[Federal Register Volume 66, Number 112 (Monday, June 11, 2001)]
[Rules and Regulations]
[Pages 31107-31114]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-14538]


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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.

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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: John 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)(C) 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(r) of the Act for certain nurses, which may include some H-
1C nonimmigrant aliens. Section 212(r) of the Act provides that section 
212(a)(5)(C) 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(r) 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(r) for nonimmigrant aliens until publication of a 
final rule implementing both section 343 of IIRIRA and section 212(r) 
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)(B)(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)(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(b)), 
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(b)(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: Richard 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)(c) 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 Richard 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)(C)'' and ``H-1C'' in 
proper numerical sequence, to the table in paragraph (a)(2), and by
    c. Removing the reference ``H-1A,'' in paragraph (c)(1) first 
sentence.


Sec. 214.1  Requirements for admission, extension, and maintenance of 
status.

    (a) * * *
    (2) * * *

------------------------------------------------------------------------
                 Section                            Designation
------------------------------------------------------------------------
 
                 *         *        *        *        *
101 (a) (15) (H) (I) (C).................  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)(B) and (h)(3)(v)(C), 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)(c)'' 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)(B), 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)(B);
    j. Revising paragraph (h)(3)(iv);
    k. Revising paragraphs (h)(3)(v)(A) and (h)(3)(v)(B);
    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.
    (B) 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) * * *
    (B) 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;
    (B) A statement describing any limitations which the laws of the 
state or jurisdiction of intended employment place on the alien's 
services; and
    (C) 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.
    (B) 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)(b), 101(a)(15)(H)(i)(c), 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)(c) 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.
Kevin D. Rooney,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-14538 Filed 6-8-01; 8:45 am]
BILLING CODE 4410-10-U