area
to immediately apply for adjustment of status to that of lawful
permanent resident. With a non-frivolous adjustment of status
application pending, the alien physician is eligible to apply for an
Employment Authorization Document (EAD) pursuant to 8 CFR
274a.12(c)(9). (Physicians with approved immigrant petitions and
national interest waivers based on service in a shortage area should
file the application for adjustment of status and the application for
an EAD simultaneously.) This relieves the physician of having to
maintain any type of valid nonimmigrant status prior to the final
adjudication of the adjustment of status application. That is to say,
the alien physician, under section 245(c)(7) of the Act, must have been
in a lawful nonimmigrant status when the alien physician files the
adjustment application, but need not remain in lawful nonimmigrant
status during the entire period of medical service.
At What Point Does the Service Begin Counting the Physician's 5 or 3-
year Medical Practice Requirement?
In general, the alien's 5-year or 3-year period of medical service
begins when the alien starts working for the petitioner in a medically
underserved area. If the physician, other than those with J-1
nonimmigrant visas, already has authorization to accept employment at
the facility, the 6-year or 4-year period during which the physician
must provide the service begins on the date that the Service approves
the Form I-140 petition and national interest waiver. If the physician
must obtain employment authorization before the physician can begin
working, the 6-year or 4-year period begins on the date the Service
issues an EAD. Since section 203(b)(2)(B)(ii)(II) of the Act
specifically prohibits any time served in J-1 nonimmigrant status as
counting towards the 5-year service requirement, J-1 physicians with
approved Form I-140 petitions will have their medical service under
this rule begin on the date the physician starts his or her employment
with the petitioner, and after the Service issues an EAD.
The interim rule does include a special provision for former J-1
nonimmigrant physicians who have obtained foreign residence requirement
waivers. Section 214(l) of the Act, as previously amended by section
220 of Public Law 103-416, provides a special waiver of the foreign
residence requirement for alien physicians who are willing to work at
VA facilities or in HHS-designated underserved areas. Under section
214(l), 3 years' service as an H-1B nonimmigrant is sufficient. The
interim rule makes clear that for aliens who already have a waiver
under section 214(l) of the Act, the Service will calculate the 5-year
or 3-year period of services of the national interest waiver under
section 203(b)(2)(B)(ii) of the Act beginning on the date the alien
changed from J-1 to H-1B status. That is, an alien who is subject to
the foreign residence requirement will not be required to first serve
for 3 years to obtain that waiver and then to serve an additional 5
years to obtain adjustment of status based on the national interest
waiver.
Will the Service Hold Open an Adjustment of Status Application for the
Aggregate 5 or 3-year Period?
Section 203(b)(2)(B)(ii)(II) of the Act prohibits the Attorney
General from making a final determination on any adjustment of status
application submitted by a physician practicing medicine full-time in a
medically underserved area until the physician has had the opportunity
to prove that he or she has worked full-time as a physician for an
aggregate of 5 or 3 years, depending on filing date. Physicians should
note that this period of service does not count any time the physician
has spent in a J-1 nonimmigrant status.
The interim rule establishes two points where the alien physician
must submit evidence noting his or her practice of medicine in an
underserved area. First, physicians with the 5-year service requirement
must make an initial submission of evidence no later than 120 days
after the second anniversary of the approval of the immigrant petition,
From I-140. The physician must document at least 12 months of
qualifying employment during the first 2-year period. If a physician
has not worked at least one year of this 2-year period, it will be
mathematically impossible for the physician to reach his or her five-
year mark within six years. At the end of the physician's four-year
balance, evidence must be submitted that documents the employment of
the final years of the 5-year aggregate service requirement. Alien
physicians with the 3-year service requirement will only be required to
submit evidence once, at the conclusion of the 3-years aggregate
service.
As evidence, the Service will request individual tax return
documents, and documentation from the employer attesting that the
physician has in fact performed the required full-time clinical medical
service. If a physician obtained the waiver based on his or her plan to
establish his or her own practice, the physician must submit
documentation proving he or she did so, including proof of the
incorporation of the
[[Page 53892]]
medical practice (if incorporated), business licenses, and business tax
returns.
Are the Adjustment of Status Filing Requirements Different for These
Alien Physicians?
Yes. Since the Attorney General is prohibited from making the final
adjudication on a physician's adjustment of status application, until
the physician has submitted evidence documenting the medical service in
a shortage area or areas, the interim rule establishes two
modifications to the adjustment filing procedure. First, physicians
will not be scheduled for fingerprinting at an Application Support
Center until the physician submits evidence documenting the completion
of the required years of service. Second, physicians will not submit
the required medical examination report at the time of filing for
adjustment. The medical report will instead be submitted with the
documentary evidence noting the physician's fulfillment of the 5 or 3-
year medical service requirement.
Can an Alien Physician Relocate to Another Underserved Area During the
5 or 3-year Service Period?
Yes, physicians will not be prohibited from relocating to other
underserved areas. However, the interim rule establishes that any
physician desiring to relocate must submit a new petition that
documents the reasons for the proposed relocation. The interim rule, at
8 CFR 204.12(f), establishes the necessary procedures for the alien
physician and the new petitioner to follow.
The Service will take into account the amount of time the physician
is engaged in full-time practices in calculating the aggregate medical
service time in the underserved areas. For example, if the physician
completed 3 years of service before approval of a second petition, then
only 2 more years of service would be needed to qualify for adjustment
of status. However, petitioners and beneficiaries should note that the
authorization to begin a medical practice in a new area does not
constitute the beginning of a new 6-year period. Regardless of the
number of moves, physicians are granted just one 6-year period to
complete the required service time.
Will the Service Require a Physician To Relocate to Another Underserved
Area If the Initial Area Loses Designation as an Underserved Area?
The interim rule does not require that a physician relocate to
another underserved area should the area the physician is practicing
full-time clinical medicine lose its designation as an underserved
area. The purpose of such a designation is to foster a greater
physician presence in underserved areas. The Service believed one of
the desired results of the statutory amendment is for physicians to
take up residency in these areas and become integral parts of the
community. Once an area is no longer designated as an underserved area,
however, the Service can no longer grant national interest waivers for
physicians to practice in that area (other than for physicians who will
work in a VA facility).
What Action Will the Service Take If the Alien Physician Does Not
Submit the Required Evidence Needed To Complete the Adjustment Process?
The interim rule establishes, at section 245.18(i), that the
Service will deny the application for adjustment of status and revoke
approval of the Form I-140 if a physician fails to file proof of the
physician's completion of the service requirement in a timely fashion.
Request for Comments
The Service is seeking public comments regarding this interim rule.
In particular, the Service is interested in hearing from States on the
Service's intended method of vesting State departments of public health
with the authority to issue attestations for alien physicians. The
Service welcomes suggestions on this and all other topics concerning
the information contained within this interim rule.
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The
reason and necessity for immediate implementation of this interim rule
without prior notice and comment is that the new legislation became
effective upon enactment and requires the Service to alter the
processing of immigrant petitions where the petitioner is requesting a
national interest waiver based on service as a physician at a VA
facility or in an area designated by the Secretary of HHS as having a
shortage of health care professionals. Issuing an interim rule allows
the regulatory provisions to become effective in a relatively short
period of time, and allows alien physicians to begin taking advantage
of the new provisions without further delays.
The Service is also aware of the effect that delays in issuing
these interim regulations may have on public health in underserved
areas of the United States. For this reason, the Service has already
consulted with and incorporated suggestions from other Federal agencies
involved with physician shortage issues, including HHS, the VA, the
Departments of State and Agriculture, and the Appalachian Regional
Commission.
For these reasons, the Commissioner has determined that delaying
the implementation of this rule would be unnecessary and contrary to
the public interest, and that there is good cause for dispensing with
the requirements of prior notice. However, the Service welcomes public
comment on this interim rule and will address those comments prior to
the implementation of the final rule.
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. While some physicians will self-petition and establish
self-operated medical practices or clinics, the Service anticipates
that the majority of physicians taking advantage of the provisions
outlined within this regulation will be employed by hospitals, clinics,
or other medical facilities. In these instances, the effect on
hospitals, clinics, or other medical facilities considered small
entities will be positive by expanding the labor pool of qualified
physicians eligible to be employed in designated underserved areas.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1-year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse
[[Page 53893]]
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is 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. Under Executive Order 12866, section 6(a)(3)(B)-(D), this
proposed rule has been submitted to the Office of Management and Budget
for review. This rule is mandated by the Nursing Relief for
Disadvantaged Areas Act of 1999 in order to create an incentive for
qualified alien physicians to practice medicine in medically
underserved areas of the United States.
Executive Order 13132
This rule 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 section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act of 1995
The evidence requirements contained in Sec. 204.12 and Sec. 245.18
that must be submitted with the Forms I-140 and I-485 are considered
information collections. Since a delay in issuing this interim rule
could have an impact in providing public health services in underserved
areas of the United States, the Service is using emergency review
procedures for review and clearance by the Office of Management and
Budget (OMB) in accordance with the Paperwork Reduction Act (PRA) of
1995.
The OMB approval has been requested by September 21, 2000. If
granted, the emergency approval is only valid for 180 days. Comments
concerning the information collection should be directed to: Office of
Information and Regulatory Affairs, OMB Desk Officer for the
Immigration and naturalization Service, Office of Management and
Budget, Room 10235, Washington, DC 20503.
During the first 60 days of this same period a regular review of
this information will also be undertaken. Written comments are
encouraged and will be accepted until November 6, 2000. Your comments
should address one or more of the following points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information, including the validity of
the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information
to be collected; and
(4) Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
The Service, in calculating the overall burden this requirement
will place upon the public, estimates that approximately 8,000
physicians may apply for the national interest waivers annually. The
Service also estimates that it will take the physicians approximately 1
hour to comply with the new requirements as noted in this interim rule.
This amounts to 8,000 total burden hours.
Organizations and individuals interested in submitting comments
regarding this burden estimate or any aspect of these information
collection requirements, including suggestions for reducing the burden,
should direct them to: Immigration and Naturalization Service,
Director, Policy Directives and Instructions Branch, 425 I Street NW.,
Room 5307, Washington, DC 20536.
List of Subjects
8 CFR Part 204
Administrative practice and procedures, Aliens, Employment,
Immigration, Petitions.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 204--IMMIGRANT PETITIONS
1. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1003, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part 2.
2. Section 204.12 is added to read as follows:
Sec. 204.12 How can second-preference immigrant physicians be granted
a national interest waiver based on service in a medically underserved
area or VA facility?
(a) Which physicians qualify? Any alien physician (namely doctors
of medicine and doctors of osteopathy) for whom an immigrant visa
petition has been filed pursuant to section 203(b)(2) of the Act shall
be granted a national interest waiver under section 203(b)(2)(B)(ii) of
the Act if the physician requests the waiver in accordance with this
section and establishes that:
(1) The physician agrees to work full-time (40 hours per week) in a
clinical practice for an aggregate of 5 years (not including time
served in J-1 nonimmigrant status); and
(2) The service is;
(i) In a geographical area or areas designated by the Secretary of
Health and Human Services (HHS) as a Medically Underserved Area, a
Primary Medical Health Professional Shortage Area, or a Mental Health
Professional Shortage Area, and in a medical speciality that is within
the scope of the Secretary's designation for the geographical area or
areas; or
(ii) At a health care facility under the jurisdiction of the
Secretary of Veterans Affairs (VA); and
(3) A Federal agency or the department of public health of a State,
territory of the United States, or the District of Columbia, has
previously determined that the physician's work in that area or
facility is in the public interest.
(b) Is there a time limit on how long the physician has to complete
the required medical service?
(1) If the physician already has authorization to accept employment
(other than as a J-1 exchange alien), the beneficiary physician must
complete the aggregate 5 years of qualifying full-time clinical
practice during the 6-year period beginning on the date of approval of
the Form I-140.
(2) If the physician must obtain authorization to accept employment
before the physician may lawfully begin working, the physician must
complete the aggregate 5 years of qualifying full-time clinical
practice during the 6-year period beginning on the date of the Service
issues the necessary employment authorization document.
(c) Are there special requirements for these physicians?
Petitioners requesting the national interest waiver is described in
this section on behalf of a qualified alien physician, or alien
physicians self-
[[Page 53894]]
petitioning for second preference classification, must meet all
eligibility requirements found in paragraphs (k)(1) through (k)(3) of
Sec. 204.5. In addition, the petitioner or self-petitioner must submit
the following evidence with Form I-140 to support the request for a
national interest waiver. Physicians planning to divide the practice of
full-time clinical medicine between more than one underserved area must
submit the following evidence for each area of intended practice.
(1)(i) If the physician will be an employee, a full-time employment
contract for the required period of clinical medical practice, or an
employment commitment letter from a VA facility. The contract or letter
must have been issued and dated within 6 months prior to the date the
petition is filed.
(ii) If the physician will establish his or her own practice, the
physician's sworn statement committing to the full-time practice of
clinical medicine for the required period, and describing the steps the
physician has taken or intends to actually take to establish the
practice.
(2) Evidence that the physician will provide full-time clinical
medical service:
(i) In a geographical area or areas designated by the Secretary of
HHS as having a shortage of health care professionals and in a medical
speciality that is within the scope of the Secretary's designation for
the geographical area or areas; or
(ii) In a facility under the jurisdiction of the Secretary of VA.
(3) A letter (issued and dated within 6 months prior to the date on
which the petition is filed) from a Federal agency or from the
department of public health (or equivalent) of a State or territory of
the United States or the District of Columbia, attesting that the alien
physician's work is or will be in the public interest.
(i) An attestation from a Federal agency must reflect the agency's
knowledge of the alien's qualifications and the agency's background in
making determinations on matters involving medical affairs so as to
substantiate the finding that the alien's work is or will be in the
public interest.
(ii) An attestation from the public health department of a State,
territory, or the District of Columbia must reflect that the agency has
jurisdiction over the place where the alien physician intends to
practice clinical medicine. If the alien physician intends to practice
clinical medicine in more than one underserved area, attestations from
each intended area of practice must be included.
(4) Evidence that the alien physician meets the admissibility
requirements established by section 212(a)(5)(B) of the Act.
(5) Evidence of the Service-issued waivers, if applicable, of the
requirements of sections 212(e) of the Act, if the alien physician has
been a J-1 nonimmigrant receiving medical training within the United
States.
(d) How will the Service process petitions filed on different
dates?
(1) Petitions filed on or after November 12, 1999. For petitions
filed on or after November 12, 1999, the Service will approve a
national interest waiver provided the petitioner or beneficiary (if
self-petitioning) submits the necessary documentation to satisfy the
requirements of section 203(b)(2)(B)(ii) of the Act and this section,
and the physician is otherwise eligible for classification as a second
preference employment-based immigrant. Nothing in this section relieves
the alien physician from any other requirement other than that of
fulfilling the labor certification process as provided in
Sec. 204.5(k)(4).
(2) Petitions pending on November 12, 1999. Section
203(b)(2)(B)(ii) of the Act applies to all petitions that were pending
adjudication as of November 12, 1999 before a Service Center, before
the associate Commissioner for Examinations, or before a Federal court.
Petitioners whose petitions were pending on November 12, 1999, will not
be required to submit a new petition, but may be required to submit
supplemental evidence noted in paragraph (c) of this section. The
requirement that supplemental evidence be issued and dated within 6
months prior to the date on which the petition is filed is not
applicable to petitions that were pending as of November 12, 1999. If
the case was pending before the Associate Commissioner for Examinations
or a Federal court on November 12, 1999, the petitioner should ask for
a remand to the proper Service Center for consideration of this new
evidence.
(3) Petitions denied on or after November 12, 1999. The Service
Center or the Associate Commissioner for Examinations shall reopen any
petition affected by the provision of section 203(b)(2)(B)(ii) of the
Act that the Service denied on or after November 12, 1999, but prior to
the effective date of this rule.
(4) Petitions filed prior to November 1, 1998. For petitions filed
prior to November 1, 1998, and still pending as of November 12, 1999,
the Service will approve a national interest waiver provided the
beneficiary fulfills the evidence requirements of paragraph (c) of this
section. Alien physicians that are beneficiaries of pre-November 1,
1998, petitions are only required to work full-time as a physician
practicing clinical medicine for an aggregate of 3 years, rather than 5
years, not including time served in J-1 nonimmigrant status, prior to
the physician either adjusting status under section 245 of the Act or
receiving a visa issued under section 204(b) of the Act. The physician
must complete the aggregate of 3 years of medical service within the 4-
year period beginning on the date of the approval of the petition, if
the physician already has authorization to accept employment (other
than as a J-1 exchange alien). If the physician does not already have
authorization to accept employment, the physician must perform the
service within the 4-year period beginning the date the Service issues
the necessary employment authorization document.
(5) Petitions filed and approved before November 12, 1999. An alien
physician who obtained approval of a second preference employment-based
visa petition and a national interest waiver before November 12, 1999,
is not subject to the service requirements imposed in section
203(b)(2)(B)(ii) of the Act. If the physician obtained under section
214(1) of the Act a waiver of the foreign residence requirement imposed
under section 212(e) of the Act, he or she must comply with the
requirements of section 214(1) of the Act in order to continue to have
the benefit of that waiver.
(6) Petitions denied prior to November 12, 1999. If a prior Service
decision denying a national interest waiver under section 203(b)(2)(B)
of the Act became administratively final before November 12, 1999, an
alien physician who believes that he or she is eligible for the waiver
under the provisions of section 203(b)(2)(B)(ii) of the Act may file a
new Form I-140 petition accompanied by the evidence required in
paragraph (c) of this section. The Service must deny any motion to
reopen or reconsider a decision denying an immigrant visa petition if
the decision became final before November 12, 1999, without prejudice
to the filing of a new visa petition with a national interest waiver
request that comports with section 203(b)(2)(B)(ii) of the Act.
(e) May physicians file adjustment of status applications? Upon
approval of a second preference employment-based immigrant petition,
Form I-140, and national interest waiver based on a full-time clinical
practice in a shortage area or areas of the United States, an alien
physician may submit Form I-485, Application to Register Permanent
Residence or Adjust Status, to the
[[Page 53895]]
appropriate Service Center. The Service will not approve the alien
physician's application for adjustment of status until the alien
physician submits evidence documenting that the alien physician has
completed the period of required service. Specific instructions for
alien physicians filing adjustment applications are found in
Sec. 245.18 of this chapter.
(f) May a physician practice clinical medicine in a different
underserved area? Physicians in receipt of an approved Form I-140 with
a national interest waiver based on full-time clinical practice in a
designated shortage area and a pending adjustment of status application
may apply to the Service if the physician is offered new employment to
practice full-time in another underserved area of the United States.
(1) If the physician beneficiary has found a new employer desiring
to petition the Service on the physician's behalf, the new petitioner
must submit a new Form I-140 (with fee) with all the evidence required
in paragraph (c) of this section, including a copy of the approval
notice from the initial Form I-140. If approved, the new petition will
be matched with the pending adjustment of status application. The
beneficiary will retain the priority date from the initial Form I-140.
The Service will calculate the amount of time the physician was between
employers so as to adjust the count of the aggregate time served in an
underserved area. This calculation will be based on the evidence the
physician submits pursuant to the requirements of Sec. 245.18(d) of
this chapter. An approved change of practice to another underserved
area does not constitute a new 6-year period in which the physician
must complete the aggregate 5 years of service.
(2) If the physician intends to establish his or her own practice,
the physician must submit a new Form I-140 (with fee) will all the
evidence required in paragraph (c) of this section, including the
special requirement of paragraph (c)(1)(ii) of this section and a copy
of the approval notice from the initial Form I-140. If approved, the
new petition will be matched with the pending adjustment of status
application. The beneficiary will retain the priority date from the
initial Form I-140. The Service will calculate the amount of time the
physician was between practices so as to adjust the count of the
aggregate time served in an underserved area. This calculation will be
based on the evidence the physician submits pursuant to the
requirements of Sec. 245.18(d) of this chapter. An approved change of
practice to another underserved area does not constitute a new 6-year
period in which the physician must complete the aggregate 5 years of
service.
(g) Do these provisions have any effect on physicians with foreign
residence requirements? Because the requirements of section
203(b)(2)(B)(ii) of the Act are not exactly the same as the
requirements of section 212(e) or 214(l) of the Act, approval of a
national interest waiver under section 203(b)(2)(B)(ii) of the Act and
this paragraph does not relieve the alien physician of any foreign
residence requirement that the alien physician may have under section
212(e) of the Act.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
3. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255, sec. 202. Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat.
2681; and 8 CFR part 2.
4. Section 245.18 is added to read as follows:
Sec. 245.18 How can physicians (with approved Forms I-140) that are
serving in medically underserved areas or at a Veterans Affairs
facility adjust status?
(a) Which physicians are eligible for this benefit? Any alien
physician who has been granted a national interest waiver under
Sec. 204.12 of this chapter may submit Form I-485 during the 6-year
period following Service approval of a second preference employment-
based immigrant visa petition.
(b) Do alien physicians have special time-related requirements for
adjustment?
(1) Alien physicians who have been granted a national interest
waiver under Sec. 204.12 of this chapter must meet all the adjustment
of status requirements of this part.
(2) The Service shall not approve an adjustment application filed
by an alien physician who obtained a waiver under section
203(b)(2)(B)(ii) of the Act until the alien physician has completed the
period of required service established in Sec. 204.12 of this chapter.
(c) Are the filing procedures and documentary requirements
different for these particular alien physicians? Alien physicians
submitting adjustment applications upon approval of an immigrant
petition are required to follow the procedures outlined within this
part with the following modifications.
(1) Delayed fingerprinting. Fingerprinting, as noted in the Form I-
485 instructions, will not be scheduled at the time of filing.
Fingerprinting will be scheduled upon the physician's completion of the
required years of service.
(2) Delayed medical examination. The required medical examination,
as specified in Sec. 245.5, shall not be submitted with Form I-485. The
medical examination report shall be submitted with the documentary
evidence noting the physician's completion of the required years of
service.
(d) Are alien physicians eligible for Form I-766, Employment
Authorization Document?
(1) Once the Service has approved an alien physician's Form I-140
with a national interest waiver based upon full-time clinical practice
in an underserved waiver based upon full-time clinical practice in an
underserved area or at a Veterans Affairs facility, the alien physician
should apply for adjustment of status to that of lawful permanent
resident on Form I-485, accompanied by an application for an Employment
Authorization Document (EAD), Form I-765, as specified in
Sec. 274a.12(c)(9) of this chapter.
(2) Since section 203(b)(2)(B)(ii) of the Act requires the alien
physician to complete the required employment before the Service can
approve the alien physician's adjustment application, an alien
physician who was in lawful nonimmigrant status when he or she filed
the adjustment application is not required to maintain a nonimmigrant
status while the adjustment application remains pending. Even if the
alien physician's nonimmigrant status expires, the alien physician
shall not be considered to be unlawfully present, so long as the alien
physician is practicing medicine in accordance with
Sec. 204.5(k)(4)(iii) of this chapter.
(e) When does the Service begin counting the physician's 5-year or
3-year medical practice requirement? Except as provided in this
paragraph, the 6-year period during which a physician must provide the
required 5 years of service begins on the date of the notice approving
the Form I-140 and the national interest waiver. Alien physicians who
have a 3-year medical practice requirement must complete their service
within the 4-year period beginning on that date.
(1) If the physician does not already have employment authorization
and so must obtain employment authorization before the physician can
begin working, then the period begins on the date the Service issues
the employment authorization document.
[[Page 53896]]
(2) If the physician formerly held status as a J-1 nonimmigrant,
but obtained a waiver of the foreign residence requirement and a change
of status to that of an H-1B nonimmigrant, pursuant to section 214(1)
of the Act, as amended by section 220 of Public Law 103-416, and
Sec. 212.7(c)(9) of this chapter, the period begins on the date of the
alien's change from J-1 to H-1B status. The Service will include the
alien's compliance with the 3-year period of service required under
section 214(l) in calculating the alien's compliance with the period of
service required under section 203(b)(2)(B)(ii)(II) of the Act and this
section.
(3) An alien may not include any time employed as a J-1
nonimmigrant physician in calculating the alien's compliance with the 5
or 3-year medical practice requirement. If an alien is still in J-1
nonimmigrant status when the Service approves a Form I-140 petition
with a national interest job offer waiver, the aggregate period during
which the medical practice requirement period must be completed will
begin on the date the Service issues an employment authorization
document.
(f) Will the Service provide information to the physician about
evidence and supplemental filings? Upon receipt of the adjustment
application, the Service shall provide the physician with the following
information and projected timetables for completing the adjustment
process.
(1) The Service shall note the date that the medical service begins
(provided the physician already had work authorization at the time the
Form I-140 was filed) or the date that an employment authorization
document was issued.
(2) A list of the evidence necessary to satisfy the requirements of
paragraphs (g) and (h) of this section.
(3) A projected timeline noting the dates that the physician will
need to submit preliminary evidence two years and 120 days into his or
here medical service in an underserved area or VA facility, and a
projected date six years and 120 days in the future on which the
physician's final evidence of completed medical service will be due.
(g) Will physicians be required to file evidence prior to the end
of the 5 or 3-year period?
(1) For physicians with a 5-year service requirement, no later than
120 days after the second anniversary of the approval of Petition for
Immigrant Worker, Form I-140, the alien physician must submit to the
Service Center having jurisdiction over his or her place of employment
documentary evidence that proves the physician has in fact fulfilled at
least 12 months of qualifying employment. This may be accomplished by
submitting the following.
(i) Evidence noted in paragraph (h) of this section that is
available at the second anniversary of the I-140 approval.
(ii) Documentation from the employer attesting to the fill-time
medical practice and the date on which the physician began his or her
medical service.
(2) Physicians with a 3-year service requirement are not required
to make a supplemental filing, and must only comply with the
requirements of paragraph (h) of this section.
(h) What evidence is needed to prove final compliance with the
service requirement? No later than 120 days after completion of the
service requirement established under Sec. 204.12(a) of this section,
an alien physician must submit to the Service Center having
jurisdiction over his or her place of employment documentary evidence
that proves the physician has in fact satisfied the service
requirement. Such evidence must include, but is not limited to:
(1) Individual Federal income tax returns, including copies of the
alien'sW-2 forms, for the entire 3-year period of the balance years of
the 5-year period that follow the submission of the evidence required
in paragraph (e) of this section;
(2) Documentation from the employer attesting to the full-time
medical service rendered during the required aggregate period. The
documentation shall address instances of breaks in employment, other
than routine breaks such as paid vacations;
(3) If the physician established his or her own practice, documents
noting the actual establishment of the practice, including
incorporation of the medical practice (if incorporated), the business
license, and the business tax returns and tax withholding documents
submitted for the entire 3 year period, or the balance years of the 5-
year period that follow the submission of the evidence required in
paragraph (e) of this section.
(i) What if the physician does not comply with the requirements of
paragraphs (f) and (g) of this section? If an alien physician does not
submit (in accordance with paragraphs (f) and (g) of this section)
proof that he or she has completed the service required under
Sec. 204(n) of this chapter, the Service shall serve the alien
physician with a written notice of intent to deny the alien physician's
application for adjustment of status and, after the denial is
finalized, to revoke approval of the Form I-140 and national interest
waiver. The written notice shall require the alien physician to provide
the evidence required by paragraph (f) or (g) of this section within 30
days of the date of the written notice. The Service shall not extend
this 30-day period. If the alien physician fails to submit the evidence
within the 30-day period established by the written notice, the Service
shall deny the alien physician's application for adjustment of status
and shall revoke approval of the Form I-140 and of the national
interest waiver.
(j) Will a Service officer interview the physician?
(1) Upon submission of the evidence noted in paragraph (h) of this
section, the Service shall match the documentary evidence with the
pending form I-485 and schedule the alien physician for fingerprinting
at an Application Support Center.
(2) The local Service office shall schedule the alien for an
adjustment interview with a Service officer, unless the Service waives
the interview as provided in Sec. 245.6. The local Service office shall
also notify the alien if supplemental documentation should either be
mailed to the office, or brought to the adjustment interview.
(k) Are alien physicians allowed to travel outside the United
States during the mandatory 3 or 5-year service period? An alien
physician who has been granted a national interest waiver under
Sec. 204.12 of this chapter and has a pending application for
adjustment of status may travel outside of the United States during the
required 3 or 5-year service period by obtaining advanced parole prior
to traveling. Alien physicians may apply for advanced parole by
submitting form I-131, Application for Travel Document, to the Service
office having jurisdiction over the alien physician's place of
business.
(l) What if the Service denies the adjustment application? If the
Service denies the adjustment application, the alien physician may
renew the application in removal proceedings.
Dated: August 30, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-22832 Filed 9-5-00; 8:45 am]
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