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

Waiver Of The Visa Screen Certification For Qualified TN Healthcare Workers: A Disappointing Surprise Or A Surprising Disappointment?

by Zlata A. Dikaya, Esq.

On July 26, 2004 the Visa Screen certification requirement for 7 categories of foreign healthcare workers went into effect. The following healthcare professions are affected: 1) nurses (licensed practical nurses, licensed vocational nurses, registered nurses), 2) occupational therapists, 3) physical therapists, 4) speech language pathologists and audiologists, 5) medical technologists (clinical laboratory scientists), 6) physician assistants, 7) medical technicians (clinical laboratory assistants).

On July 26, 2004 the Visa Screen certification requirement is waived for TN healthcare workers who were employed in a TN status before September 23, 2003 and held a valid license from a US jurisdiction. The waiver is valid for an additional 1 year, until July 26, 2005. TN non-immigrant category was created under the North American Free Trade Agreement (NAFTA) in 1994. The Trade NAFTA (TN) category has two subcategories, TN-1 and TN-2, for qualifying professionals - nationals of Canada and Mexico respectively.

The Visa Screen certification requirement mandates healthcare workers to be certified by a credentialing organization before they come to the US to work in the healthcare industry. Healthcare workers entering the US in both immigrant and non-immigrant status are subject to this requirement. This mandatory certification is usually called a Visa Screen certification after the Visa Screen certification process established by the Commission of Graduates of Foreign Nursing Schools (CGFNS) for the purpose of healthcare workers' certifying requirement. CGFNS now certifies healthcare workers in all 7 categories. Since 2004, in addition to CGFNS, the National Board for Certification in Occupational Therapy (NBCOT) certifies occupational therapists, and the Foreign Credentialing Commission on Physical Therapy (FCCPT) certifies physical therapists.

The implementation of the Visa Screen certification for healthcare workers started on July 25, 2003, when the immigration authorities introduced the final rule. The final rule indicated September 23, 2003 as the effective date for implementation of the Visa Screen certification requirement, giving affected individuals an opportunity to examine the requirements and apply for a Visa Screen certificate. CGFNS, the only credentialing organization at the time, was overwhelmed by a number of applications for Visa Screen certification and unable to process them efficiently. In addition, numerous healthcare workers working in the US in non-immigrant status (for example, TN, H-1B, etc) became subject to Visa Screen certification and were not ready to meet the requirement.

As the effective date approached, the immigration authorities realized that the actual implementation of the rule would significantly compromise the ability of foreign healthcare workers to enter the US. As a result, the immigration authorities introduced the first transition period and postponed the implementation of the Visa Screen certification for healthcare workers in non-immigrant status until July 25, 2004. Now we enter the second transition period with a waiver of the Visa Screen certification for qualified healthcare workers from Canada and Mexico until July 25, 2005. Let us examine the importance of each of the following dates - July 25, 2003, September 23, 2004, July 26, 2004 and July 26, 2005 - for foreign healthcare workers again.

July 25, 2003. The Department of Homeland Security introduced the Visa Screen certification requirement for foreign healthcare workers in its final rule with a period for public comments until September 23, 2003.

September 23, 2003. The final rule came into effect. As of September 23, 2003, healthcare workers who came to the US to work in healthcare industry with an immigrant visa became subject to Visa Screen certification. No waivers have been available to this particular group of healthcare workers.

July 26, 2004. - Healthcare workers who came to the US to work in the healthcare industry with a non-immigrant visa were exempt from a Visa Screen certification until July 26, 2004. Before July 26, 2004, these healthcare workers were admitted to the US without a Visa Screen certificate. They can stay in the US in status after July 26, 2004 as long as they do not leave the US and do not extend their non-immigrant status. If they wish to do so, they must obtain a Visa Screen certificate and present it to the immigration authorities either at the US border or at the time of their status extension.

July 26, 2005. - Healthcare workers who were employed in the US in a TN category before September 23, 2003 and held a valid US license at the time will be exempt from the Visa Screen certification until July 26, 2005. The waiver of the Visa Screen certification is available only to Canadian and Mexican healthcare workers who were admitted to the US in a TN category on or before September 23, 2003. If such workers were initially admitted to the US in a TN category after September 23, 2003, they are not exempt from a Visa Screen certification.

July 26, 2006, July 26, 2007, etc. - After July 26, 2005, immigration authorities reserve the right to grant a waiver of the Visa Screen certification on a case-by-case basis.

The second transition period specifically benefits TN registered nurses from Canada and Mexico. The new waiver of the Visa Screen certification is not a surprise. This waiver is a result of a heavy lobbying campaign initiated by US hospitals along the Canadian border. However, it is a great disappointment for Canadian registered nurses whose ability to practice nursing in the US was greatly compromised by the Visa Screen certification.

Why are Canadian TN nurses so unhappy about the Visa Screen certification? They are unhappy, 1) because a US nursing license obtained by Canadian nurses under state licensure reciprocity means nothing for the Visa Screen certification purposes, and 2) because they have no intention of abandoning their Canadian residence and will have to re-apply for a Visa Screen certificate and pay $325.00 for its renewal every 5 years.

Despite the fact that Canadian nurses hold both a valid Canadian nursing license and a valid US nursing license, they have to take a formal nurse-qualifying exam to prove that they are fit to practice nursing in the US. Despite the fact that these nurses have been working in the US for decades, they now have to prove their ability to be good nurses, the ability that they have undoubtedly proven to millions of American patients so far. If you were made to prove your professional qualifications and pay for such proof over again to enter the US, despite your nursing qualifications and sufficient US work experience you wouldn't be happy about it. Would you?


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 zlata@jmhmwa.com or at 973-835-0100.


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