INS Proposed Final Rule - Further Restrictive Credentialing Requirements
For Certain Health Care Workers
Frieda Wong & Bernard P. Wolfsdorf
The crisis arising from the critical nationwide shortage of health care workers has increased efforts to recruit international health care workers. The single most important issue in connection with obtaining work permits and immigration benefits for health care workers is the supernumerary credentialing requirements for foreign health care workers in certain occupations. On October 11, 2002, the INS proposed a final rule to implement Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Specifically, the proposed rule expands the certification requirements to nonimmigrant health care workers hitherto exempt and establishes a procedure to add credentialing organizations. The proposed INS rule will make it even more difficult to obtain nonimmigrant visas for otherwise qualified international health care workers many of whom have been able to work in the United States based on interim or full U.S. state licensure or licensure in their home countries.
By way of background, Section 343 of IIRIRA created new grounds for inadmissibility for any uncertified immigrant or nonimmigrant alien who seeks to enter the United States to perform labor as a health care worker. The affected professionals are nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians, and physician assistants. Codified in section 212(a)(5)(C) of the Immigration and Nationality Act (INA), these health care professionals are deemed inadmissible for the purpose of performing labor as a health care worker in the affected occupations, unless they first obtain a certificate verifying that their education, training, licensing, experience, and English competency are comparable to that of American health care workers. The Service has implemented these certification requirements for immigrant health care workers by way of three interim rules. For affected health care workers seeking admission as nonimmigrants, the INS and DOS have continued to waive the certification requirements whereby nonimmigrants are admitted and extensions of stay are granted on an annual basis.
The Service now seeks to adopt the proposed final rule implementing Section 343 which will expand and amend the three interim regulations to: 1) apply the certification requirements to all nonimmigrant affected health care workers, including those who seek a change of status; and 2) establish procedures for authorizing additional organizations to issue certificates to health care workers.
Credentialing - The Way It Is Today
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 health care workers to immigrate through employment. In 1998, following a lawsuit filed by the American Immigration Law Foundation (AILF), which sought to compel 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. And finally, pursuant to a settlement agreement in litigation filed by AILF for the remaining four categories of health care workers, INS issued the third set of interim regulations on March 19, 2001, effectively covering all seven affected health care 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), were granted temporary authorization to issue the VisaScreen Certificates. Specifically, the CGFNS is sanctioned to provide certification for all seven groups of health care applicants, while NBCOT is only authorized to issue certificates for occupational therapists and FCCPT is only authorized to certify physical therapists. There are no exemptions from the credentialing requirement for foreign-born immigrant health care workers. 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.
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. Even native English speakers or graduates from universities where the mode of instruction is in English are not exempt from taking the English language test. The only group exempted, are health care workers educated in the United States, the United Kingdom, Ireland, New Zealand, Australia, and Canada (except Quebec).
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.
The Proposed Final Rule
1) Expansion of Certification Requirement to Nonimmigrant Health care Workers
The proposed rule seeks to implement a comprehensive process for certification of both immigrant and nonimmigrant foreign health care workers who seek admission to perform labor in the affected occupations. The proposed final rule applies to both immigrants seeking immigrant visas overseas as well as those applying for adjustment of status in the United States. Similarly, for nonimmigrant health care workers, the certification requirements will now apply to all who seek admission or who have obtained nonimmigrant status (such as H, J, O, and TN) to perform labor in the affected occupations. The certification requirement is met when the alien presents the VisaScreen Certificate to a consular officer at the time of visa issuance or to the Service at the time of adjustment of status. For aliens who have already entered the United States under a waiver of inadmissibility under section 212(d)(3) of the Act, they will be required to present the certificate at time of application for extension of stay or admission into the United States, whichever comes first.
The proposed rule does stipulate exceptions for nonimmigrants who seek admission to receive training in the affected occupations. These include for instance, F-1 nonimmigrants receiving practical training and J-1 nonimmigrants undertaking a training program. Finally, the proposed final rule reiterates that the certification requirements do not apply to derivative aliens even if they were to perform labor in the affected occupations. The rationale being that their primary purpose in the United States is to accompany the principal alien and not to perform labor in health care.
2) Certification Applies to both State-Licensed Foreign Health Care Workers and Foreign Health Care Workers Educated in the United States
The proposed final rule blindly endorses the interim regulations and imposes the certification requirements on both foreign health care workers who have been trained and educated in the United States or who are in possession of a valid, unrestricted state license. While there is some justification that the State licensure screening process alone does not satisfy the additional English language competency and comparable training prongs of Section 343 - it appears that there is no rational basis for requiring U.S. trained and educated foreign health care workers to comply with the certification requirements. The Service meekly concluded that since there is no explicit congressional intent to exempt such aliens from the certification requirements, they will therefore continue to require blanket statutory compliance for such aliens even though they would satisfy the comparable training and English competency certification requirements.
3) English Language Proficiency Test
The proposed rule also continues to require foreign health care workers to establish competency in oral and written English by meeting specified scores on one or more nationally recognized, standardized testing services. Currently, the four testing services are the Educational Testing Service (ETS), the Michigan English Language Assessment Battery (MELAB), the Test of English in International Communication (TOEIC) Service International, and the International English Language Testing System (IELTS). Graduates of health care programs in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States will continue to be exempt from the English language proficiency requirement.
4) Procedures for Additional Organizations to Issue VisaScreen Certificates
Finally, the proposed rule sets up a procedure for additional organizations to seek authorization to issue VisaScreen Certificates by submitting Form I-905, Application for Authorization for centralized filing with the Nebraska Service Center, along with filing fee of $230 and information verifying that the organizations meet the standard for issuing credentialing in each health care occupation. If denied, the organizations may appeal to the Administrative Appeals Office. Additional organizations approved for credentialing will be published via interim rule in the Federal Register. The Service plans to make available a list of credentialing organizations on its website: http://www.ins.usdoj.gov.
More importantly, the rule proposes to periodically review the performance of certifying organizations and to implement reauthorizations every five years. By creating standardized criteria for the credentialing agencies and employing periodic reviews, the proposed rule intends to create uniformity in the adjudication process and issuance of certificates. Additionally, the reauthorization process provides some recourse for aliens who are currently hindered from seeking immigration benefits as a result of the lengthy processing time and bureaucracy of credentialing organizations. The Service may decertify credentialing organizations for failure to meet credentialing standards. By allowing for more than one organization to issue certificates for the same health care occupation, the Service hopes to address the severe delay currently associated with issuance of VisaScreen Certificates.
The proposed final rules implementing Section 343 came more than six years after the passage of IIRIRA and even then as a result of threatened litigation. During this time, there has been tremendous confusion with regards to the Section 343 credentialing requirements for health care workers and substantial delay due to INS' piecemeal efforts at promulgating interim rules. Congress' attempt to harmonize educational and training credentials between foreign born and domestic health care workers has resulted in a costly, redundant credentialing hurdle that has exacerbated the ongoing crisis of shortage of nurses and allied health care workers. The proposed final rule continues to impose the illogical certification requirements on foreign health care workers and even applies to persons who are educated in the United States. Nonimmigrant health care workers will now be subjected to the substantial paperwork delay at credentialing organizations. This is despite the fact that they already possess precisely the same licensing and state registration requirements as other U.S. health care workers. It is certain that the proposed scheme will exacerbate the crisis at a time when the most vulnerable of our population are desperately in need of qualified health care workers. It is vital that Congress re-evaluates its knee-jerk reaction to allegations of unqualified health care workers and alleviates this national crisis by scrapping the entire provision and allowing for the timely recruitment of qualified health care workers.
 Certificates for Certain Health care Workers, 67 FR 63313 (Oct. 11, 2002).
 The Service and the DOS exercised their discretion under section 212(d)(3) of the Act to waive the foreign health care worker certification requirement until promulgation of the final regulations.
 Interim Procedures for Certain Health care Workers, 63 FR 55007 (Oct. 14, 1998) (codified at 8 CFR 212.15 and 245.14) (the first Interim Rule).
 Additional Authorization to Issue Certificates for Foreign Health care Workers, 64 FR 23174 (April 30, 1999) (amending § 212.15) (the second Interim Rule).
 Additional Authorization to Issue Certificates for Foreign Health care Workers; Speech Language Pathologists and Audiologists, Medical Technologists and Technicians, and Physician Assistants, 66 FR 3440 (Jan. 16, 2001) (amending § 212.15) (the third Interim Rule).
About The Authors
Frieda Wong is a supervising attorney at Wolfsdorf Associates who practices exclusively in the area of immigration and nationality law. She is the resident attorney at the firm’s New York office. Ms. Wong completed her undergraduate studies from the University of Wisconsin in Madison and received her J.D. from Northeastern University School of Law. She can be contacted 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. He currently serves on AILA’s Board of Governors and on the AILA INS Enforcement Committee. He has previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee and the State Department Liaison Committee. With offices in New York, Torrance and Pacific Palisades, the firm assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at Bernard@wolfsdorf.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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