DOS Cable on NIV Fee Waivers for Charitable Workers

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Unclas State 195265

E.O. 12958: N/A
TAGS: CVIS
Subject: Final Rule Re NIV Fee Waivers

Reftel: State 174376

Summary: The final regulation on waiving fees for charitable workers was published and effective on October Second. It is essentially a codified form of the material in Reftel. Its interpretation, discussed in the "Supplementary Remarks" section of the regulatory order, warrants additional comment.

1. Only one organization submitted a comment on the interim rule, published May 1, 1998. It voiced concerns primarily about (a) the Department's emphasis on the "poor and needy," and (b) the equation of foreign institutions with those given tax-exempt status in the United States in countries which have laws governing charitable institutions.

2. The commenter worried that requiring that the charitable services be for the poor and needy would prevent the waiver from being available for health-care givers who serve in hospitals in which there are both charitable and paying patients. The Department believes the law is clear in its language and intent: "waive or reduce the fee for any alien coming to the United States primarily for direct service or assistance to the poor or otherwise needy individuals."

3. We recognize, however, that institutions established for the poor and needy might also, from time to time, service those who are not so hampered. We defined this, in the "supplemental remarks" section of the regulatory order, as meaning we would "not disqualify health-care providers working at not-for-profit hospitals established primarily for care of the poor and needy (which also) take in some (not more than 25%) paying patients." This criterion is a necessary protection against potential abuse, as perhaps as many as half the hospitals in the United States are "not-for-profit" but treat relatively few charity patients compared with those who pay. Very few were established primarily for the poor and needy and that is the key factor for a fee waiver for nurses and other health-care workers. What the institution is called, a hospital, a hospice, or a home for the terminally ill, is irrelevant.

4. With respect to determinations about foreign charitable institutions, we amended the interim rule to distinguish between countries which have laws for recognizing charitable institutions and have accorded an organization such a status, and countries that do not have such laws. In the latter, the consular officer must be satisfied that the organization engages in activities and practices that would entitle it to tax-free status as a charity if in the United States.

5. The regulation in its entirety reads: "41.107(c)(2)" The consular officer shall waive the nonimmigrant visa application and issuance fees for an alien who will be engaging in charitable activities for a charitable organization upon the written request of the charitable organization claiming that it will find the fees a financial burden, if the consular officer is satisfied that:

(I) The organization seeking relief from the fees is, if based in the United States, tax-exempt as a charitable organization under the provisions of section 501(c)(3) of the Internal Revenue Service Code (26 U.S.C. 501(c)(3)); if a foreign organization based outside the United States in a country having laws according recognition to charitable institutions, that it establishes that it is recognized as a charitable institution by that government; and if a foreign organization based in a country without such laws, that it is engaged in activities substantially similar to those underlying section 501(c)(3), and

(II) The charitable activities in which the alien will engage are specified and will be a part of, or will be related to and in support of, the organization's provision of services, including but not limited to health care, food and housing, job training, and similar direct services and assistance to the poor and needy, and

(III) The request includes the location of the proposed activities, the number and identifying data of each of the alien(s) who will be applying for visas, and

(IV) The proposed duration of the alien(s)'s temporary stay in the United States is reasonably consistent with the charitable purpose for which the alien(s) seek to enter the United States.

Strobe Talbott