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The ABCs of Immigration - Inadmissibility - Coming to Work Without a Labor Certification
by Greg Siskind and Amy Ballentine

Many immigrants who are coming to the US to work are inadmissible unless the Department of Labor has issued a certification stating that their employment will not adversely effect the wages and working conditions of US workers and that there are no willing, able and qualified workers available to perform the job. Those immigrating in the first employment based preference (extraordinary ability aliens, outstanding professors and researchers and certain executives and managers) are not subject to the labor certification requirement, nor are those in the second preference who establish that it is in the national interest to waive the labor certification requirement. Those who are seeking to immigrate as family members, refugees and asylees are exempt from the labor certification requirement, even though they will most likely work after entering the US. The requirements and procedures for labor certifications are discussed at http://www.visalaw.com/00nov3/12nov300.html and http://www.visalaw.com/00nov4/12nov400.html. While most labor certifications are employer specific, that is, valid only if the employer who filed the petition will be employing the immigrant. There is an exception, however, for professional athletes. Since 1996, a labor certification filed by one team can still be used if the alien has changed to a new team in the same sport. To qualify as a professional athlete, the alien must be employed by a team in a league with at least five other teams whose combined revenue exceeds $10 million a year. Those who are deemed “unqualified physicians” are inadmissible. Whether a doctor is an unqualified physician has nothing to do with their training or professional competence, but instead concerns whether they have passed certain examinations. This rule applies only to graduates of foreign medical schools, not to noncitizens who have attended medical school in the US. To be eligible for admission, the foreign medical graduate must take and pass the United States Medical Licensing Examination (USMLE) and either the Educational Commission of Foreign Medical Graduates (ECFMG) English Test or the Test of English as a Foreign Language (TOEFL). After passing these exams, the doctor will be given a certificate from the ECFMG, a necessary piece of evidence in proving that he or she is qualified to work in the US. It is also required for doctors to be admitted for medical training programs and to be approved for a labor certification or a national interest waiver. These requirements do not apply to doctors seeking to immigrate as a family member, or to physicians not engaged in treating patients (such as researchers). Other health care workers also face restrictions on their admission. Registered nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists and technicians and physician assistants all require special certification. Many of the regulations needed to implement this law have not yet been promulgated. Currently, regulations are in place for only registered nurses, occupational therapists and physical therapists. Unlike the USMLE, this process does not involve an examination, but instead an evaluation of the applicant’s credentials. For nurses, this is done by the Commission on Graduates of Foreign Nursing Schools, for occupational therapists by the National Board for Certification in Occupational Therapy, and for physical therapists by the Foreign Credentialing Commission on Physical Therapy. CGFNS may also issue certifications for occupational and physical therapists. In addition to the certification requirement, health care workers must pass an English language test. This requirement does not apply to graduates of schools in the US, Australia, Canada (except Quebec), Ireland, New Zealand and the United Kingdom. The requirement applies even if the person graduated from a school where English was the language of instruction.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com



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