HHS Now Submitting Requests for Waiver of J-1 Exchange Visitor Two-Year Home Residence Requirement

In a recently published interim rule, the Department of Health and Human Services (HHS) has requested waivers of the two-year foreign residence requirement for J-1 Visa holders. Health care facilities and other institutions may now submit requests for waivers of the two-year home country physical presence to HHS for physicians participating in the Exchange Visitor program and wishing to practice in medically underserved areas of the United States.

Part of the U.S Exchange Visitor program enables physicians to come to the U.S. to join graduate medical education programs under the J-1 Visa. Previous to this interim rule, these foreign physicians were required to leave the U.S. after their education and spend at least two years in their home country before seeking permanent residency in the U.S. Waivers were requested by organizations such as the Department of Agriculture and the Appalachian Regional Commission; both organizations sought physicians for medically underserved areas. The Deparment of Agriculture, however, ceased requesting waivers in April 2002.

In lieu of the Department of Agriculture’s decision to cease seeking these waivers, and in congruence with its mission to increase access to medical care for medically underserved Americans, HHS has decided to now submit these waivers for certain Exchange Program physician visitors.

According to HHS regulations, only primary care physicians and general psychiatrists who finished their training less than twelve months prior to the beginning of their employment are eligible for this waiver. Further, the petitioning institution must show that it has, in good faith, attempted to fill the position with a U.S. citizen prior to hiring the foreign physician. The HHS reminds foreign physicians participating in this waiver of the two-year foreign residence requirement to “comply with [all] visa requirements on a timely basis to maintain lawful status.” HHS also suggests foreign physicians begin this waiver process early in their training program to ensure timely processing of the waiver request.

This interim rule went into effect December 19, 2002. Written comments, however, may still be submitted until February 3, 2003. Please address all written comments to: Dr. William R. Steiger, Office of Global Health Affairs, 200 Independence Ave., SW., Room 639-H, Washington, DC 20201.

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INS MEMO CLARIFIES H-1B STATUS FOR SOME NURSING PROFESSIONS

In a memo posted in late November, the Immigration and Naturalization Service (INS) clarified the relationship between registered nurses (RN) and H-1 visa petitions. While RNs typically do not meet the specific requirements for H-1B visa classification, INS notes that aliens in some specialized RN fields may me more likely to be eligible for H-1B classification than others.

According to the INS, “the Service [INS] will approve and H-1B nonimmigrant worker petition filed on behalf of certain foreign nurses if the statutory and regulatory requirements for H-1B classification are met.” H-1B visas are open to individuals in specialty occupations requiring a bachelor’s degree or higher in the field of specialty. INS states that an employer may seek H-1B status for an RN if the petitioning employer can meet the H-1B requirements by showing the following:

1. A bachelor’s degree or higher, or its equivalent;
2. this degree requirement is common to the nursing industry in parallel nursing positions;
3. the petitioning employer typically looks for employees with a bachelor’s degree or higher (or its equivalent) for this type of position; and
4. the nature of the prospective employee’s position is specialized and complex, and the duties performed are typically associated with an individual with a bachelor’s degree or higher, or its equivalent.

The following list of nursing professions will typically be H-1B equivalent, as long as the positions require advanced practice certification:

1. Clinical Nurse Specialists
2. Nurse Practitioners
3. Certified Registered Nurse Anesthetist
4. Certified Nurse-Midwife

Some administrative nursing professions, such as upper level nurse managers, may also be H-1B equivalent.

For more information about this memo, contact the Office of Adjudications of the INS.

DOJ Final rule on Student and Exchange Visitor Information System(SEVIS)

On December 11, the Department of Justice announced the final rule that implemented the Student and Exchange Visitor Information System (SEVIS). SEVIS is an online tracking system that will maintain information about all nonimmigrant foreign students and exchange visitors in the United States. The rule relates to students entering the United States under F-1, M-1 or J-1 visas.

This rule sets a mandatory compliance date of January 30, 2003 for full implementation of SEVIS. On and after this date, all schools authorized to enroll foreign students and exchange visitors will be required to use the Information System to issue SEVIS Form I-20 to new students, and the same form to current students with reportable events.

The final rule also amends certain portions of the proposed rule. These changes are as follows:

· Schools must enter data into SEVIS about students enrolled previous to January 30, 2003 by the deadline date of August 1, 2003.

· If a student’s physical and mailing addresses differ, the school must report both addresses to SEVIS.

· Authorized schools will be enabled to have up to ten designated school officials to enter data into SEVIS (the proposed rule allowed only five).

The final rule also clarifies guidelines related to students taking less than a full course load due to academic or medical reasons, student transfers and optional practical training.

INS Sends Reminder to Males of 18 Countries to Register with the NSEERS

The Immigration and Naturalization Service (INS) is sending a reminder to all males 16 years or older who are citizens or nationals of 18 different countries to register with the INS as part of the National Security Entry-Exit Registration System (NSEERS).

Men 16 years or older who are citizens or nationals of Iran, Iraq, Libya, Sudan or Syria, entered the U.S. as nonimmigrants on or prior to September 10, 2002, and intend to remain in the U.S. up to or after December 16, 2002 are required to register with an INS office on or before December 16, 2002.

Men 16 years or older who are citizens or nationals of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, the United Arab Emirates, or Yemen, entered the U.S. as nonimmigrants on or prior to September 30, 2002, and intend to remain in the U.S. up to or after January 10, 2003 are required to register with an INS office on or before January 10, 2003.

Registration procedures will involve an interview with an INS official. Interviewees will also be photographed and fingerprinted. Citizens and nationals from countries not listed above will soon be required to participate in NSEERS.

U.S. citizens, lawful permanent residents, refugees, asylum applicants and grantees, and diplomats are not required to participate in this registration program.
Any avoidance of these registration procedures by nonimmigrant males who fit the above-stated criteria will be considered a criminal violation and may lead to deportation.