INS Proposed Regulations for Certification of Health Care Workers Heighten Current Shortages
by Ann Pinchak
INS proposed regulations issued October 11, 2002, make it more difficult for facilities to hire and keep sorely needed health care workers.
Nonimmigrant health care workers are currently granted waivers of the certification requirements and admitted for one year with extensions in one-year increments. Individuals seeking U.S. permanent residence to work in the following INS-designated health care professions are required to obtain the VisaScreen certificate before permanent residence can be approved: nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists, medical technicians and physician assistants.
The new proposed rule, published in the Federal Register on October 11, 2002, eliminates the waiver for nonimmigrants, making the VisaScreen certification requirement apply to both immigrant and nonimmigrant beneficiaries.
The proposed regulation also specifies that the following organizations are authorized to issue health care certifications:
The Service will issue interim rules to notify the public of additional credentialing organizations. The Service describes the procedure for additional organizations to apply and qualify to issue certifications, lists standards, and provides for periodic performance review of certifying organizations.
In addition, the proposed regulations specify the English language exemptions and requirements for the certificates as well as list passing scores. The services approved for English testing are the Michigan English Language Assessment Battery (MELAB), Educational Testing Service (ETS), Test of English in International Communication (TOEIC), Service International, and International English Language Testing System (IELTS). The most effective method for testing oral English, the MELAB English oral exam is being eliminated. Graduates from health profession programs in Australia, Canada (except Quebec), Ireland, New Zealand, the U.K. and the U.S. are deemed to have met the English language requirement and do not have to take English language tests. Inexplicably, graduates from health profession programs in Jamaica, Trinidad, Dominica, Tobago, Granada, Guyana, the Bahamas, Barbados, Belize, and other English-speaking countries are not exempt from the English testing requirements.
The proposed regulations will have a major negative impact on U.S. facilities as they seek to sponsor prospective employees in nonimmigrant status and to extend the stays of current nonimmigrants. If a nonimmigrant health care worker working in TN, H-1B, J or O status does not have the required certification, the worker could potentially lose valid nonimmigrant status when the facility applies for an extension of stay on the worker's behalf. Once the regulations are finalized, covered nonimmigrant health care workers will also not be admitted to the U.S. until they have the required valid certificate. Those nonimmigrants currently working in the U.S., who travel abroad temporarily could also be subject to the certification requirement when they seek to re-enter the U.S. Without the VisaScreen, they could be barred from reentering the U.S.
Surprisingly, the Service invites comments on whether the list of health care occupations should be expanded beyond the current list of seven to add other health occupations subject to certification. Unfortunately, for many applicants, the certification process has never worked well. Often, credentialing organizations take many months to issue VisaScreen certificates because of internal delays that are independent of the application itself. Health care workers find it very difficult to contact credentialing organizations. The organizations often ask for documents already in their files and the organizations fail to respond to emergency expedite requests. Many a health care worker has had to postpone immigrant visa interviews abroad while waiting on credentialing organizations to issue the VisaScreen certificate. In theory, inviting competition and implementing standards for service is admirable. In practice, there are few organizations qualified to assess the education, work experience, and licensure of health care workers. Thus the current monopoly of a few certifying organizations will continue without incentive for improvement. Until the organizations can efficiently handle their current responsibilities, no new designated professions for certification should be added.
Further, foreign health care workers trained in the U.S. and those already possessing valid state licenses should not be subject to the entire battery of health care certification requirements. The proposed rule requires these groups to comply with the VisaScreen certification requirement and invites comments on developing a modified or streamlined certification process for these individuals. Often, health care workers find themselves repeating the exact same process for VisaScreen certification that they have completed for state licensing - requesting verification of licenses, work experience, and transcripts from schools. This double verification needlessly slows down the process.
Written comments to the proposed regulations must be received by December 10, 2002. The proposed regulations and INS address for comments may be found at http://www.access.gpo.gov/su_docs/fedreg/a021011c.html. All those who have comments about the system and proposals should write to INS before December 10, 2002.
Ann Pinchak practices immigration law in Houston, Texas with Pinchak & Associates, P.C.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.