ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

< Go back to Immigration Daily

[Federal Register: September 6, 2000 (Volume 65, Number 173)]
[Rules and Regulations]               
[Page 53889-53896]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06se00-1]                         


[[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.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-10-M





Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: