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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

DHS Final Credentialing Requirements Rule For Nurses and Certain Health Care Workers

by By Frieda Wong & Bernard P. Wolfsdorf

On July 25, 2003, the Bureau of Citizenship and Immigration Services (BCIS) of the Department of Homeland Security (DHS) issued a final rule amending the interim regulations affecting certification requirements for registered nurses and certain health care workers, including physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians, and physician assistants. The final rule now effectively applies the Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)[[1] certification requirements to all nonimmigrant health care workers. In the immigrant context, the effects of Section 343 has been devastating as it took legacy INS almost six years (and the threat of litigation) to issue interim regulations implementing the statute; during which time, it has been impossible for these affected professionals to immigrate to the United States. In the nonimmigrant context, the impact of these new credentialing requirements has thus far been blunted, as an automatic waiver has been available for all nonimmigrants. However, with the final DHS rule, these registered nurses and other health care workers have only one year to complete their credentialing and obtain the necessary certification. July 26, 2004 is the deadline to obtain the requisite credentialing certificate after which nonimmigrant health care workers will be forced to terminate their employment. Since there are many H-1B health care workers including some nurses, as well as Canadian/Mexican nurses with Treaty NAFTA and other O-1 or J-1 visas currently working in the United States - July 26, 2004 is likely to be a critical transitional day with the possibility of a major disruption in an already strained health care system. While much emphasis has been placed on the chronic shortages of nurses - the situation for respiratory therapists, nuclear medicine technicians, cardiac therapists, and other medical technologists has been even more severe. Unfortunately, the final DHS rule blindly adopts many illogical, ill thought-out provisions of the interim regulations. The new rule will make it even more difficult to obtain nonimmigrant visas for otherwise qualified international health care workers many of whom are already working in the United States based on U.S. state licensure or licensure in their home countries. It should be noted that this Section 343 credentialing requirement is supernumary or additional to the current state or national credentialing/licensure already in place. Accordingly, a Canadian nurse may have a full and unrestricted license to practice in both Ontario, Canada and California, but may not be able to continue working on his TN status after July 26, 2004 unless he obtains a VisaScreen certificate.

Section 343

In 1996, Congress enacted section 343 of IIRIRA, which created a new ground of inadmissibility for uncertified immigrant or nonimmigrant alien who seek "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.

Although the certification requirement was effective immediately pursuant to the enactment of IIRIRA for all immigrant health care professionals, it took the DHS almost six years to issue a series of interim rules [2] to establish a framework to implement the Section 343 credentialing requirements (commonly known as VisaScreen Procedure) for immigrant workers. While the credentialing requirements has been in place for several years for immigrant workers, both the DHS and the Department of State (DOS) have continued to waive the certification requirements for nonimmigrants.[3]

The DHS has now issued a final rule implementing section 343 which will expand and amend the three interim regulations. Beginning July 26, 2004, the certification requirements will apply to all seven categories of nonimmigrant health care workers. Since the certification requirements entail numerous time consuming steps, including academic verification by requesting original transcripts from overseas when the candidate may have graduated many years ago, and other bureaucratic hurdles, it is likely that many nonimmigrant health care workers will not be able to obtain the health care certificate before this deadline. Furthermore, one of the English language testing facilities, the Michigan English Language Assessment Battery (MELAB), no longer even provides testing services for foreign health care workers, and other authorized testing services is often conducted at remote locations on limited, specified dates. Additionally, as promulgated in the final rule, the very entities which provide certification, must themselves be reviewed for continued authorization to act as credentialing agencies by January 27, 2004. This puts increased strain on both the certifying organizations and the applicants in an extremely high stake predicament where our nation's precarious health care system is once again challenged.

The key provisions of the final rule are summarized below. It is imperative that ALL nonimmigrant registered nurses as well as the six designated health care workers complete certification before July 26, 2004 if they wish to continue employment in these clinical occupations in the U.S. These noimmigrants workers therefore have less than one year to meet the certification requirement.

1) The Authorized Credentialing Agencies

Only 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 were granted temporary authorization to issue the VisaScreen Certificates. CGFNS has been 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.

Under the final rule, all three organizations will retain interim authority to continue to issue certificates. However, with the exception of CGFNS, both the NBCOT and FCCPT must submit a request for continued authorization before January 27, 2004; but will retain authority to issue certificates in the field of occupational therapy pending final adjudication by the DHS.

2) Aliens Subject to Health Care Certification Requirements

The final rule requires all immigrant and nonimmigrant foreign health care workers who seek admission to perform labor in the affected occupations to meet the certification requirement. For immigrant workers, the requirement is met when they present a Health Care Certificate at the time of immigrant visa issuance or when applying for adjustment of status within the United States. In the final rule, the DHS has continued to exercise its authority under Section 212(d)(3) of the Act to waive the requirement for nonimmigrant health care workers for an additional one-year period. Effective July 26, 2004, all nonimmigrant health care workers, such as H, J, O, and TN visa applicants, must present a valid Health Care Certificate to a consular officer at the time of visa issuance or when applying for change of nonimmigrant visa status within the United States. Similarly, for those who have already entered the United States under a waiver of inadmissibility, they will be required to present the certificate at time of application for extension of stay or at time of admission after July 26, 2004, whichever is earlier. Until July 26, 2004, the admission, extension of stay, or change of status of affected health care workers will be for less than one year from the date of the decision. Moreover, a valid certificate must be presented to the DHS whenever a nonimmigrant seeks admission into the United States. A certification is considered "valid" five years from date of issuance.

Although the DHS did not define each occupation affected by the certification requirement, the final rule does specify that only alien workers, seeking immigration benefits via employment-based petitions to perform labor in a covered health care occupation, are subject to these rules. Hence, aliens coming to the United States to perform services in non-clinical health care occupations such as, but not limited to, medical professors, teachers, researchers, managers of health care facilities, and insurance consultants, are not required to seek a certificate. In contrast, health care workers, such as supervisory physical therapists, who may not typically be involved in hands-on patient care but do have a direct effect on patient care, would still be subject to the certification requirement. Similarly, aliens who have applied for immigrant benefits on the basis of a family sponsored petition, as refugees, or as dependent aliens whose primary purpose is to accompany the principal alien, regardless of their ultimate professions, are also exempt. The final rule also clarifies that nonimmigrant aliens entering the United States to receive training in one of the affected occupations, such as in F-1 optional practical training, H-3, and
J-1 training program, are exempt.

The regulations therefore do accept the premise that the alien's primary purpose in entering is critical to determining whether they are subject to the provisions of section 343 of IIRIRA codified into 212(a)(5)(c).

3) Streamline Certification Process for Aliens Trained in the United States

While the final rule continues to require all currently state licensed nurses and health care workers to meet the credentialing requirements, it has created a "streamline certification process" for foreign health care workers trained in the United States. Under this approach, the educational comparability and English proficiency components of the certification requirement can be met if foreign health care workers present evidence of graduation from certain accredited programs [4] in their respective occupations. However, credentialing is still required to meet the other statutory requirements, such as proof of unencumbered licensing. It is not clear how much more expeditious this "streamline" alternative approach would be but it seems absurd that even U.S. trained and licensed nurses and health care workers must nevertheless obtain VisaScreen certificates merely because they do not hold lawful permanent residence status.

4) English Language Scores for Certification

The final rule 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 English language requirements can be met by taking either a) the three tests offered by the Educational Testing Service (ETS); b) taking the TOEIC test offered by the Test of English in International Communication (TOEIC) Service International in addition to the TSE and the TWE offered by ETS; or c) taking the International English Language Testing System (IELTS) examination.[5] 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. The DHS will notify the public of new approved English testing services by publishing a notice in the Federal Register and will maintain a list of approved tests on its Web site at http://www.immigration.gov. It may be noted that many nurses and international health care graduates have struggled with the format of some of these examinations with as many as 70% of candidates reported being unsuccessful on first attempts. Some candidates did report that the IELTS format is easier to follow.

5) Alternative Certification Process for Nurses

The final rule created an alterative certification process for foreign nurses which essentially adopts the alternative certification process for foreign nurses promulgated by the interim rule implementing the passage of NRDAA, Petitioning Requirements of the H-1C Nonimmigrant Classification under Public Law 106-95, 66 FR 31107 (June 11, 2001).

In lieu of a Section 343 Visa Screen certificate, foreign nurses may present a certified statement from the CGFNS stating that the alien has a valid and unrestricted license as a nurse in the state of intended employment and that such state verifies that the foreign licenses of alien nurses are authentic and unencumbered; that the alien has passed the National Council Licensure Examination (NCLEX); and the alien is a graduate of a nursing program that meets specified requirements.

6) Procedures for Additional Organizations to Issue Health Care Certificates

Finally, in addition to reviewing existing credentialing agencies, the final rule also establishes a procedure for additional organizations to seek authorization to issue Health Care Certificates. Form I-905, Application for Authorization, must be submitted to 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 DHS plans to make available a list of credentialing organizations on its Web site.

More importantly, the rule also sets forth periodical reviews of the performance of certifying organizations and implements reauthorizations every five years. By creating standardized criteria for the credentialing agencies and employing periodic reviews, the 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 DHS 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 DHS hopes to address the severe delay currently associated with issuance of Health Care Certificates.

Conclusion

It has been almost seven years since Congress enacted section 343 of IIRIRA. During this time, there has been widespread chaos and confusion with regards to the credentialing requirements for registered nurses and certain health care workers, the main reason being these rules are hard to comprehend as they are illogical and unnecessary. Each state already have rigid regulatory schemes in place to ensure that health care workers are properly trained and maintain adequate health care and professional standards. This knee jerk reaction to so-called unqualified foreign health care workers ignores the fact that state licensure already ensures that they meet the same standards as U.S. workers. While the physician practice has moved away from creating special examinations for international graduates (the USMLE parts I, II, and III are now standard for all physicians), registered nurses and the six designated health care occupations are still being subjected to rigorous and superfluous credentialing that will add to the chaos already existing in the health care arena. The decision to subject the credentialing organizations themselves to a parallel review for authority to continue issuing certificates, together with the unrealistic one-year time frame for all nonimmigrant workers (many of whom are trained and/or licensed in the United States) to comply with the onerous certification requirements, will almost certainly result in extensive and unnecessary delays in obtaining nonimmigrant visas for state licensed and fully qualified nurses and health care workers.


[1] Certificates for Certain Health Care Workers, 68 FR 43901 (Jul. 25, 2003).

[2]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).

[3] The DHS 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 whereby nonimmigrant health care workers are admitted and extensions of stay are granted in one-year increments.

[4]For Occupational Therapists, graduation from a program accredited by the Accreditation Council for Occupational Therapy Education (ACOTE) of the American Occupational Therapy Association (AOTA). For Physical Therapists, graduation from a program accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) of the American Physical Therapy Association (APTA). And for Speech Language Pathologists and Audiologists, graduation from a Council on Academic Accreditation in Audiology and Speech Language Pathology (CAA) of the American Speech- Language- Hearing Association (ASHA) accredited program.

[5]
  Nurses Occupational Therapists Physical Therapists Speech Language Pathologists Medical Technologists Physician Assistants Medical Technicians
TOEFL   540/207 560/220 560/220 540/207 540/207 540/207 530/197
TWE 4.0 4.5 4.5 4.0 4.0 4.0 4.0
TSE 50 50 50 50 50 50 50
TOEIC   725 N/A N/A 725 725 725 700
TWE 4.0     4.0 4.0 4.0 4.0
TSE 50     50 50 50 50
IELTS   6.5 N/A N/A 6.5 6.5 6.5 6.5
Band 7.0 7.0 7.0 7.0 7.0 7.0 7.0


About The Author

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 fwong@wolfsdorf.com 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 previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee, AILA INS Enforcement Committee, and the State Department Liaison Committee. With offices in New York, Torrance, and Pacific Palisades, the firm also assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at bernard@wolfsdorf.com or 1(800)visa-law.


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