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

[Federal Register: December 19, 2002 (Volume 67, Number 244)]
[Rules and Regulations]               
[Page 77692-77697]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de02-11]                         


=======================================================================
-----------------------------------------------------------------------


DEPARTMENT OF HEALTH AND HUMAN SERVICES


Office of the Secretary


45 CFR Part 50


RIN: 0991-AB21


 
HHS Exchange Visitor Program; Request for Waiver of the Two-Year 
Foreign Residence Requirement


AGENCY: Office of the Secretary, HHS.


ACTION: Interim final rule with opportunity for public comment.


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


SUMMARY: This interim final rule with comment period amends the 
regulations governing requests for the waiver of the two-year foreign 
residence requirement of the Health and Human Services (HHS) Exchange 
Visitor Program. These revisions permit institutions and health care 
facilities to submit to HHS requests for waiver of the two-year home-
country physical presence requirement for physician Exchange Visitors 
to deliver health care services in underserved areas.


DATES: These interim final regulations are effective December 19, 2002. 
As discussed below, comments on the regulations are invited but must be 
received by February 3, 2003.


ADDRESSES: Written comments should be addressed to Dr. William R. 
Steiger, Office of Global Health Affairs, 200 Independence Ave., SW., 
Room 639-H, Washington, DC 20201. All comments received will be 
available for public inspection and copying at the above address, 
weekdays (Federal holidays excepted) between the hours of 9:00 a.m. and 
5:30 p.m.


FOR FURTHER INFORMATION CONTACT: Dr. William R. Steiger, Office of 
Global


[[Page 77693]]


Health Affairs, 200 Independence Ave., SW., Room 639-H, Washington, DC 
20201. Telephone: 202-690-6174; Fax: 202-690-7127.


SUPPLEMENTARY INFORMATION: The U.S. Exchange Visitor Program, 
administered by the Department of State, seeks to promote peaceful 
relations and mutual understanding with other countries through 
educational and cultural exchange programs. Under one facet of this 
program, foreign national physicians may come to the United States to 
participate in graduate medical education programs under J-1 visas.
    Upon completion of the graduate medical education program and 
expiration of the visa and prior to pursuing permanent residency, the 
Exchange Visitor physician must return to his or her country of 
nationality or last country of legal permanent residence for a minimum 
of two years to share the benefit of the knowledge and experience 
gained in the United States. Under limited and exceptional 
circumstances, an Exchange Visitor may obtain a waiver of the 
requirement to return home. An avenue through which a waiver may be 
obtained is by a request made, on the Exchange Visitor's behalf, by an 
interested United States Government Agency (IGA). Numerous Federal 
agencies have sought waivers as IGAs.
    The vast majority of IGA requests for waivers involve international 
medical graduates who entered the United States to pursue graduate 
medical education or training. Historically, HHS has restricted its 
activity as an IGA to requesting waivers for researchers whose research 
could have national or international significance. In contrast, the 
Department of Agriculture and the Appalachian Regional Commission have 
been the most active IGAs seeking waivers for physicians to provide 
services in Health Professional Shortage Areas (HPSAs) or Medically 
Underserved Areas and Populations (MUA/Ps). On April 16, 2002, the 
Department of Agriculture announced it would process its pending waiver 
requests and then cease participation as an IGA.
    Pursuant to section 332 of the Public Health Service Act, HHS 
designates areas, facilities or population groups as HPSAs if they meet 
the criteria specified in 42 CFR part 5. HPSA designations are 
separated into three categories: those for shortages of primary medical 
care, dental, and mental health professionals. HHS publishes lists of 
the designated areas annually in the Federal Register, and publishes 
updates to the list on the HHS web site periodically. Pursuant to Sec. 
330(b)(3)-(6), HHS also designates areas and population groups as MUA/
Ps based on established criteria that indicate a shortage of personal 
health services.
    HHS is committed to increasing access to care for the nation's most 
medically underserved individuals. In accordance with this mission, HHS 
has decided to request waivers for physicians to provide primary care 
services in HPSAs and MUA/Ps and for psychiatrists to provide care in 
Mental Health HPSAs. In determining whether to request a waiver for an 
Exchange Visitor to deliver primary health care services, HHS will 
consider information from and coordinate with State Departments of 
Public Health (or the equivalent), other IGAs that request waivers, HHS 
programs such as the National Health Service Corps, and other relevant 
government agencies. This change in HHS's role requires amendment of 
the HHS regulations governing J-1 visa waiver requests.
    The Secretary recognizes that the determination of need for health 
care services in specific geographic areas is affected by services 
provided by physicians holding nonimmigrant visas, as well as 
physicians assigned to these areas under HHS programs, such as the 
National Health Service Corps. On a related issue, during the first 
quarter of calendar year 2003, the Secretary intends to propose 
revisions to the regulations governing the designation of HPSAs and 
MUA/Ps.
    HHS continues to endorse the philosophy that Exchange Visitors are 
committed to return to their country of nationality or last legal 
permanent residence home for at least two years after completing their 
program. Consistent with this philosophy, the regulations provide that 
the HHS Exchange Visitor Waiver Review Board may determine the 
appropriate numbers and geographic areas for waivers for the delivery 
of health care service. These determinations would be made based on 
data relating to the health care needs of the relevant areas.
    The HHS eligibility criteria established under this rule are solely 
for the purpose of requesting HHS to act as an IGA and are consistent 
with the Department of State regulations governing such waiver 
requests. HHS eligibility requirement criteria for waiver requests are 
in addition to and independent of the existing waiver and visa criteria 
established by the Immigration and Naturalization Service (INS), the 
Department of State, and the Department of Labor. HHS stresses that its 
waiver regulations do not relieve alien physicians from their 
responsibility to comply with visa requirements on a timely basis to 
maintain lawful status. Nor should these HHS regulations be confused 
with criteria applicable to the waiver program implemented by state 
departments of health (the Conrad program).
    Alien physicians are strongly encouraged to begin the waiver 
process as early as they possibly can while still in the residency 
training program. Early filing of the waiver request by the alien 
physician, coupled with timely processing of the request by the 
relevant government agencies, will facilitate the timely completion of 
the waiver process before the authorized J-1 admission expires, and the 
physician's subsequent application for change of nonimmigrant status 
from J-1 to H-1B.
    HHS also notes that during the 12-month period following completion 
of the residency training program, an alien physician who has departed 
from the United States is still eligible to apply for an IGA waiver. He 
or she may pursue the waiver from abroad. If the waiver is granted, the 
alien physician may then procure an H-1B visa and seek admission to the 
United States to begin working in the location specified in the 
employment contract and approved by HHS.
    The HHS criteria for waiver requests incorporate the requirements 
currently imposed by the Department of State regulations that govern 
waiver requests from IGAs based on the need for the delivery of health 
care services. In brief, the criteria for a waiver recommendation by 
HHS acting as an IGA are as follows:
    1. Eligibility to apply for HHS waiver requests is limited to 
primary care physicians, and general psychiatrists who have completed 
their primary care or psychiatric residency training programs no more 
than 12 months before the date of commencement of employment under the 
contract described in the paragraph below. This 12-month eligibility 
limitation is to ensure that the physicians' primary care training is 
current and they are not engaged in subspecialty training. This HHS 
eligibility requirement relates only to eligibility for an HHS waiver 
recommendation and does not relieve physicians of the responsibility to 
maintain their lawful status. Primary care physicians are defined as: 
physicians practicing general internal medicine, pediatrics, family 
practice or obstetrics/gynecology and who are willing to work in a 
primary care HPSA or MUA/P; and general psychiatrists willing to work 
in a Mental Health HPSA.


[[Page 77694]]


    2. The petitioning health care facility must establish that it has 
recruited actively and in good faith for U.S. physicians in the recent 
past, but has been unable to recruit a qualified United States 
physician.
    3. The head of a petitioning health care facility must execute a 
statement to confirm that the facility is located in a specific, 
designated HPSA or MUA/P, and that it provides medical care to Medicaid 
and Medicare eligible patients and the uninsured indigent.
    4. The Exchange Visitor must execute a statement that he or she 
does not have pending, and will not submit, other IGA waiver requests 
while HHS processes the waiver request.
    5. The employment contract must require the Exchange Visitor to 
practice a specific primary care discipline for a minimum of three 
years, 40 hours per week in a specified HPSA or MUA/P. It may not 
include a non-compete clause that limits the Exchange Visitor's ability 
to continue to practice in any HHS-designated primary care or mental 
health HPSA or MUA/P after the period of obligation. The contract must 
be terminable only for cause and not terminable by mutual agreement 
until completion of the three-year commitment, except that the contract 
may be assigned to another eligible employer, subject to approval by 
HHS and consistent with all applicable INS and Department of Labor 
requirements.
    6. Both the employer and the alien physician must submit 
information to HHS as the Secretary may reasonably require.
    7. Both the employer and the alien physician must comply with all 
applicable Department of State, Department of Labor, INS, and HHS 
statutes, regulations and policies.
    HHS notes that if an alien physician acquires H-1B nonimmigrant 
status following approval by the INS of a request for waiver, then he 
or she becomes subject not only to the terms and conditions of the 
waiver, but also the terms and conditions of the H-1B nonimmigrant 
status. Failure to comply with those conditions will make that 
physician subject to removal from the United States by the INS.
    This rule also amends the HHS regulations by replacing references 
to the United States Information Agency (USIA) with the Department of 
State, following the consolidation of USIA and the Department of State 
as mandated by the Foreign Affairs Agencies Consolidation Act of 1998.
    The amendments to 45 CFR Part 50 are as follows:
    (1) Revise Sec.  50.1 to replace the reference to ``the United 
States Information Agency'' with ``the Department of State'' to reflect 
the reorganization of the two agencies.
    (2) In Sec.  50.2 revise paragraph (b) to delete the ``s'' in 
``Exchanges Visitor Program''; revise paragraph (c) to replace the 
reference to ``Office of International Affairs'' with the ``Office of 
Global Health Affairs''; remove the parenthetical examples in sentence 
three and add a new sentence at the end to authorize the Exchange 
Visitor Waiver Review Board to establish a workgroup to review requests 
for waivers for the delivery of health care services; and redesignate 
and move former paragraph (d) to new Sec.  50.6(a) entitled 
``Procedures for submission of application to HHS.''
    (3) In Sec.  50.3 redesignate and move former paragraphs (a)(1) 
through (3) to new Sec.  50.4 entitled ``Waivers for research,'' and 
revise former Sec.  50.3 to include policy for waivers for the delivery 
of health care services.
    (4) Revise Sec.  50.4 to redesignate, remove former paragraph (b) 
as unnecessary and move former paragraph (a) to make it paragraph (b) 
of new Sec.  50.6. Retitle Sec.  50.4 as ``Waivers for research'' and 
insert former paragraphs Sec.  50.3 (a)(1) through (3) as new 
paragraphs (a) through (c). Revise new paragraph (a) to remove the 
sentence which reads ``The Board will not request a waiver when the 
application demonstrates that the exchange visitor is needed merely to 
provide services for a limited geographical area and/or to alleviate a 
local community or institutional manpower shortage, however serious.''
    (5) Add a new Sec.  50.5 entitled ``Waivers for the delivery of 
health care service'' to provide criteria for requests for waivers 
based on a need for the provision of health care service.
    (6) Add new Sec.  50.6 entitled ``Procedures for Submission of 
application to HHS'' and insert former paragraph Sec.  50.2(d) as 
paragraph (a), and former paragraphs Sec.  50.4(a) and (b) as 
paragraphs (b) and (c).
    (7) Redesignate former Sec.  50.5 as new Sec.  50.7.
    (8) Remove former Sec.  50.6 as unnecessary.
    (9) Add new Sec.  50.8 entitled ``Compliance'' to note the 
enforcement authority of INS and the responsibility of the alien 
physician for compliance with the terms and conditions of both the 
applicable visa status and of the waiver.


Justification for Omitting Notice of Proposed Rulemaking


    Notice and public comment and delayed effective date have been 
waived for these amendments because it has been found for good cause in 
accordance with 5 U.S.C. 553 that notice and comment are 
``impracticable, unnecessary or contrary to the public interest.''
    Since the mid-1990's, the Department of Agriculture placed more 
than 3,098 physicians in underserved areas in 48 states through its J-1 
visa waiver program. While the Department of Agriculture will no longer 
be doing so, there remains a critical need for physicians in many parts 
of the United States that HHS is prepared to help meet by expanding its 
role in the J-1 visa waiver program and improving coordination of the 
placement of physicians in these areas. Any delay in implementation of 
these regulations would harm the medical needs of these vulnerable 
populations. Health care entities which will apply for exchange-visitor 
waivers have been unable to recruit adequate numbers of physicians to 
provide health services within their geographic areas. While the health 
care needs of underserved areas have decreased through the success of 
programs such as the National Health Service Corps and waivers 
requested by state public health departments, chronic shortages of 
physicians continue in certain geographic areas. Without Exchange 
Visitor physicians to help fill this gap, the health care needs of the 
populations in these areas remain unmet.
    Accordingly, the Secretary has determined, in accordance with 5 
U.S.C. 553 and HHS policy, that it would be unnecessary and contrary to 
the public interest to follow proposed rulemaking procedures in the 
issuance of these regulations or to delay their effective date. 
However, comments will be accepted at the above listed address for a 
period of 45 days following the publication of these regulations.


Economic and Regulatory Impact


    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when rulemaking is 
necessary, to select regulatory approaches that provide the greatest 
net benefits (including potential economic, environmental, public 
health, safety distributive and equity effects). In addition, under the 
Regulatory Flexibility Act (RFA of 1980), if a rule has a significant 
economic effect on a substantial number of small entities, the 
Secretary must specifically consider the economic effect of a rule on 
small entities and analyze regulatory options that could lessen the 
impact of the rule.
    Executive Order 12866 requires that all regulations reflect 
consideration of


[[Page 77695]]


alternatives of costs, of benefits, of incentives, of equity, and of 
available information. Regulations must meet certain standards, such as 
avoiding an unnecessary burden. Regulations which are ``significant'' 
because of cost, adverse effects on the economy, inconsistency with 
other agency actions, effects on the budget, or novel legal or policy 
issues, require special analysis.
    The Department has determined that the resources required to 
implement the requirement in these regulations are minimal. Therefore, 
according to the RFA and the Small Business Regulatory Enforcement Act 
of 1996, which amended the RFA, the Secretary certifies this action 
will not impose a significant burden on a substantial number of small 
entities. The Secretary has also determined that this action does not 
meet criteria for a major rule as defined by Executive Order 12866 and 
would have no major effect on the economy of Federal expenditures.
    We have determined that the rule is not a ``major rule'' within the 
meaning of the statute providing for Congressional Review of Agency 
Rulemaking, 5 U.S.C. 801. Similarly, the rule will not have effects on 
State, local and tribal governments and on the private sector such as 
to require consultation under the Unfunded Mandates Reform Act of 1995.
    Further, Executive Order 13132 establishes certain requirements 
that an agency must meet when it promulgates a rule that imposes 
substantial direct compliance costs on State and local governments, 
preempts State law, or otherwise has Federalism implications. We have 
reviewed the action herein under the threshold criteria of Executive 
Order 13132, Federalism, and have determined that this action would not 
have substantial direct effects on the rights, roles and 
responsibilities of States.


Paperwork Reduction Act of 1995


    This rule at 45 CFR Part 50 contains collection of information 
requirements subject to Office of Management and Budget (OMB) Review 
under the Paperwork Reduction Act (PRA) of 1995. These collection of 
information requirements are necessary to carry out the provisions of 
the Exchange Visitor program. In order to fairly evaluate whether an 
information collection should be approved by OMB, section 3506(c)(2)(A) 
of the PRA requires that we solicit comment on the following issues:
    [sbull] Whether the information collection is necessary and useful 
to carry out the proper functions of the agency;
    [sbull] The accuracy of the agency's estimate of the information 
collection burden;
    [sbull] The quality, utility, and clarity of the information to be 
collected; and
    [sbull] Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Section 50.4 of the rule contains information collection 
requirements currently approved under OMB Control Number 0990-0001.
    Sections 50.5(e)(4) and (5) of the rule contain disclosure 
requirements.
    Section 50.5(e)(4) requires facilities or practices sponsoring an 
Exchange Visitor waiver request for the delivery of health care to post 
a notice of the charges for services. On an annual basis it is 
estimated that it will take 300 practices one hour each to prepare and 
post such notices. The total annual burden associated with this 
requirement is 300 hours.
    Section 50.5(e)(5) of the rules contains the requirements for the 
submission of evidence that the applicant made unsuccessful efforts to 
recruit a U.S. physician. The burden associated with these requirements 
is the time and effort necessary for an applicant to submit the 
documentation. On an annual basis it is estimated that it will take 300 
applicants two hours each to and submit this documentation. The total 
annual burden associated with this requirement is 600 hours.
    The Department will submit a copy of this Rule to the Office of 
Management and Budget (OMB) for its review of the information 
collection requirements described above. These requirements are not 
effective until OMB has approved them.
    If you comment on any of these information collection requirements, 
please mail copies directly to the following:
    Cynthia Agens Bauer, OS Reports Clearance Officer, Room 503H, 
Humphrey Building, 200 Independence Avenue SW., Washington DC, 20201; 
and
    Office of Information and Regulatory Affairs, Office of Management 
and Budget, Room 10235, New Executive Office Building, Washington, DC 
20503, ATTN: Allison Eydt, HHS Desk Officer.


National Health Objectives for the Year 2010


    The Public Health Service is committed to achieving the health 
promotion and disease prevention objectives of Healthy People 2010. 
This is an HHS-led effort to set priorities for national attention. The 
activities covered by these amendments are related to the priority area 
(Access to Quality Health Services) in Healthy People 2010, which is 
available online at http://www.health.gov/healthypeople.


Smoke-Free Workplace


    This program is not subject to the Public Health Systems Reporting 
Requirements.


List of Subjects in 45 CFR Part 50


    Cultural exchange programs, Immigration, Health care, Medical care, 
Health professions, Health facilities, aliens.


    Dated: September 20, 2002.
William R. Steiger,
Director, Office of Global Health Affairs.
Approved: September 27, 2002.
Tommy G. Thompson,
Secretary.


    Accordingly, 45 CFR Part 50 is amended as follows:


PART 50--U.S. EXCHANGE VISITOR PROGRAM--REQUEST FOR WAIVER OF THE 
TWO-YEAR FOREIGN RESIDENCE REQUIREMENT


    Paragraph 1. The authority citation for part 50 continues to read 
as follows:


    Authority: 75 Stat. 527, 22 U.S.C. 2451 et seq., 84 Stat, 116, 8 
U.S.C. 1182 (e).


    Par. 2. Section 50.1 is revised to read as follows:




Sec.  50.1  Authority


    Under the authority of Mutual Educational and Cultural Exchange Act 
of 1961 (75 Stat. 527) and the Immigration and Nationality Act as 
amended (84 Stat. 116), the Department of Health and Human Services is 
an ``interested United States Government agency'' with the authority to 
request the Department of State to recommend to the Attorney General 
waiver of the two-year foreign residence requirement for Exchange 
Visitors under the Mutual Educational and Cultural Exchange Program. 
HHS eligibility requirement criteria for waivers are in addition to and 
independent of the existing waiver and visa criteria established by the 
Immigration and Naturalization Service (INS), the Department of State, 
and the Department of Labor. The waiver regulations described in this 
part do not relieve alien physicians seeking a waiver of the 2-year 
foreign residence requirement from complying with the terms and 
conditions imposed on their admission to the United States.
    Par. 3. Section 50.2 is amended by:
    1. Revising paragraphs (b) and (c).
    2. Removing paragraph (d).
    The revisions read as follows:


[[Page 77696]]


Sec.  50.2  Exchange Visitor Waiver Review Board.


* * * * *
    (b) Functions. The Exchange Visitor Waiver Review Board is 
responsible for making thorough and equitable evaluations of 
applications submitted by institutions, acting on behalf of Exchange 
Visitors, to HHS for a favorable recommendation to the Department of 
State that the two-year foreign residence requirement for Exchange 
Visitors under the Exchange Visitor Program be waived.
    (c) Membership. The Exchange Visitor Waiver Review Board consists 
of no fewer than three members and two alternates, of whom no fewer 
than three will consider any particular application. The Director of 
the Office of Global Health Affairs, Office of the Secretary, is an ex 
officio member of the Board and serves as its Chairman. The Director 
may designate a staff member of the Office of the Secretary to serve as 
member and Chairman of the Board in the Director's absence. The 
Assistant Secretary for Health appoints two regularly assigned members 
and two alternates to consider applications concerning health, 
biomedical research, and related fields. The Chairman may request the 
heads of operating divisions of the Department to appoint additional 
members to consider applications in other fields of interest to the 
Department. The Board may obtain expert advisory opinions from other 
sources. The Board may establish a workgroup from the operating 
divisions of the Department to consider applications for waivers based 
on the need for the delivery of health care services to underserved 
populations.


    Par. 4. Section 50.3 is revised to read as follows:




Sec.  50.3  Policy.


    (a) Policy for waivers. The Department of Health and Human Services 
endorses the philosophy that Exchange Visitors are committed to return 
home for at least two years after completing their program. This 
requirement was imposed to prevent the Program from becoming a stepping 
stone to immigration and to ensure that Exchange Visitors make 
available to their home countries their new knowledge and skills 
obtained in the United States. The Department will request waivers for 
the delivery of health care service to carry out the Department's 
mission to increase access to care for the nation's most medically 
underserved individuals. However, in keeping with the philosophy of the 
Program, the Exchange Visitor Waiver Review Board may determine the 
appropriate numbers and geographic areas for waivers for the delivery 
of health care service.
    (b) Criteria for waivers. The Exchange Visitor Waiver Review Board 
carefully applies stringent and restrictive criteria to its 
consideration of requests that it support waivers for Exchange 
Visitors. Each application is evaluated individually based on the facts 
available.
    (c) Waiver for members of Exchange Visitor's family. Where a 
decision is made to request a waiver for an Exchange Visitor, a waiver 
will also be requested for the spouse and children, if any, if they 
have J-2 visa status. When both members of a married couple are 
Exchange Visitors in their own right (i.e., each has J-1 visa status), 
separate applications must be submitted for each of them.


    Par. 5. Section 50.4 is revised to read as follows:




Sec.  50.4  Waivers for research.


    In determining whether to request a waiver for an Exchange Visitor 
engaged in the conduct of research, the Board considers the following 
key factors:
    (a) The program or activity at the applicant institution or 
organization in which the Exchange Visitor is employed must be of high 
priority and of national or international significance in an area of 
interest to the Department.
    (b) The Exchange Visitor must be needed as an integral part of the 
program or activity, or of an essential component thereof, so that loss 
of his/her services would necessitate discontinuance of the program, or 
a major phase of it. Specific evidence must be provided on how the loss 
or unavailability of the individual's services would adversely affect 
the initiation, continuance, completion, or success of the program or 
activity. The applicant organization/institution must clearly 
demonstrate that a suitable replacement for the Exchange Visitor cannot 
be found through recruitment or any other means. The Board will not 
request a waiver when the principal problem appears to be one of 
administrative, budgetary, or program inconvenience to the institution 
or other employer.
    (c) The Exchange Visitor must possess outstanding qualifications, 
training and experience well beyond the usually expected 
accomplishments at the graduate, postgraduate, and residency levels, 
and must clearly demonstrate the capability to make original and 
significant contributions to the program. The Board will not request a 
waiver simply because an individual has specialized training or 
experience or is occupying a senior staff position in a university, 
hospital, or other institution.




Sec.  50.5  [Redesignated as Sec. 50.7]


    Par. 6. Redesignate Sec.  50.5 as Sec.  50.7
    Par. 7. New section Sec.  50.5 is added to read as follows:




Sec.  50.5  Waivers for the delivery of health care service.


    In determining whether to request a waiver for an Exchange Visitor 
to deliver health care service, the Board will consider information 
from and coordinate with State Departments of Public Health (or the 
equivalent), other ``interested government agencies'' which request 
waivers, and other relevant agencies. The Board requires the following 
criteria for requests for waivers for the delivery of health care 
service:
    (a) The Exchange Visitor must submit a statement that he or she 
does not have pending and will not submit any other ``interested 
government agency'' waiver request while HHS processes the waiver 
request being submitted.
    (b) Waivers are limited to primary care physicians and general 
psychiatrists who have completed their primary care or psychiatric 
residency training programs no more than12 months before the date of 
commencement of employment under the contract described in subparagraph 
(d). This 12-month eligibility limitation is to ensure that the 
physicians' primary care training is current and they are not engaged 
in subspecialty training. This HHS eligibility requirement relates only 
to eligibility for an HHS waiver request and does not relieve 
physicians of the responsibility to maintain lawful status. Alien 
physicians are strongly encouraged to begin the waiver process as early 
as they possibly can while still in the residency training program. 
Early filing of the waiver request by the alien physician, coupled with 
timely processing of the request by the relevant government agencies, 
will facilitate the timely completion of the waiver process before the 
authorized J-1 admission expires, and the physician's subsequent 
application for change of nonimmigrant status from J-1 to H-1B.
    (c) Primary care physicians are defined as: physicians practicing 
general internal medicine, pediatrics, family practice or obstetrics/
gynecology willing to work in a primary care Health Professional 
Shortage Area (HPSA) or Medically Underserved Area or Population (MUA/
P); and general psychiatrists who are willing to work in a Mental 
Health HPSA. Note: these HHS eligibility criteria for waivers are in 
addition to and independent of the


[[Page 77697]]


existing waiver and visa criteria established by the Immigration and 
Naturalization Service (INS), the Department of State, and the 
Department of Labor.
    (d) The Exchange Visitor must have entered a contract with the 
applicant employer. This contract must:
    (1) Require the Exchange Visitor to provide primary medical care in 
a facility physically located in an HHS-designated primary care HPSA or 
MUA/P, or general psychiatric care in a Mental Health HPSA.
    (2) Require the Exchange Visitor to complete a term of employment 
of not less than three years providing primary care health services for 
not less than 40 hours per week.
    (3) Require the Exchange Visitor to:
    (i) Be licensed by the State where he or she will practice;
    (ii) Have completed a residency in one of the following 
specialties: family practice, general pediatrics, obstetrics/
gynecology, general internal medicine, or general psychiatry; and
    (iii) Be either board certified or board eligible in the relevant 
primary care discipline.
    (4) Be terminable only for cause until completion of the three-year 
commitment, except that, with the agreement of the alien physician, the 
employer may assign the contract to another eligible employer with the 
prior approval of HHS and compliance with all applicable INS and 
Department of Labor requirements. Prior to approving an assignment of 
the contract, HHS will review and consider the health care needs of the 
alien physician's current and proposed new locations, as well as the 
reasons for the request.
    (5) Not contain a restrictive covenant or non-compete clause which 
prevents or discourages the physician from continuing to practice in 
any HHS-designated primary care HPSA or MUA/P or Mental Health HPSA 
after the period of obligation under the contract has expired.
    (6) Provide that any amendment to the contract complies with all 
applicable Federal statutes, regulations and HHS policy.
    (7) Be consistent with all applicable Federal statutes, regulations 
and HHS policy.
    (e) The facility or practice sponsoring the physician:
    (1) Must provide health services to individuals without 
discriminating against them because either they are unable to pay for 
those services or payment for those health services will be made under 
Medicare or Medicaid.
    (2) May charge no more than the usual and customary rate prevailing 
in the geographic area in which the services are provided.
    (3) Must provide care on a sliding fee scale for persons at or 
below 200 percent of poverty income level. Persons with third-party 
insurance may be charged the full fee for service.
    (4) Must post a notice in a conspicuous location in the patient 
waiting area at the practice site to notify patients of the charges for 
service as required in this paragraph.
    (5) Must provide evidence that the applicant facility made 
unsuccessful efforts to recruit a physician who is a United States 
physician for the position to be filled by the Exchange Visitor.
    (6) Must provide a statement by the head of the facility to confirm 
the facility is located in a specific, designated HPSA or MUA/P, and 
that it provides medical care to Medicaid and Medicare eligible 
patients and to the uninsured indigent.
    (f) The employer and the alien physician must submit information to 
the Secretary at the times and in the manner that the Secretary may 
reasonably require.


    Par. 8. Revise Sec.  50.6 to read as follows:




Sec.  50.6  Procedures for Submission of application to HHS.


    (a) The Exchange Visitor Waiver Review Board will review 
applications submitted by private or non-federal institutions, 
organizations, or agencies or by a component agency of HHS. The Board 
will not accept applications submitted by Exchange Visitors or, unless 
under extenuating and exceptional circumstances, other U.S. Government 
Agencies.
    (b) Applications, instruction sheets and information are available 
from the Executive Secretary, Exchange Visitor Waiver Review Board. An 
authorized official of the applicant institution (educational 
institution, hospital, laboratory, corporation, etc.) must sign the 
completed application. The applicant institution must send the 
completed application to the address indicated on the instruction 
sheet.


    Par. 10. New section 50.8 is added to read as follows:




Sec.  50.8  Compliance.


    If an alien physician acquires H-1B nonimmigrant status following 
approval by the INS of a request for waiver, then he or she becomes 
subject not only to the terms and conditions of the waiver, but also 
the terms and conditions of the H-1B nonimmigrant status. Failure to 
comply with those conditions will make that physician subject to 
removal from the United States by the INS.


[FR Doc. 02-31972 Filed 12-17-02; 8:45 am]
BILLING CODE 4165-15-P





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