New Use for Old HPSAs

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> > [Federal Register: June 11, 2001 (Volume 66, Number 112)]> [Rules and Regulations]> [Page 31107-31114]> From the Federal Register Online via GPO Access [wais.access.gpo.gov]> [DOCID:fr11jn01-2]> > =======================================================================> -----------------------------------------------------------------------> > DEPARTMENT OF JUSTICE> > Immigration and Naturalization Service> > 8 CFR Parts 214, 248 and 299> > [iNS 2050-00]> RIN 1115-AF76> > > Petitioning Requirements for the H-1C Nonimmigrant Classification> Under Public Law 106-95> > AGENCY: Immigration and Naturalization Service, Justice.> > ACTION: Interim rule with request for comments.> > -----------------------------------------------------------------------> > SUMMARY: This interim rule amends the Immigration and Naturalization> Service's (Service) regulations in order to implement the Nursing> Relief for Disadvantaged Areas Act of 1999 (NRDAA) by providing> instruction on the filing and adjudication of petitions for H-1C> classification. This rule will facilitate the hiring of nonimmigrant> alien nurses to reduce the shortage of nurses in health professional> shortage areas in the United States.> > DATES: Effective Date: This interim rule is effective June 11, 2001.> Comment Date: Written comments must be submitted on or before> August 10, 2001.> > ADDRESSES: Please submit written comments to the Director, Policy> Directives and Instructions Branch,> > [[Page 31108]]> > Immigration and Naturalization Service, 425 I Street, NW., Room 5307,> Washington, DC 20536. To ensure proper handling, please reference the> INS number 2050-00 on your correspondence. Comments are available for> public inspection at the above address by calling (202) 514-3048 to> arrange for an appointment.> > FOR FURTHER INFORMATION CONTACT: W. Brown, Adjudications Officer,> Immigration and Naturalization Service, 425 I Street, NW., Room 3214,> Washington, DC 20536, telephone (202) 353-8177.> > SUPPLEMENTARY INFORMATION:> > What Is the NRDAA?> > On November 12, 1999, President Clinton signed into law the Nursing> Relief for Disadvantaged Areas Act of 1999 (NRDAA), Public Law 106-95.> The NRDAA created a new H-1C nonimmigrant category for registered> nurses who will work in facilities that serve health professional> shortage areas.> > Is the H-1C Program Similar to the H-1A Program That Expired on> September 1, 1995?> > The H-1A program was created by the Immigration Nursing Relief Act> of 1989 (INRA). While the NRDAA adopts, almost verbatim, many of the> provisions of the INRA, there are some differences between the two> programs. The NRDAA imposes more restrictions on the types of> facilities that may petition for a nonimmigrant registered nurse and> requires that these facilities make a greater number of attestations to> the Department of Labor (DOL) than did the INRA. Whereas the INRA> allowed for an unlimited number of H-1A nonimmigrant visas to be> issued, the NRDAA places a state-by-state numerical cap on the number> of H-1C nonimmigrant visas that may be issued. Also, unlike the INRA,> the NRDAA does not recognize nursing education received in Canada. For> the most part, however, the INRA and the NRDAA are identical and,> therefore, much of the regulatory language from the H-1A program has> been used for the H-1C program.> > What Is an H-1C Nonimmigrant?> > An H-1C nonimmigrant is an alien who is coming temporarily to the> United States to perform services as a registered nurse, who meets the> requirements of section 212(m)(1) of the Immigration and Nationality> Act (Act), and will perform services at a facility (as defined at> section 212(m)(6) of the Act) for which the Secretary of Labor has> determined and certified to the Attorney General that an unexpired> attestation is on file and in effect under section 212(m)(2) of the> Act.> > What Are the Eligibility Requirements for an H-1C Nurse?> > The NRDAA imposed three requirements on an alien seeking H-1C> nonimmigrant status. First, the alien must have obtained a full and> unrestricted license to practice professional nursing in the country> where he or she obtained nursing education, or the alien must have> received nursing education in the United States. Second, the alien must> have passed an appropriate examination (recognized in regulations> promulgated in consultation with the Secretary of Health and Human> Services) or have a full and unrestricted license under state law to> practice professional nursing in the state of intended employment.> Finally, the alien must be fully qualified and eligible under the laws> (including such temporary or interim licensing requirements which> authorize the nurse to be employed) governing the place of intended> employment to engage in the practice of professional nursing as a> registered nurse immediately upon admission to the United States and be> authorized under such laws to be employed by the facility.> The NRDAA does not specifically designate any particular> examination as an ``appropriate examination'' for the purpose of> meeting the eligibility requirements for the H-1C classification. At> present, the only ``appropriate examination'' available for a> prospective H-1C alien is the examination offered by the Commission on> Graduate of Foreign Nursing Schools (CGFNS). However, the Service may> eventually recognize additional examinations for this purpose.> Questions concerning the test offered by CGFNS should be directed> to CGFNS. CGFNS can be reached through its internet website,> www.cgfns.org.> > What Certification Requirements Are Imposed on an H-1C Alien?> > On September 30, 1996, President Clinton signed the Illegal> Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L.> 104-208. Section 343 of IIRIRA created a new ground of inadmissibility> at section 212(a)(5)© of the Immigration and Nationality Act (the> Act) for aliens coming to the United States to perform labor in certain> health care occupations. As initially written by Congress, section 343> of IIRIRA provides that any alien coming to the United States for the> purpose of performing labor as a health care worker, other than as a> physician, is inadmissible unless the alien presents to the consular> officer, or, in the case of adjustment of status, the Attorney General,> a certificate from the CGFNS, or an equivalent independent> credentialing organization approved by the Attorney General in> consultation with the Secretary of Health and Human Services (HHS).> Pursuant to the statute, the certificate must verify that: (1) The> alien's education, training, license, and experience are comparable> with that required for an American health care worker of the same type;> (2) they are authentic; (3) the alien's license is unencumbered; (4)> the alien has the level of competence in oral and written English> considered by the Secretary of HHS, in consultation with the Secretary> of Education, to be appropriate for health care work of the kind in> which the alien will be engaged, as shown by an appropriate score on> one or more nationally recognized, commercially available, standardized> assessments of the applicant's ability to speak and write English; and,> finally, (5) if a majority of states licensing the profession in which> the alien intends to work recognize a test predicting the success on> the profession's licensing or certification examination, the alien has> passed such an examination.> The NRDAA created an alternative certification requirement at> section 212® of the Act for certain nurses, which may include some H-> 1C nonimmigrant aliens. Section 212® of the Act provides that section> 212(a)(5)© of the Act shall not apply to a nurse who presents to the> consular office (or in the case of adjustment of status, the Attorney> General) a certified statement from the Commission on Graduates of> Foreign Nursing Schools (CGFNS) (or an equivalent independent> credentialing organization approved by the Attorney General and the> Secretary of Health and Human Services) which certifies that:> The alien has a valid and unrestricted license as a nurse> in the state where the alien intends to be employed and such state> verifies that the foreign licenses of alien nurses are authentic and> unencumbered;> The alien has passed the National Council Licensure> Examination (NCLEX);> The alien is a graduate of an English-language nursing> program in a country designated by the CGNFS which was in operation on> or before the date of enactment of the NRDAA or has been approved by> unanimous agreements by the CGFNS and any other approved credentialing> organizations.> The Service has granted authorization to three organizations to> issue> > [[Page 31109]]> > certificates to foreign health care workers pursuant to section 343 of> IIRIRA through the publication of two interim rules. However, the two> interim rules limited these organizations to issuing certificates to> aliens in only three occupations who are coming to the United States as> immigrants or who are applying for adjustment of status. Due to a> number of problems implementing a final regulation fully implementing> section 343, the Service has exercised its authority under section> 212(d)(3) and waived the requirements of section 343 of IIRIRA as it> relates to nonimmigrant aliens. The Service will continue to waive> section 343 for nonimmigrant aliens until such time as the Service> promulgates a final rule implementing section 343 of IIRIRA in full.> In order to avoid confusion for both health care workers and> medical facilities, and to ensure equitable administration of these two> statutory provisions, the Service will include the proposed regulations> implementing section 212® in the soon to be published proposed rule> implementing section 343 of IIRIRA. As a result, the Service will> exercise the authority granted to it in section 212(d)(3) of the Act> and waive section 212® for nonimmigrant aliens until publication of a> final rule implementing both section 343 of IIRIRA and section 212®> of the Act.> > Who Can File a Petition for an H-1C Nonimmigrant?> > An H-1C petition may be filed by a United States employer hospital> (facility) which has filed an attestation with the DOL. The INS will> rely on the determination made by DOL when it (DOL) reviews the> attestation. The facility must have attested that:> As of March 31, 1997, it was located in a health> professional shortage area (as defined in section 332 of the Public> Health Service Act (42 U.S.C. 254e));> Based on its settled cost report for the period beginning> in FY 1994, it had:> 1. At least 190 licensed acute care beds;> 2. At least 35 percent of its inpatients days were for patients> entitled to Medicare; and> 3. At least 28 percent of its inpatient days were for patients who> were entitled to Medicaid.> > Are There Additional Attestation Requirements Provided for in the> NRDAA?> > Yes. The facility must also attest to the DOL that:> The employment of the H-1C alien will not adversely affect> the wages and working conditions of other nurses similarly employed;> The H-1C alien will be paid the wage rate for registered> nurses similarly employed by the facility;> There is not a strike or lockout in the course of a labor> dispute;> It did not lay off and will not lay off a registered nurse> already employed by it within the period beginning 90 days before and> ending 90 days after the date of filing of any H-1C petition;> The employment of the H-1C alien is not intended to> influence an election for a bargaining representative for registered> nurses of the facility;> At the time of filing of the petition, notice of filing> has been provided by the facility to the bargaining representative of> the registered nurses at the facility or, where there is no such> bargaining representative, notice of the filing has been provided to> the registered nurses employed at the facility through posting in> conspicuous locations;> It will never employ a number of H-1C aliens that exceeds> 33 percent of the total number of registered nurses employed by it;> The H-1C alien will not be authorized to perform nursing> services at any worksite other than the worksite controlled by it, and> It will not transfer the alien from one worksite to> another.> The facility must also attest that it has taken steps to recruit> and retain registered nurses who are United States citizens or> immigrants. These steps include, but are not limited to:> Operating a training program for registered nurses at the> facility or financing (or providing participation in) a training> program for registered nurses elsewhere;> Providing career development programs and other methods of> facilitating health care workers to become registered nurses;> Paying registered nurses wages at a rate higher than> currently being paid to registered nurses similarly employed in the> geographic area; or> Providing reasonable opportunities for meaningful salary> advancement by registered nurses.> These steps do not need to have been taken by the facility prior to> the enactment of the NRDAA.> A copy of the attestation shall be provided, within 30 days of the> date of filing, to registered nurses employed at the facility on the> date of its filing. The attestation shall apply to all H-1C petitions> filed during the 1-year period beginning on the date of its filing with> the Secretary of Labor if the facility states in each petition that it> continues to comply with the conditions in the attestation. These> attestation requirements are explained further in regulations issued by> the Secretary of Labor at 20 CFR Part 655, subparts L and M, 65 FR> 51138 (Aug. 22, 2000).> > Does an Attestation Ever Expire?> > Yes. An attestation will expire either at the end of the 1-year> period beginning on the date of its filing with the Secretary of Labor> or at the end of the period of admission of the last H-1C alien with> respect to whose admission it applies, whichever is later. With regard> to an individual alien, the attestation remains valid as long as the> alien is employed by the facility that made the attestation.> > What Are the Penalties That the Attorney General May Impose on> Facilities?> > The NRDAA establishes that, if the Secretary of Labor finds that a> facility (for which an attestation is made) has failed to meet a> condition attested to, or that there was a misrepresentation of> material fact in the attestation, the Secretary may impose such> administrative remedies (including civil monetary penalties in an> amount not to exceed $1,000 per nurse per violation, with the total> penalty not to exceed $10,000 per violation) as the Secretary of Labor> deems appropriate. The Secretary of Labor shall also notify the> Attorney General of such finding and provide a recommendation regarding> the length of the debarment period. The Service will give considerable> weight to the Secretary's determination. Upon receipt of such notice,> the Service will make a final determination as to the length of the> period of debarment. The Service shall not approve H-1C petitions filed> by that facility for aliens to be employed by the facility for a period> of at least one year.> > Where Should H-1C Petitions Be Filed?> > All H-1C petitions must be filed on Form I-129 Petition for a> Nonimmigrant Worker at the Vermont Service Center (VSC).> > What Supporting Documents Should Be Submitted With the Petition?> > The petitioning facility must submit the following documents at the> time the H-1C petition is filed:> A current copy of the DOL's notice of acceptance of the> filing of its attestation on Form ETA 9081;> A statement describing any limitations which the laws of> the state or jurisdiction of intended employment place on the alien's> services; and> Evidence that the alien(s) named on the petition meets the> definition of a> > [[Page 31110]]> > registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A), and satisfies> the requirements for an H-1C nonimmigrant in section 212(m)(1) of the> Act.> > Can an H-1C Alien Change Employers?> > Yes. An alien admitted to the United States as an H-1C nonimmigrant> alien can change H-1C employers provided that the alien has not reached> the limit on his or her maximum period of stay in the United States.> The maximum period of stay for an H-1C nonimmigrant is 3 years. An H-1C> petition filed on behalf of an alien in the United States in H-1C> status may be approved for a period of time not to exceed the third> anniversary of the alien's initial admission into the United States. In> addition, H-1C petitions filed by a subsequent facility will be counted> against the numerical limitation for the state of the alien's intended> employment if the subsequent employment is in a different state.> An H-1C nonimmigrant alien may not change employers until such time> as the Service approves a new H-1C petition filed in the alien's behalf> by the new employer.> > Can an H-1C Alien Complete a 3-Year Period of Stay, Depart the> United States, and Reapply for Admission as an H-1C at a Later> Date?> > The statute provides that the period of admission to the United> States for H-1C nonimmigrant aliens is 3 years. The Service interprets> this 3-year period of time to represent the maximum period of admission> for an H-1C alien. The alien's maximum period of admission begins on> the date of the alien's initial admission to the United States and ends> on the third anniversary of that date. Temporary absences outside of> the United States for either business or personal reasons count towards> the alien's maximum period of admission. Once an H-1C alien has reached> the maximum period of admission in the United States, he or she is> ineligible to receive an extension of temporary stay.> > Can an H-1C Alien Obtain an Extension of Temporary Stay?> > Yes. While an H-1C alien should be admitted to the United States> for a maximum period of 3-years, there will be situations where an H-1C> alien may not be able to be admitted for the 3-year period of time. For> example, the alien's passport may not be valid for the required length> of time (See section 212(a)(7)((I) of the Act), or the alien may not> be able to depart from his or her home country and apply for admission> to the United States on the date that the H-1C petition becomes valid.> In no situation may the alien's stay be extended beyond the third> anniversary of the alien's initial admission to the United States.> In general, all H-1C aliens should be admitted for a period of> three years, if otherwise eligible under statute and regulation. In the> case of an alien admitted to the United States for a period of time> less than 3 years, the facility may file an I-129 petition to extend> the alien's stay.> While the statute limits the period of employment for an H-1C alien> to a maximum of 3 years, an alien may work for a petitioning employer> for a period less than 3 years, depending upon the needs of the> employer and the alien.> > Can an H-1C Alien Depart the United States After 3 Years and> Reapply for Admission as an H-1C Alien at a Later Date?> > No. The statutory language of the NRDAA clearly limits the stay of> an H-1C alien to a period of three years. To allow an alien to> circumvent this 3-year limitation merely by leaving the United States> and immediately returning defeats the purpose of the 3-year limitation> on the alien's period of admission.> > How Many H-1C Nonimmigrant Visas May Be Issued in a Fiscal Year?> > The total number of H-1C nonimmigrant visas issued in each fiscal> year shall not exceed 500. This is the national cap that cannot be> exceeded in a fiscal year. In addition to the national cap of 500, the> NRDAA also imposes caps on individual states on the basis of the> state's population. The number of visas issued shall not exceed 25 for> states with populations of less than 9 million, based upon the 1990> decennial census of population, and shall not exceed 50 for states with> populations of 9 million or more. Based on the 1990 decennial census of> population, the states with populations of 9 million or more are> California, Florida, Illinois, Michigan, New York, Ohio, Pennsylvania,> and Texas.> If the total number of visas available during the first three> quarters of a fiscal year exceeds the number of qualified H-1C aliens,> the excess visas shall be allocated to states, regardless of the> states' numerical cap, during the last quarter of the fiscal year. Once> the 500 national cap has been reached, the Service will reject any new> petitions subsequently filed requesting a work start date prior to the> first day of the next fiscal year.> > How Will the Allocation of Unused H-1C Visas Be Handled?> > H-1C petitions will be adjudicated in order of receipt. If a state> reaches its annual cap during the first three quarters of a fiscal> year, pending H-1C petitions for employment in that state will be put> on hold until the fourth quarter of the fiscal year. If the national> 500 cap has not been reached by the start of that quarter, then those> petitions that were put on hold will be adjudicated at that time.> During the final quarter of the fiscal year, all unused H-1C> nonimmigrant visas that have accrued during the previous three fiscal> year quarters will be distributed to the next approvable petition, in> order of receipt, regardless of whether the H-1C alien will be employed> in a state that has already reached its numerical cap.> If a petition is put on hold because the H-1C alien will be> employed in a state that has already reached its annual cap prior to> the fourth quarter of a fiscal year, and the Service then approves 500> petitions nationwide prior to the fourth fiscal year quarter, or prior> to adjudication of the held petition during that fiscal year, that> petition will continue to be held pending the allocation of new visas> in the next fiscal year.> The Service will publish quarterly reports concerning the number of> approved H-1C petitions, by state, on the Service's website at> www.ins.usdoj.gov. Again, once the 500 national cap has been reached,> the Service will reject any new petitions subsequently filed requesting> a work start date prior to the first day of the next fiscal year.> The first petition filed by a facility for an H-1C counts towards> the numerical limitation for the state of the alien's intended> employment, regardless of whether the alien was, or currently is, in H-> 1C status.> > Are H-1C Nonimmigrant Aliens Required To Meet Any Licensure> Requirements?> > The purpose of the NRDAA is to alleviate nursing shortages in> health professional shortage areas in the United States. As such, any> alien admitted to the United States as an H-1C nonimmigrant must meet> all licensing requirements for the state of intended employment and> must continue to perform the duties of a registered nurse as an H-1C.> Facilities and nurses are expected to comply with the licensing> standards established by the state licensing board. Facilities are also> required, pursuant to> > [[Page 31111]]> > Sec. 214.2(h)(11)(i)(A), to notify the Service if there are any changes> in the terms or conditions of employment of the H-1C alien. The Service> must be notified when an H-1C nurse is no longer licensed as a> registered nurse in the state of employment.> > How Will the Service Process Petitions That Are Revoked?> > If an H-1C petition is revoked because the alien never assumed his> or her employment with the petitioning facility, that number will be> returned to the pool of unused numbers and will then be made available> to the state in which the petitioning facility is located in the final> quarter of the fiscal year in which the petition was revoked. H-1C> petitions that are revoked by the Service where the alien worked for> the petitioning facility will not be returned to the pool of unused> numbers.> > Can More Than One Alien Be Included on an H-1C Petition?> > Yes. The NRDAA allows for a petitioning facility to include more> than one alien nurse on a single petition.> If the number of alien nurses included in a petition exceeds the> number available for the remainder of a fiscal year, the Service shall> approve the petition for the beneficiaries to the allowable amount in> the order that they are listed on the petition. The remaining> beneficiaries will be considered for approval in the subsequent fiscal> year.> > Will the H-1C Classification Expire?> > Yes. The H-1C classification will expire 4 years after the date> that the regulations are first promulgated. As such, all petitions for> H-1C alien nurses must be filed by June 13, 2005. In addition, an H-1C> nurse may not be admitted to the United States beyond June 13, 2005.> > Is a Facility Responsible for Paying the Alien's Return> Transportation Home If the Alien Is Dismissed by the Facility Prior> to the End of the Validity Period of the Petition?> > No. Unlike the H-1B and H-2B nonimmigrant classifications, the> NRDDA does not require a facility to pay the H-1C alien's return trip> transportation home.> > Good Cause Exception> > The Service's implementation of this rule as an interim rule, with> provision for post-promulgation public comment, is based upon the> ``good cause'' exceptions found at 5 U.S.C. 553((B) and (d)(3). The> reason and necessity for immediate implementation of this interim rule> without prior notice and comment is that the NRDAA became effective> immediately upon enactment on November 12, 1999, and allows for> facilities in medically underserved areas of the United States to> petition for registered nurses. Sections 2(d) and (3) of the NRDAA,> moreover, explicitly contemplate, and so implicitly authorize, the> promulgation of this rule as an interim regulation. 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 these reasons, the Commissioner of the Immigration and> Naturalization Service 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 invites 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 and Flexibility Act (5 U.S.C. 605(),> has reviewed this regulation and, by approving it, certifies that this> rule will not have a significant economic impact on a substantial> number of small entities. This rule will facilitate the hiring of a> limited number of nonimmigrant nurses for a temporary period of time to> work in facilities serving health care professional shortage areas.> These nurses are not considered small entities as that term is defined> in 5 U.S.C. 601(6).> > 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 Fairness 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> 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. Accordingly, this regulation has been submitted to the Office> of Management and Budget (OMB) for review.> > Executive Order 13132> > This regulation 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 interim rule meets the applicable standards set forth in> sections 3(a) and 3((2) of Executive Order 12988.> > Paperwork Reduction Act> > The information collection requirement of Form I-129 contained in> this rule previously was approved for use by the Office of Management> and Budget (OMB). The OMB control number for this collection is 1115-> 0168.> This interim rule permits certain hospital facilities to file> petitions on behalf of nonimmigrant registered nurses to work in> underserved areas. In addition to the Form I-129, the petitioning> facilities also must submit other documentation, including a current> copy of the DOL's notice of acceptance of the filing of the facility's> attestation on Form ETA 9081; a statement describing any limitations> which the laws of the state or jurisdiction of intended employment> place on the alien's services; and evidence that the alien(s) named on> the petition meets the definition of a registered nurse as defined at 8> CFR 214.2(h)(3)(i)(A), and satisfies the requirements for an H-1C> nonimmigrant in section 212(m)(1) of the Act. This additional> documentation is considered an information collection.> Accordingly, the Service has submitted an information collection> > [[Page 31112]]> > request to the Office of Management and Budget (OMB) for emergency> review and clearance in accordance with the Paperwork Reduction Act of> 1995 (44 U.S.C. 3501 et seq.). Emergency review and approval has been> granted by OMB. The emergency approval is only valid for 180 days.> All comments and suggestions, or questions regarding additional> information, to include obtaining a copy of the proposed information> collection instrument with instructions, should be directed to the> Immigration and Naturalization Service, Policy Directives and> Instructions Branch, 425 I Street, NW., Suite 4034, Washington, DC> 20536; Attention: A. Sloan, Director, (202) 514-3291.> We request written comments and suggestions from the public and> affected agencies concerning the proposed collection of information.> Any comments on the information collection must be submitted on or> before August 10, 2001. Your comments should address one or more of the> following four 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 the 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.> > Overview of This Information Collection> > (1) Type of information collection: New.> (2) Title of Form/Collection: Petitioning requirements for H-1C> nonimmigrant classification.> (3) Agency form number, if any, and the applicable component of the> Department of Justice sponsoring the collection: No form number (File> number OMB-26), Immigration and Naturalization Service.> (4) Affected public who will be asked or required to respond, as> well as a brief abstract: Individuals or households. Section> 101(a)(15)(H)(i)© of Act allows petitioning hospitals to import> registered nurses to work at those hospitals as nonimmigrants. The> information collection is necessary in order for the Service to make a> determination that the eligibility requirements and conditions are met> regarding the nurse/beneficiary.> (5) An estimate of the total number of respondents and the amount> of time estimated for an average respondent to respond: 1,000> respondents at 2 hours per response.> (6) An estimate of the total of public burden (in hours) associated> with the collection: Approximately 4,000 burden hours.> If additional information is required contact A. Sloan,> Director, (202) 514-3291.> > List of Subjects> > 8 CFR Part 214> > Administrative practice and procedure, Aliens, Employment, Foreign> officials, Health professions, Reporting and recordkeeping> requirements, Students.> > 8 CFR Part 248> > Aliens, Reporting and recordkeeping requirements.> > 8 CFR Part 299> > Immigration, Reporting and recordkeeping requirements.> > Accordingly, chapter I of title 8 of the Code of Federal> Regulations is amended as follows:> > PART 214--NONIMMIGRANT CLASSES> > 1. The authority citation for part 214 continues to read as> follows:> > Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,> 1281, 1282; 8 CFR Part 2.> > > 2. Section 214.1 is amended by:> a. Removing the reference ``101(a)(15)(H)(i)(A)'' and ``H-1A'' from> the table in paragraph (a)(2);> b. Adding the reference ``101(a)(15)(H)(i)©'' and ``H-1C'' in> proper numerical sequence, to the table in paragraph (a)(2), and by> c. Removing the reference ``H-1A,'' in paragraph ©(1) first> sentence.> > > Sec. 214.1 Requirements for admission, extension, and maintenance of> status.> > (a) * * *> (2) * * *> > ------------------------------------------------------------------------> Section Designation> ------------------------------------------------------------------------> > * * * * *> 101 (a) (15) (H) (I) ©................. H-1C> > * * * * *> ------------------------------------------------------------------------> > Sec. 214.2 [Amended]> > 3. Section 214.2 is amended by revising the term ``H-1A'' to read> ``H-1C'' wherever that term appears in the following paragraphs:> a. Paragraph (h)(1)(i),> b. Paragraph (h)(2)(i)(D),> c. Paragraph (h)(2)(i)(E),> d. Paragraph (h)(3)(iii) introductory text,> e. Paragraphs (h)(3)(v)( and (h)(3)(v)©, and> f. Paragraphs (h)(4)(v)(A), and (h)(4)(v)(D).> > 4. Section 214.2 is amended by revising the reference ``H-1A'' to> read ``H-1C'' in the paragraph heading for paragraphs (h)(3) and> (h)(4)(v)(D).> > 5. Section 214.2 is further amended by:> a. Revising the reference ``101(a)(15)(H)(i)(a)'' to read> ``101(a)(15)(H)(i)©'' in paragraph (h)(1)(i) second sentence;> b. Revising paragraph (h)(1)(ii)(A);> c. Revising paragraph (h)(2)(i)(A);> d. Revising the term ``beneficiary's'' to read ``alien's'' in> paragraph (h)(2)(i)(E);> e. Revising paragraph (h)(2)(ii);> f. Revising paragraphs (h)(3)(i)(A), (h)(3)(i)(, and> (h)(3)(i)(D);> g. Removing and reserving paragraph (h)(3)(ii);> h. Removing the term ``or Canada'' in paragraph (h)(3)(iii)(A);> i. Revising paragraph (h)(3)(iii)(;> j. Revising paragraph (h)(3)(iv);> k. Revising paragraphs (h)(3)(v)(A) and (h)(3)(v)(;> l. Removing paragraph (h)(3)(v)(D);> m. Revising paragraph (h)(3)(vi)(A);> n. Adding a new paragraph (h)(8)(i)(E);> o. Revising paragraph (h)(8)(ii)(A);> p. Adding a new paragraph (h)(8)(ii)(F);> q. Adding a new paragraph (h)(9)(iii)(D);> r. Revising paragraph (h)(13)(ii);> s. Revising the reference ``(h)(13)(ii)'' to read ``(h)(13)(iii)'',> and by removing the term ``H-1A,'' in paragraph (h)(13)(v);> t. Revising paragraph (h)(15)(ii)(A); and by> u. Revising paragraph (h)(16)(i), to read as follows:> > > Sec. 214.2 Special requirements for admission, extension, and> maintenance of status.> > * * * * *> (h) * * *> (1) * * *> (ii) * * *> (A) An H-1C classification applies to an alien who is coming> temporarily to the United States to perform services as> > [[Page 31113]]> > a registered nurse, meets the requirements of section 212(m)(1) of the> Act, and will perform services at a facility (as defined at section> 212(m)(6) of the Act) for which the Secretary of Labor has determined> and certified to the Attorney General that an unexpired attestation is> on file and in effect under section 212(m)(2) of the Act. This> classification will expire 4 years from June 11, 2001.> * * * * *> (2) * * *> (i) * * *> (A) General. A United States employer seeking to classify an alien> as an H-1B, H-2A, H-2B, or H-3 temporary employee shall file a petition> on Form I-129, Petition for Nonimmigrant Worker, only with the service> center which has jurisdiction in the area where the alien will perform> services, or receive training, even in emergent situations, except as> provided in this section. A United States employer seeking to classify> an alien as an H-1C nonimmigrant registered nurse shall file a petition> on Form I-129 at the Vermont Service Center. Petitions in Guam and the> Virgin Islands, and petitions involving special filing situations as> determined by Service Headquarters, shall be filed with the local> Service office or a designated Service office. The petitioner may> submit a legible photocopy of a document in support of the visa> petition in lieu of the original document. However, the original> document shall be submitted if requested by the Service.> * * * * *> (ii) Multiple beneficiaries. More than one beneficiary may be> included in an H-1C, H-2A, H-2B, or H-3 petition if the beneficiaries> will be performing the same service, or receiving the same training,> for the same period of time, and in the same location> (3) * * *> (i) * * *> (A) For purposes of H-1C classification, the term ``registered> nurse'' means a person who is or will be authorized by a State Board of> Nursing to engage in registered nurse practice in a state or U.S.> territory or possession, and who is or will be practicing at a facility> which provides health care services.> ( A United States employer which provides health care services is> referred to as a facility. A facility may file an H-1C petition for an> alien nurse to perform the services of a registered nurse, if the> facility meets the eligibility standards of 20 CFR 655.1111 and the> other requirements of the Department of Labor's regulations in 20 CFR> part 655, subpart L.> * * * * *> (D) A petition or application for change of status for an H-1C> nurse may be filed and adjudicated only at the Vermont Service Center.> (ii) [Reserved]> (iii) * * *> ( Has passed the examination given by the Commission on Graduates> of Foreign Nursing Schools (CGFNS), or has obtained a full and> unrestricted (permanent) license to practice as a registered nurse in> the state of intended employment, or has obtained a full and> unrestricted (permanent) license in any state or territory of the> United States and received temporary authorization to practice as a> registered nurse in the state of intended employment; and> * * * * *> (iv) Petitioner requirements. The petitioning facility shall submit> the following with an H-1C petition:> (A) A current copy of the DOL's notice of acceptance of the filing> of its attestation on Form ETA 9081;> ( A statement describing any limitations which the laws of the> state or jurisdiction of intended employment place on the alien's> services; and> © Evidence that the alien(s) named on the petition meets the> definition of a registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A),> and satisfies the requirements contained in section 212(m)(1) of the> Act.> (v) Licensure requirements.> (A) A nurse who is granted H-1C classification based on passage of> the CGFNS examination must, upon admission to the United States, be> able to obtain temporary licensure or other temporary authorization to> practice as a registered nurse from the State Board of Nursing in the> state of intended employment.> ( An alien who was admitted as an H-1C nonimmigrant on the basis> of a temporary license or authorization to practice as a registered> nurse must comply with the licensing requirements for registered nurses> in the state of intended employment. An alien admitted as an H-1C> nonimmigrant is required to obtain a full and unrestricted license if> required by the state of intended employment. The Service must be> notified pursuant to Sec. 214.2(h)(11) when an H-1C nurse is no longer> licensed as a registered nurse in the state of intended employment.> * * * * *> (vi) * * *> (A) If the Secretary of Labor notifies the Service that a facility> which employs H-1C nonimmigrant nurses has failed to meet a condition> in its attestation, or that there was a misrepresentation of a material> fact in the attestation, the Service shall not approve petitions for H-> 1C nonimmigrant nurses to be employed by the facility for a period of> at least 1 year from the date of receipt of such notice. The Secretary> of Labor shall make a recommendation with respect to the length of> debarment. If the Secretary of Labor recommends a longer period of> debarment, the Service will give considerable weight to that> recommendation.> * * * * *> (8) * * *> (i) * * *> (E) Aliens classified as H-1C nonimmigrants may not exceed 500 in a> fiscal year.> (ii) * * *> (A) Each alien issued a visa or otherwise provided nonimmigrant> status under section 101(a)(15)(H)(i)(, 101(a)(15)(H)(i)©, or> 101(a)(15)(H)(ii) of the Act shall be counted for purposes of the> numerical limit. Requests for petition extension or extension of an> alien's stay shall not be counted for the purpose of the numerical> limit. The spouse and children of principal aliens classified as H-4> nonimmigrants shall not be counted against the numerical limit.> * * * * *> (F) The 500 H-1C nonimmigrant visas issued each fiscal year shall> be allocated in the following manner:> (1) For each fiscal year, the number of visas issued to the states> of California, Florida, Illinois, Michigan, New York, Ohio,> Pennsylvania, and Texas shall not exceed 50 each (except as provided> for in paragraph (h)(8)(ii)(F)(3) of this section).> (2) For each fiscal year, the number of visas issued to the states> not listed in paragraph (h)(8)(ii)(F)(1) of this section shall not> exceed 25 each (except as provided for in paragraph (h)(8)(ii)(F)(3) of> this section).> (3) If the total number of visas available during the first three> quarters of a fiscal year exceeds the number of approvable H-1C> petitions during those quarters, visas may be issued during the last> quarter of the fiscal year to nurses who will be working in a state> whose cap has already been reached for that fiscal year.> (4) When an approved H-1C petition is not used because the alien(s)> does not obtain H-1C classification, e.g., the alien is never admitted> to the United States, or the alien never worked for the facility, the> facility must notify the Service according to the instructions> > [[Page 31114]]> > contained in paragraph (h)(11)(ii) of this section. The Service will> subtract H-1C petitions approved in the current fiscal year that are> later revoked from the total count of approved H-1C petitions, provided> that the alien never commenced employment with the facility.> (5) If the number of alien nurses included in an H-1C petition> exceeds the number available for the remainder of a fiscal year, the> Service shall approve the petition for the beneficiaries to the> allowable amount in the order that they are listed on the petition. The> remaining beneficiaries will be considered for approval in the> subsequent fiscal year.> (6) Once the 500 cap has been reached, the Service will reject any> new petitions subsequently filed requesting a work start date prior to> the first day of the next fiscal year.> (9) * * *> (iii) * * *> (D) H-1C petition for a registered nurse. An approved petition for> an alien classified under section 101(a)(15)(H)(i)© of the Act shall> be valid for a period of 3 years.> * * * * *> (13) * * *> (ii) H-1C limitation on admission. The maximum period of admission> for an H-1C nonimmigrant alien is 3 years. The maximum period of> admission for an H-1C alien begins on the date the H-1C alien is> admitted to the United and ends on the third anniversary of the alien's> admission date. Periods of time spent out of the United States for> business or personal reasons during the validity period of the H-1C> petition count towards the alien's maximum period of admission. When an> H-1C alien has reached the 3-year maximum period of admission, the H-1C> alien is no longer eligible for admission to the United States as an H-> 1C nonimmigrant alien.> * * * * *> (15) * * *> (ii) * * *> (A) H-1C extension of stay. The maximum period of admission for an> H-1C alien is 3 years. An H-1C alien who was initially admitted to the> United States for less than 3 years may receive an extension of stay up> to the third anniversary date of his or her initial admission. An H-1C> nonimmigrant may not receive an extension of stay beyond the third> anniversary date of his or her initial admission to the United States.> * * * * *> (16) * * *> (i) H-1B or H-1C classification. The approval of a permanent labor> certification or the filing of a preference petition for an alien shall> not be a basis for denying an H-1C or H-1B petition or a request to> extend such a petition, or the alien's admission, change of status, or> extension of stay. The alien may legitimately come to the United States> for a temporary period as an H-1C or H-1B nonimmigrant and depart> voluntarily at the end of his or her authorized stay and, at the same> time, lawfully seek to become a permanent resident of the United> States.> * * * * *> > PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION> > 6. The authority citation for part 248 continues to read as> follows:> > Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR Part 2.> > > Sec. 248.3 [Amended]> > 7. Section 248.3 is amended by revising the reference ``H-1A'' to> read ``H-1C'' in paragraph (a) first sentence.> > PART 299--IMMIGRATION FORMS> > 8. The authority citation for part 299 continues to read as> follows:> > Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.> > 9. Section 299.1 is amended in the table by revising the entry for> Form ``I-129'' to read as follows:> > > Sec. 299.1 Prescribed forms.> > * * * * *> > ------------------------------------------------------------------------> Edition> Form No. date Title> ------------------------------------------------------------------------> > * * * * *> I-129....................... 12-11-91 Petition for Nonimmigrant> Worker.> > * * * * *> ------------------------------------------------------------------------> > > Dated: June 5, 2001.> D. Rooney,> Acting Commissioner, Immigration and Naturalization Service.> [FR Doc. 01-14538 Filed 6-8-01; 8:45 am]> BILLING CODE 4410-10-U> ========================================================> > >