Visa Screen For Foreign Registered Nurses: Recent Developments
In 1996 Section 343 of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) introduced a new ground of inadmissibility for health-care professionals, including foreign registered nurses. The ground of inadmissibility means that immigration authorities cannot admit foreign registered nurses to the US to practice nursing unless they present evidence of being certified by CGFNS. This requirement applies to foreign registered nurses who enter the US in both immigrant (US permanent residents) and non-immigrant status (TN, H-1B, for example).
On July 25, 2003, the Department of Homeland Security (DHS) implemented Section 343 as a final rule, and codified it into Section 212(a)(5)(C) and Section 212(r) of INA . According to this rule, effective September 23, 2003, foreign registered nurses must obtain a certificate from CGFNS before entering the US. This certificate is usually called a Visa Screen Certificate after the Visa Screen Certification process established by CGFNS for the purpose of the Section 343 certifying requirement. DHS exercised its waiver authority under Section 212(d)(3) of INA to delay application of the Visa Screen requirement to foreign registered nurses in non-immigrant status until July 26, 2004 to allow them adequate time to obtain a Visa Screen Certificate. As a result, starting on July 27, 2004 foreign registered nurses in non-immigrant status will have to present a Visa Screen Certificate every time they cross the US border or extend their status.
Visa Screen certification completely duplicates the CGFNS certification process for foreign registered nurses, similarly requiring verification of a foreign registered nurse's education and foreign licensure. Visa Screen certification also requires foreign registered nurses to take an English language proficiency test and pass either a CGFNS qualifying exam or NCLEX-RN. If a foreign registered nurse obtained a nursing education in English from Australia, Canada (except Quebec), Ireland, New Zealand, South Africa, the UK, and the US, the nurse is exempt from the English language proficiency test requirement, but not from the requirement to pass a CGFNS qualifying exam or NCLEX-RN.
A Visa Screen Certificate, unlike other certification products and services of CGFNS, is valid for five years. Foreign registered nurses must present this Certificate at their country's US Consulate to be admitted to the US as a permanent resident. Alternatively, a foreign registered nurse who resides in the US must present the Visa Screen Certificate before the USCIS approves his/her adjustment of status .
The majority of foreign registered nurses with non-immigrant visas enter the US under the Trade NAFTA (TN) non-immigrant category. The North American Free Trade Agreement (NAFTA) of 1994 created TN-1 and TN-2 categories for qualifying professionals - nationals of Canada and Mexico respectively. NAFTA specifically lists registered nurses as professionals eligible for TN non-immigrant status. The majority of TN nurses are mostly Canadian registered nurses, since very few Mexican registered nurses use this non-immigrant category.
Many Canadian TN-1 nurses feel frustrated about the Visa Screen requirement, because it undermines years of their experience with US hospitals and puts unjustified burden on their ability to practice nursing in the US. The majority of Canadian TN-1 nurses works in the US and enjoys the reciprocity treatment of their Canadian nursing licenses by many US states. The state licensure reciprocity allows them to obtain a US nursing license automatically upon verification of their Canadian licensure status. In other words, reciprocity allows Canadian TN-1 nurses to avoid taking NCLEX-RN.
The federal law requiring TN nurses to obtain a Visa Screen Certificate clearly overrides the state reciprocity rules and forces TN nurses to pass either NCLEX-RN or a CGFNS qualifying exam. TN nurses who obtained their nursing education in English from Australia, Canada (except Quebec), Ireland, New Zealand, South Africa, the UK, and the US are eligible for the alternative Visa Screen certification process that waives the English language proficiency test. However, the alternative Visa Screen certification process still requires TN nurses to pass either a CGFNS qualifying exam or NCLEX-RN.
Since December 2003, US hospitals along the Canadian border that employ many Canadian TN-1 nurses have started a lobbying campaign to postpone the effective date of the Visa Screen requirement for foreign registered nurses in the non-immigrant status. Many US hospitals rely on Canadian TN-1 nurses and fear that nurses will not be able to cross the border and work in the US due to their inability to obtain a Visa Screen Certificate. As a result of hospitals' efforts, the American Hospital Association (AHA), the American Organization of Nurse Executives (AONE), CGFNS, and a bipartisan group of 14 US Senators, including 6 members of the Senate Immigration Subcommittee, petitioned DHS Secretary Tom Ridge to postpone the effective date of the Visa Screen certification regulations for foreign registered nurses in the non-immigrant status until October 1, 2005. The Senators particularly expressed concern about possible disruption in the delivery of health care to the American public along the Canadian border.
The National Council of State Boards of Nursing (NCSBN) also wrote a letter to Secretary Tom Ridge asking for postponement of the Visa Screen requirement implementation. In addition, NCSBN started offering NCLEX-RN for the purpose of the Visa Screen certification to accommodate a growing number of foreign registered nurses who have to pass the test by July 26, 2004. As of the date of this publication, it is not clear how DHS will respond to the above efforts.
About The Author
Zlata Dikaya is an attorney with the firm of Johnson, Murphy, Hubner, McKeon, Wubbenhorst & Appelt, P.C. in Riverdale, NJ who practices exclusively in the area of immigration and nationality law. She holds a joint J.D./MBA degree from Moscow Institute of International Relations in Russia and an LLM degree from Northwestern University School of Law. Zlata can be reached at email@example.com or at 973-835-0100.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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