Nurses and Allied Healthcare Workers - IIRIRA Section 343 -- VisaScreen and Updates (Part I)
The issue of visa credentialing for the seven groups of allied healthcare workers, including registered nurses, is once again a hot topic. At a time where the 85-and-older are the fastest growing segment of our population, the demand for healthcare workers, in particular registered nurses, has never been higher. For example, Governor Davis of California recently announced a first of its kind, landmark nurse-patient staffing proposal as part of the state's $60 million Nurse Workforce Initiative. The proposal requires California acute care hospitals to meet or exceed the minimum one nurse to six patients ratio. This proposal is expected to result in the hiring of up to an additional 5,000 licensed nurses within the first year alone.
The nationwide shortage of healthcare professionals is also evident in rural health care practice. On February 27, 2002, the Department of Agriculture (USDA) decided to suspend its participation from the J-1 Waiver Program for International Medical Graduates Physicians. The USDA decision to withdraw from the program prompted Texas and California, two states which previously did not participate in the State 20 program, to begin participating. The Conrad State 20 Program allows each state to sponsor up to 20 physicians a year for waivers of the two-year home residency requirement. Following intense media attention focused on the rural health care crisis, the USDA has decided to temporarily re-instate its J-1 Waiver Program and act as an Interested Government Agency (IGA) to process the 86 applications it had pending when the program was halted. Moreover, in an effort to ensure that physicians are available to provide service to medically under-served areas, the White House has agreed to re-evaluate the USDA program with the possibility that it will be re-launched.
As the crisis arising from a critical nationwide shortage of certain healthcare workers worsens, there is increasing pressure for healthcare providers to recruit foreign healthcare workers. Many of these institutions continue to try and recruit locally, resulting in remarkably improved salaries and benefits for many healthcare workers. The single most important issue in connection with obtaining immigration benefits for healthcare workers is the supernumerary credentialing requirements for affected foreign healthcare workers. Detailed below is a chart summarizing the credentialing requirement introduced by Section 343 of IIRIRA for the seven allied healthcare professions.
Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new ground of inadmissibility for any uncertified immigrant or nonimmigrant alien who seeks to enter the United States to perform labor as a healthcare worker. The affected professionals are nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians, and physician assistants. Codified into section 212(a)(5)(C) of the Immigration and Nationality Act (INA), these healthcare professionals cannot seek immigrant visas or adjust their status to permanent residents unless they obtain a certificate that verifies their education, training, licensing, experience, and English competency are comparable to American healthcare workers.
For more than two years after the effective date of IIRIRA, the INS failed to issue regulations governing the Section 343 credentialing requirements (commonly known as VisaScreen Procedure). As a result, between September 30, 1996 and December 14, 1998 (effective date of the first interim regulations), it was impossible for affected healthcare workers to immigrate through employment. In 1998, following a lawsuit filed by the American Immigration Law Foundation (AILF) compelling the INS to issue regulations implementing Section 343, the first series of interim regulations for nurses and occupational therapists were published. The second interim rule covering physical therapists was published in 1999. Finally, pursuant to a settlement agreement in litigation filed by AILF for the remaining four categories of healthcare workers, INS issued the third set of interim regulations on March 19, 2001, covering all seven affected healthcare occupations.
Pursuant to these interim regulations, three organizations, the Commission on Graduates of Foreign Nursing Schools (CGFNS), the National Board for Certification in Occupational Therapy (NBCOT), and the Foreign Credentialing Commission on Physical Therapists (FCCPT), have been designated to provide the VisaScreen certificates. CGFNS may provide certification for all seven groups of healthcare applicants, while NBCOT is only authorized to issue certificates for occupational therapists and FCCPT is only authorized to certify physical therapists. Additionally, these rules also specify the appropriate scores on one or more of the nationally recognized, standardized assessments of English language proficiency for each profession to meet the Section 343 requirements. There are no exceptions from the credentialing requirement. Even someone who was educated, and is currently licensed and employed in the U.S. must obtain the certification verifying his or her education, training, license, and experience.
For affected healthcare workers seeking admission as nonimmigrants, the INS and DOS have continued to waive the certification requirement. Until a final rule implementing Section 343 is published, nonimmigrant healthcare workers are admitted and extensions are authorized in yearly increments. Those aliens coming to the United States to perform services in non-clinical health care occupations such as medical professors, teachers, researchers, managers of health care facilities, and insurance consultants are not required to seek a certificate. Aliens who have applied for immigrant benefits on the basis of a family sponsored petition, regardless of their ultimate professions, are also exempt.
It is important not to confuse the VisaScreen procedure (Section 343 Certificate) with other professional licensure or state certification requirements. The VisaScreen procedure only relates to the Section 343 requirements of IIRIRA. There are usually different and, in some cases, additional state or professional licensure requirements in order to practice in the occupation. For instance, nurses who have passed the NCLEX-RN examination and hold a full and unrestricted state license must still obtain a Section 343 VisaScreen certificate in order to overcome the immigration ground of excludability to be eligible for a green card.
About The Author
Frieda Wong is a supervising attorney at Wolfsdorf Associates in Los Angeles, and practices exclusively in the area of immigration and nationality law. Ms. Wong graduated from the University of Wisconsin in Madison with a B.A. in Business Administration, and received her J.D. from Northeastern University School of Law. If you have any questions concerning this article, please contact Frieda Wong at firstname.lastname@example.org or 1(800)-visa-law.
Bernard P. Wolfsdorf practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell's Pre-eminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. Mr. Wolfsdorf has served on numerous AILA liaison committees, including the AILA/CSC Liaison Committee and the State Department Liaison Committee, and is currently serving on the American Bar Association's Coordinating Committee on Immigration Law. His office assists applicants with consular visa interviews and he is a frequent lecturer on consular processing.