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The Impact of Visa Retrogression On Healthcare Workers: Healthcare Certificate Renewals

by Sherry Neal

While visa retrogression affects thousands of foreign nationals who seek to immigrate to the U.S. for employment, it has a disparate impact on seven healthcare occupations that require a healthcare certificate: nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists, medical technicians, and physician assistants.[1] The individual must use the healthcare certificate within 5 years of the date it is issued. Without visa retrogression, many applicants would complete the permanent residence process in a relatively short period of time and receive a green card within the 5 years of the healthcare certificate being issued. But the backlog in visa numbers, creating a wait of several years, has raised the issue of healthcare certificate renewals.

Ironically, two of the organizations approved to issue healthcare certificates -- the Foreign Credentialing Commission on Physical Therapy (FCCPT) and the Commission on Graduates of Foreign Nursing Students (CGFNS) -- disagree on when a healthcare certificate needs to be renewed. The FCCPT interprets the rule to mean that if a healthcare certificate is "used" for any visa issuance (change of status or admission to the U.S. on a temporary status) within five years then it remains valid for subsequent permanent residence. However, CGFNS interprets the rule to mean that the healthcare certificate must be renewed until the person obtains permanent residence, regardless of whether the person has used it for a temporary status or admission within the five year validity.

The conflicting opinion between FCCPT and CGFNS stems directly from the USCIS Regulations. One part of the Regulations says the healthcare certificate must be presented for "each" admission to the U.S. Yet another part of the regulations says the healthcare certificate must be "used" within 5 years of the date it is issued. Still another part of the regulations says the organizations (CGFNS, FCCPT, and NBCOT) must have a policy of renewing the healthcare certificate for any individual whose original certificate expires before the individual "first" seeks admission to the U.S.

The three pertinent Regulations are as follows:

1) 8 CFR 212.15(d) (1) - "The certificate must be valid at the time of visa issuance and admission at port-of-entry. An alien who has previously presented a foreign health care worker certification for a particular health care occupation will be required to present it again at the time of visa issuance or each admission to the United States."

2) 8 CFR 212.15(n)(4) - "The individual's certification must be used for any admission into the United States, change of status within the United States, or adjustment of status within 5 years of the date it is issued."

3) 8 CFR 212.15(k)(4)(viii) - "The organization shall have a formal policy for renewing the certification if an individual's original certification has expired before the individual first seeks admission to the United States or applies for adjustment of status.

Thus, FCCPT appears to focus on 8 C.F.R. 212.15(n)(4) which says the healthcare certificate must be "used" within five years and 8 C.F.R. 212.5(k)(4)(viii) which requires the healthcare certificate to be renewed only if it expires before the individual "first" seeks admission to the U.S. In contrast, CGFNS appears to focus on 8 C.F.R. 212.15(d) (1) for the opinion that a healthcare worker must present the certificate at "each" admission so the healthcare certificate must be renewed regardless of whether it has previously been used.[2]

Interestingly, the USCIS applies the rule inconsistently, sometimes asking for a renewed healthcare certificate at the time of the I-485 adjudication, while other times not.

The simple solution is for the applicant to just renew the healthcare certificate. After all, why does it really matter? Certainly there's the cost in renewing -- $275.00 for an online renewal or $350 for a paper renewal through CGFNS. And there's the inconvenience of renewal: completing another application. But the most significant issue is the re-qualification. For example, some applicants have to retake the English proficiency examination.[3]

The renewal can be especially problematic for physical therapists who received a healthcare certificate through FCCPT's "Type II Certificate" program. The Type II program was available to foreign-educated physical therapists who were licensed in the U.S. Since the state boards of physical therapy evaluated the physical therapists' education in issuing the license, the FCCPT did not do a separate education assessment. However, FCCPT suspended the "Type II Certificate" program on September 1, 2009 and a physical therapist seeking renewal through FCCPT must obtain a "Type I Certificate" instead. For the Type I Certificate, the FCCPT does a separate education assessment based upon current education standards. Thus, some applicants may have met a state's standard of education equivalency at the time they received a state license but not rise to the level of the current education standard.[4]

Thus, some physical therapists have to take additional coursework to meet the current standard.

Interestingly, the USCIS Regulations mandate that the renewal procedures for healthcare certificates "shall be restricted to updating information on licensure to determine the existence of any adverse actions and the need to re-establish English competency.[5]

" Thus it seems that a review of the current education comparability would be outside the scope of the renewal process. Yet the problem is not every "second" healthcare certificate is considered a "renewal". For example, a physical therapist with a Type II Certificate who applies for a second healthcare certificate through FCCPT (because the first one has expired or is expiring), has to apply for a "Type I Certificate" instead of "Type II Certificate". Likewise, if a physical therapist with a Type II Certificate from FCCPT opts to get the second healthcare certificate from CGFNS, it is not treated as a "renewal" because it is not the same certificate from the same agency.

Visa retrogression has a significant impact on healthcare workers. While USCIS does not have the authority to solve visa retrogression, it can soften the impact by addressing the issue of healthcare certificate renewals. USCIS should clarify the confusion that stems from its own Regulations and provide clear guidance on whether a healthcare certificate must be renewed every five years until the applicant obtains permanent residence or whether it needs to be renewed only if the applicant has not "used" the healthcare certificate within 5 years of the date it is issued. When a renewal is required, USCIS should characterize the second healthcare certificate as a renewal of the "healthcare certificate" regardless of whether it is a renewal of the same type of certificate program (Type II or Type I) or a renewal through a different credentialing agency. As such, USCIS should restrict the renewal to "updating information on licensure to determine the existence of any adverse actions" and the need to re-establish English competency, as provided in the USCIS Regulations.


1The "healthcare certificate" involves an assessment of the following: (1) an applicant's education and training is comparable to U.S. education and meets all requirements to practice in the profession; (2) an applicant's healthcare license is authentic and unencumbered; (3) an applicant is competent in oral and written English language as determined through a language proficiency examination; and (4) an applicant has passed the license examination or a predictor examination if a majority of the states recognize a predictor exam, except physical therapists can meet this latter requirement with proof of "authorization to test" for the national licensing exam.

2See CFGNS Fact Sheet, "Requirements and Terms of Admission for Certain Nonimmigrant Health Carew Workers Who Require Visa screen Certificates," (May 7, 2009), available at which says: The regulation requires that a valid CGFNS certificate be presented to DHS each time the applicant applies for Admission, changes, adjusts, or extends. Therefore, an expired certificate renders the individual inadmissible at the Time of admission, change, adjustment or extension of status. The certification requirement is treated in the same manner as the licensure requirement. Both licensure and certification must be valid at the time it is presented.

3Last year CGFNS created an exemption whereby applicants can renew their healthcare certificate without re-taking the English language examination if the applicant has been employed in the U.S. at least 27 months with at least nine of those months occurring in the year before the applicant submits the renewal application.

4In the last few years, the physical therapy curriculum in the U.S. has evolved to a five year program. Thus, even some physical therapists who graduated from U.S. universities and colleges several years ago would not be able to meet the current education standard either, if U.S. graduates were required to obtain a healthcare certificate. 8 C.F.R. 212.15(k) (4) (viii).

58 C.F.R. 212.15(k) (4) (viii).

About The Author

Sherry Neal is a Partner at Hammond Law Group, LLC in Cincinnati, Ohio where she manages the Healthcare Immigration Practice. She has been practicing business immigration law for sixteen years. She is a frequent speaker at conferences and events throughout the U.S. and has widely published in the immigration field. She can be reached at SLN@HAMMONDLAWGROUP.COM.

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