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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 Requirement for Qualified TN Healthcare Workers: Employment, Licensure, Advance Parole

by Zlata A. Dikaya, Esq.

On July 26, 2004 the Department of Homeland Security (DHS) waived the Visa Screen certification requirement for Canadian and Mexican healthcare workers who come to the US to work in a Trade NAFTA (TN) category under the North American Free Trade Agreement (NAFTA) of January 1, 1994. The Visa Screen certification requirement makes foreign healthcare workers inadmissible until they obtain a Visa Screen certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS), or another credentialing organization.

Two conditions
To qualify for this waiver TN healthcare workers must satisfy the following two conditions: 1) to have been employed in a TN status before September 23, 2003; and 2) to have held a valid license from a US jurisdiction before September 23, 2003. DHS specifically stated that to qualify for the waiver TN healthcare workers did not need to be physically present in the US on September 23, 2003. It means that TN workers who were outside the US on or after September 23, 2003 can waive the Visa Screen certification requirement for 1 year upon their entry to the US, if they satisfy the above two conditions.

"Physical presence" clarification is the only guideline that DHS provided for the new waiver leaving plenty of room for legal interpretations and making many attorneys second-guess practical implications of the new waiver. One particular area of confusion is the lack of any guidance on what TN employment is acceptable for a Visa Screen certification waiver. In other words, the issue of continuous vs. non-continuous employment before September 23, 2003 in a TN category is omitted from the DHS explanation of a new waiver.

"To be employed before September 23, 2003"
It is unclear whether to qualify for a waiver a TN healthcare worker needs to have been employed immediately preceding September 23, 2003 or at any time before September 23, 2003. If a TN healthcare worker worked in the US in 2000 and then left the US and sought entry to the US in a TN status again in August 2004, would this person satisfy the condition "to be employed in the US in a TN status before September 23, 3003" and therefore, be admissible to the US without a Visa Screen certificate? Upon plain reading of the language in the published rule, it appears that the condition would be satisfied, because 2000 was "before September 23, 2003."

I personally favor such interpretation, and would advise any TN healthcare worker to take advantage of the new waiver as long as DHS does not further clarify the issue of qualified employment. Therefore, any TN healthcare worker who has ever worked in the US in a TN (or TC before 1994) category before September 23, 2003 and held a license in a US jurisdiction would benefit from the waiver and be able to enter the US in a TN category without a Visa Screen certificate until July 26, 2005.

However, healthcare workers who initially enter the US in a TN category after September 23, 2003 will have to present a Visa Screen certificate at the border, because they do not qualify for a Visa Screen certification requirement waiver. DHS authorizes border patrol officers to waive a Visa Screen requirement on a case-by-case basis, but TN healthcare workers are not advised to count on such a decision when planning to enter the US after July 26, 2004 for the first time.

"To hold a valid license before September 23, 2003"
The condition "to hold a license from a US jurisdiction before September 23, 2003" seems to be more straightforward than the condition "to be employed in the US before September 23, 2003." A TN worker who has ever been licensed in the US before September 23, 2003 easily satisfies the waiver requirement. Usually TN workers licensed in the US are obliged to maintain their US licenses in good standing and pay annual licensure fees, so their US licenses will remain valid. License validity can be preserved even if a license holder is in inactive status and does not practice in a particular US jurisdiction.

If a TN worker's license falls into delinquency in a particular US jurisdiction, renewal fees may be charged before a license is reinstated. Long-term delinquency (each US jurisdiction differs by a number of years) automatically voids a US license. Potentially, the immigration authorities can raise an objection against US licenses that became expired or void before September 23, 2003, and therefore, would not satisfy the condition "to hold a valid license before September 23, 2003." To avoid potential problems TN healthcare workers are advised to learn about applicable state licensure requirements and maintain their US licenses in good standing.

Proof of Eligibility for a Waiver
TN healthcare workers who want to benefit from a new waiver have the burden to prove their eligibility for the waiver. According to DHS, the acceptable proofs may include copies of prior approval notices from immigration authorities, payroll records, pay stubs, employment verification records, letters from employers', state licenses, and other evidence that proves employment and US licensure before September 23, 2003. Copies of an I-94 form (arrival/departure card) that a TN worker is issued upon entry to the US can also be presented. Past I-94 forms are usually hard to submit, because TN workers must surrender them when they leave the US. Unless one specifically preserves copies of past I-94 forms, other types of evidence should be prepared and showed at the border.

New waiver and traveling on Advance Parole
Some TN healthcare workers after entering the US in a TN status become beneficiaries of immigrant visa petitions and apply for adjustment of status (in other words, a Green Card). These individuals often obtain an advance parole to depart and then enter the US, but fear to travel due to the Visa Screen certification requirement.

Is it safe for an applicant for an adjustment of status to travel on an advance parole without a Visa Screen certificate, if such an applicant is a former TN healthcare worker? It is safe, as long as an adjustment of status application is pending. The former TN healthcare workers can de facto "postpone" Visa Screen certification requirement until the final decision on their adjustment is made.

Such postponement is possible, because an applicant for adjustment of status holds neither a valid non-immigrant status (not a TN holder anymore) nor has been granted a valid immigrant status yet (not a US resident yet). The applicants for adjustment of status - former TN healthcare workers - are transitioning from a non-immigrant status to an immigrant status. An advance parole allows individuals in such a transitioning state to safely travel in and out of the US.

Certainly, applicants for adjustment of status must submit a Visa Screen certificate before a final decision on their adjustment of status. Otherwise, an adjustment will be denied. Visa Screen certification is not an initial eligibility requirement for healthcare workers when they apply for an adjustment of status. A Visa Screen certificate can be part of post-filing submission as long as it occurs before such a final decision. In the meantime, while an adjustment of status application is pending, travel on advance parole for former TN healthcare workers is safe.


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.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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