ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



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


[Federal Register: October 11, 2002 (Volume 67, Number 198)]
[Proposed Rules]               
[Page 63313-63327]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11oc02-24]                         

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================



[[Page 63313]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 212, 214, 245, 248 and 299

[INS 2080-00]
RIN 1115-AE73

 
Certificates for Certain Health Care Workers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule specifies the organizations already authorized to 
issue health care workers certificates, and sets up procedures for 
authorizing additional organizations, including an appeals process in 
the event that requests for authorization are denied. In addition, this 
rule proposes to add the requirement that all nonimmigrants coming to 
the United States for the primary purpose of labor as health care 
workers, including those seeking a change of status, be required to 
submit a health care worker certification. Previously, the Service had 
implemented health care worker certification requirements through three 
interim regulations. This proposed rule expands on those three interim 
rules and allows for a comment period. Finally, the Immigration and 
Naturalization Service (Service) proposes amendments to a previously 
created form that will allow organizations to formally seek 
authorization to issue certificates to health care workers in a uniform 
manner. Publication of this proposed rule will ensure more uniformity 
in the adjudication of petitions and admissibility determinations for 
aliens seeking to enter the United States to engage in labor as health 
care workers.

DATES: Written comments must be submitted on or before December 10, 
2002.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference INS No. 2080-00 on your correspondence. 
Comments may also be submitted electronically to the Service at 
insregs@usdoj.gov. When submitting comments electronically, please 
include INS No. 2080-00 in the subject box. Comments are available for 
public inspection at the above address by calling (202) 514-3048 to 
arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Mari F. Johnson, Adjudications 
Officer, Office of Adjudications, Immigration and Naturalization 
Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone 
(202) 353-8177.

SUPPLEMENTARY INFORMATION:

What Are the Provisions of Sections 212(a)(5)(C) and (r) of the 
Immigration and Nationality Act (Act)?

    Section 343 of the Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRIRA), Public Law 104-208, 110 Stat. 3009, 636-37 
(1996), created a new ground of inadmissibility now codified at section 
212(a)(5)(C) of the Act, 8 U.S.C. 1182(a)(5)(C). It provides that, 
subject to section 212(r) of the Act, an alien who seeks to enter the 
United States for the purpose of performing labor as a health care 
worker, other than a physician, is inadmissible unless the alien 
presents a certificate from the Commission on Graduates of Foreign 
Nursing Schools (CGFNS) or an equivalent independent credentialing 
organization approved by the Attorney General in consultation with the 
Secretary of the Department of Health and Human Services (HHS) 
verifying that:
    (1) The alien's education, training, license, and experience meet 
all applicable statutory and regulatory requirements for admission into 
the United States under the classification specified in the 
application; are comparable with that required for an American health 
care worker of the same type; are authentic; and, in the case of a 
license, unencumbered;
    (2) The alien has the level of competence in oral and written 
English considered by the Secretary of HHS, in consultation with the 
Secretary of Education, to be appropriate for health care work of the 
kind in which the alien will be engaged, as shown by an appropriate 
score on one or more nationally recognized, commercially available, 
standardized assessments of the applicant's ability to speak and write 
English; and
    (3) If a majority of States licensing the profession in which the 
alien intends to work recognize a test predicting an applicant's 
success on the profession's licensing or certification examination, the 
alien has passed such a test, or has passed such an examination.
    Section 4(a) of the Nursing Relief for Disadvantaged Areas Act of 
1999 (NRDAA), Public Law 106-95, now codified at section 212(r) of the 
Act, 8 U.S.C. 1182(r), created an alternative certification process for 
aliens who seek to enter the United States for the purpose of 
performing labor as a nurse. In lieu of a certification under the 
standards of section 212(a)(5)(C) of the Act, an alien nurse can 
present to the consular officer (or in the case of an adjustment of 
status, the Attorney General) a certified statement from CGFNS (or an 
equivalent independent credentialing organization approved for the 
certification of nurses) that:
    (1) The alien has a valid and unrestricted license as a nurse in a 
State where the alien intends to be employed and that such State 
verifies that the foreign licenses of alien nurses are authentic and 
unencumbered;
    (2) The alien has passed the National Council Licensure Examination 
(NCLEX); and
    (3) The alien is a graduate of a nursing program that meets the 
following requirements:
    (i) The language of instruction was English; and
    (ii) The nursing program was located in a country which:
    (A) was designated by CGFNS no later than 30 days after the 
enactment of the NRDAA, based on CGFNS'' assessment that designation of 
such country is justified by the quality of nursing education in that 
country, and the English language proficiency of those who complete 
such programs in that country; or
    (B) was designated on the basis of such an assessment by unanimous 
agreement of CGFNS and any equivalent credentialing organizations which 
the Attorney General has approved for the certification of nurses; and

[[Page 63314]]

    (iii) The nursing program:
    (A) was in operation on or before November 12, 1999; or
    (B) has been approved by unanimous agreement of CGFNS and any 
equivalent credentialing organizations which the Attorney General has 
approved for the certification of nurses.
    CGFNS designated the following countries for purposes of this 
alternate certification: Australia, Canada, Ireland, New Zealand, South 
Africa, the United Kingdom, and the United States.

How Has the Service Implemented These Requirements?

    Section 212(a)(5)(C) of the Act became effective upon enactment on 
September 30, 1996. Shortly thereafter, the Service met and conferred 
with HHS, the Department of Labor (DOL), the Department of Education 
(DoED), the Department of Commerce (DOC), the Office of the United 
States Trade Representative (USTR), and DOS to reach consensus on the 
best approach for implementation of the new provision. In addition, the 
Service met with interested private organizations including CGFNS, the 
American Occupational Therapists Association, the National Board for 
Certification in Occupational Therapy (NBCOT), the Federated State 
Board of Physical Therapy, and the American Physical Therapy 
Association.
    The Service has implemented section 343 of IIRIRA and NRDAA, via 
three interim rules published in the Federal Register as follows:
    (1) 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);
    (2) Additional Authorization to Issue Certificates for Foreign 
Health Care Workers, 64 FR 23174 (April 30, 1999) (amending Sec.  
212.15)(the second Interim Rule); and
    (3) 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 Sec.  212.15)(the third Interim Rule).
    These current regulatory provisions shall remain in effect until 
this proposed rule is adopted as a final rule.

What Were the Provisions of the First Interim Rule?

    The Service in consultation with HHS initially identified, on the 
basis of the legislative history, seven categories of health care 
workers subject to the provisions of section 212(a)(5)(C) of the Act. 
See H.R. CONF. REP. NO. 104-828 at 227 (1996). The seven categories are 
nurses, physical therapists, occupational therapists, speech-language 
pathologists, medical technologists (also known as clinical laboratory 
scientists), medical technicians (also known as clinical laboratory 
technicians) and physician assistants. See 63 FR at 55008.
    In the first Interim Rule, the Service authorized CGFNS and the 
NBCOT to issue certificates to immigrant nurses and occupational 
therapists respectively, established the appropriate English language 
competency levels for foreign nurses and occupational therapists, and 
specified exemptions from English language proficiency testing. The 
first Interim Rule was adopted without the notice and comment period 
ordinarily required by 5 U.S.C. 553, the Administrative Procedure Act, 
because the Service found that delay in the establishment of a 
certification process could adversely affect the provision of health 
care, particularly in medically underserved areas for nursing and 
occupational therapy. The Service identified two criteria to support 
the temporary authorization of CGFNS and the NBCOT to issue 
certificates to immigrant nurses and occupational therapists: (1) The 
existence of a sustained level of demand for foreign workers for the 
particular occupation exists; and (2) the fact that these are both 
organizations with an established track record in providing 
credentialing services.
    The first Interim rule applied only to immigrants. The Service and 
DOS exercised their discretion under section 212(d)(3) of the Act, 8 
U.S.C. 1182(d)(3), to waive the foreign health care worker 
certification requirement for nonimmigrant health care workers until 
promulgation of final implementing regulations. The Service and DOS 
exercised their waiver discretion after carefully considering the 
complexity of the implementation issues, including how the health care 
certificate requirements affect United States obligations under 
international agreements, and the need for health care facilities 
across the country to remain fully staffed and provide a high quality 
of service to the public. The waiver of inadmissibility applies to 
nonimmigrant health care workers already in possession of nonimmigrant 
visas and visa exempt aliens, including Canadians applying for 
classification under section 214(e) of the Act, 8 U.S.C. 1184(e)(TN 
classification). Under current procedures, a formal application or fee 
is not required for a nonimmigrant health care worker to obtain the 
waiver. Nonimmigrant health care workers are admitted on a multiple 
entry Form I-94, Arrival--Departure Record, for one year. In addition, 
otherwise admissible dependents are also authorized admission into the 
United States for the specific dates of stay authorized for the 
principal alien. A new waiver is not required if the nonimmigrant 
health care worker makes an application for admission to the United 
States during the validity period of the previously issued Form I-94. 
Nonimmigrants applying for TN classification are not required to pay 
the admission fee described at 8 CFR 214.6(f) when applying for 
admission during the validity period of the previously issued Form I-
94. Finally, nonimmigrant health care workers are eligible for 
extensions of the waiver and corresponding extensions of stay in 
increments of one year.

What Were the Provisions of the Second Interim Rule?

    In the second Interim Rule, the Service temporarily authorized 
CGFNS to issue certificates to immigrant occupational therapists and 
physical therapists, temporarily authorized the Foreign Credentialing 
Commission on Physical Therapy (FCCPT) to issue certificates to 
immigrant physical therapists, and established the appropriate English 
language competency levels for physical therapists.
    The Service, in consultation with HHS, evaluated CGFNS' and FCCPT's 
applications for authorization to issue certificates under the criteria 
in the first Interim Rule. The Service found that both CGFNS and FCCPT 
met the ``established track record'' criterion, and concluded that 
there was a sustained level of demand for occupational therapists and 
for physical therapists.

What Were the Provisions of the Third Interim Rule?

    In the third Interim Rule, the Service temporarily authorized CGFNS 
to issue certificates to immigrant speech-language pathologists and 
audiologists, medical technologists (also known as clinical laboratory 
scientists), physician assistants, and medical technicians (also known 
as clinical laboratory technicians), listed the passing scores for the 
English language tests for those health care occupations, and amended 
the regulations concerning which organizations may administer the 
English language tests. The Service also modified the criteria it had 
used in the first and second Interim Rules to temporarily authorize 
organizations to issue certificates to immigrant health care workers.

[[Page 63315]]

    By the time the third Interim Rule was adopted, the Service had 
experienced tremendous administrative difficulty in promulgating 
permanent regulations implementing 8 U.S.C. 1182(a)(5)(C) due to the 
complexity of the issues to be addressed, particularly the issues 
concerning the impact on United States obligations under various 
international agreements. While the Service and DOS had exercised their 
discretion under section 212(d)(3) of the Act to temporarily waive the 
inadmissibility of nonimmigrant health care workers, thereby permitting 
nonimmigrant health care workers to be admitted to the United States 
without a certification, they lacked the statutory authority to waive 
the inadmissibility of immigrant health care workers. Accordingly, the 
Service and DOS were unable to adjudicate the petitions of those 
immigrant health care workers not covered by the first or second 
Interim Rules. The immigrant petitions and adjustment applications for 
speech-language pathologists and audiologists, medical technologists/
clinical laboratory scientists, physician assistants, and medical 
technicians/clinical laboratory technicians had been held in abeyance 
for several years. Recognizing that it was unable to execute its 
adjudicative functions with respect to this growing backlog, the 
Service did not rely on the criterion of a ``sustained level of 
demand'' for the immigrant workers in question. The Service found that 
CGFNS had an established track record in issuing certificates for the 
additional occupations.

What Were the Provisions of the H-1C Rule?

    The Service also published a related rule in response to the 
passage of the NRDAA, Petitioning Requirements for the H-1C 
Nonimmigrant Classification under Public Law 106-95, 66 FR 31107 (June 
11, 2001) (amending 8 CFR 214.2(h)). Among other things, the NRDAA 
created an alternative certification process for foreign nurses only, 
as provided in section 212(r) of the Act. In the H-1C rule, the Service 
announced that it would continue to waive the certification 
requirements for nonimmigrant nurses, pending the promulgation of new 
regulations implementing both certification processes. That is the 
purpose of this proposed rule.
    It should be noted that in the H-1C Rule, the Service incorrectly 
stated that two interim rules had been promulgated, which authorized 
credentialing organizations to issue certifications to immigrant health 
care workers in three occupations. In fact, as previously described, 
with the publication of the third Interim Rule, the Service had 
authorized credentialing organizations to issue certifications in all 
seven of the health care occupations initially identified as subject to 
the certification requirements.

What Does This Rule Propose?

    This rule proposes to implement a comprehensive process for the 
certification of foreign health care workers under sections 
212(a)(5)(C) and (r) of the Act. It addresses foreign health care 
workers coming to the United States on a temporary basis (nonimmigrant 
aliens) as well as on a permanent basis (immigrants).
    This rule proposes to amend 8 CFR 212.15 by:
    (1) Specifying which organizations are authorized to issue 
certificates (Sec.  212.15(e));
    (2) Describing the required content of the certificate itself 
(Sec.  212.15(f));
    (3) Specifying the English language requirements for certification 
(Sec.  212.15(g));
    (4) Implementing the alternative certification process for foreign 
nurses and the required content of the certified statement (Sec.  
212.15(h));
    (5) Describing the procedure to qualify as a certifying 
organization (Sec.  212.15(j));
    (6) Listing the standards that an organization must meet in order 
to obtain and retain authorization to issue foreign health care worker 
certifications (Sec.  212.15(k)); and
    (7) Providing for periodic review of the performance of certifying 
organizations (Sec.  212.15(l)) and the termination of their authority 
(Sec.  212.15(m)).
    This rule proposes to amend 8 CFR 103.1 by specifying at new 
paragraphs (f)(3)(iii)(QQ) and (RR) that the Associate Commissioner for 
Examinations exercises appellate jurisdiction over applications for 
authorization to issue foreign health care worker certifications, and 
the termination of authorization to issue foreign health care worker 
certifications.
    This rule proposes to amend 8 CFR 103.7(b)(1) by adding a fee for 
filing Form I-905, Application for Authorization to Issue Certification 
for Health Care Workers. This form was previously approved for use in 
order to ensure that organizations formally seeking authorization to 
issue health care worker certificates or certified statements will be 
able to submit complete and uniform applications. This form has not yet 
been implemented by the Service.
    This rule proposes to amend 8 CFR 214.1(h) by adding a requirement 
that an alien who seeks to enter the United States for the purpose of 
performing labor in a health care occupation must present a foreign 
health care worker certification to the Service in accordance with 8 
CFR 212.15(d).
    This rule proposes to remove text at 8 CFR 245.14 relating to the 
adjustment of status of certain health care workers. This provision is 
duplicated by the provisions of 8 CFR 212.15(d).
    This rule proposes to amend 8 CFR 248.3 by adding paragraph (i) to 
mandate that a nonimmigrant seeking a change of status to perform labor 
in a health care occupation must submit a foreign health care worker 
certification.

Who Is Subject to the Health Care Certification Requirements?

    After the Service's consideration of the relevant statutory 
provisions, legislative history, judicial precedent, international 
agreements, and other proposed rulemakings, and after extensive 
consultations that the Service has had with other agencies, this 
proposed rule takes the position that the requirements of section 
212(a)(5)(C) apply to both immigrants and nonimmigrants who seek to 
enter the United States for the purpose of performing labor as a health 
care worker. Physicians, however, are explicitly exempted from the 
certification requirement by the statute and, therefore, are not 
covered by this rule.
    With respect to immigrants, the certification requirement applies 
to both aliens overseas who are seeking an immigrant visa before 
traveling to the United States, and aliens in the United States who are 
applying for adjustment of status to that of a permanent resident. The 
Service interprets the statutory language, ``any alien who seeks to 
enter the United States for the purpose of performing labor as a health 
care worker * * *'' with respect to immigrants, to limit the scope of 
this provision to aliens with an approved employment-based (EB) 
preference petition under section 203(b) of the Act, 8 U.S.C. 1153(b), 
to perform labor in a covered health care occupation. Therefore, an 
alien who has applied for an immigrant visa or adjustment of status, 
pursuant to a family sponsored petition under section 203(a) of the 
Act, 8 U.S.C. 1153(a), or pursuant to an EB preference petition for a 
non-health care occupation, or pursuant to section 209 of the Act, 8 
U.S.C. 1159 (adjustment of status of refugees), or pursuant to section 
210 of the Act, 8 U.S.C. 1160 (special agricultural workers), or

[[Page 63316]]

pursuant to section 240A of the Act, 8 U.S.C. 1229(b) (cancellation of 
removal), or pursuant to section 249 of the Act, 8 U.S.C. 1259 (record 
of admission for permanent residence), or pursuant to any other 
statutory provision relating to admission as an immigrant, is not 
subject to the requirements of section 212(a)(5)(C) of the Act.
    With respect to nonimmigrants, the proposed rule applies the 
certification requirement to all aliens who have obtained nonimmigrant 
status for the purpose of performing labor as a health care worker, 
including, but not limited to, those aliens described in sections 
101(a)(15)(H), (J), and (O) of the Act, 8 U.S.C. 1101(a)(15), and 
aliens entering pursuant to section 214(e) of the Act, 8 U.S.C. 
1184(e), as TN professionals.
    The Service is proposing that a nonimmigrant entering the United 
States to receive training in an occupation listed at 8 CFR 212.15(c) 
will not be required to obtain a health care certification. This 
includes F-1 nonimmigrants receiving practical training and J-1 
nonimmigrants coming to the United States to undertake a training 
program in a medical field. In the Service's view, nonimmigrants 
entering the United States to receive training in a health care 
occupation fall outside the ambit of section 212(a)(5)(C) of the Act 
because they are not independently performing the full range of duties 
of their occupation, and therefore are not entering for the purpose of 
performing labor as a health care worker.
    Finally, the Service has concluded that the health care 
certification requirement should not be applied to the spouse and 
dependent children of an immigrant or nonimmigrant alien. Dependent 
aliens enter the United States for the primary purpose of accompanying 
the principal alien, not to perform labor as a health care worker, or 
in any other field. A dependent alien derives his or her nonimmigrant 
status from his or her familial relationship with the principal alien. 
Therefore, while he or she may be permitted to work in some 
circumstances, he or she is not required to work in a particular 
occupational field or for a specific employer to maintain his or her 
status. Accordingly, regardless of whether or not a dependent alien may 
intend to work in a health care occupation listed at 8 CFR 212.15(c), 
while accompanying the principal alien to the United States, he or she 
would not be subject to the health care worker certification 
requirement.
    The Service is very interested in and invites public comment on the 
appropriate scope of the certification requirement.

Are Foreign Health Care Workers Who Have Been Trained in the United 
States, or Who Are In Possession of a Valid State License, Subject to 
the Health Care Certification Requirement?

    After passage of IIRIRA, the Service received a number of inquiries 
and comments regarding whether a foreign health care worker in 
possession of a full and unrestricted license issued by the State of 
intended employment would be required to obtain a certificate under 
section 212(a)(5)(C) of the Act. After carefully considering the plain 
language of the statute, and upon consultation with HHS, the Service 
has concluded that possession of a State license does not exempt a 
foreign health care worker from compliance with the certification 
requirement. First, section 212(a)(5)(C) of the Act applies to all 
aliens coming to perform labor as health care workers, except for 
physicians and for registered nurses who can meet the alternative 
requirements in section 212(r) of the Act. Nothing in the text of 
section 212(a)(5)(C) of the Act relieves alien health care workers of 
this requirement, on the ground that they were trained in the United 
States or are already licensed here. Moreover, one aspect of the 
required certification is the certification that any State license the 
alien may already have is unencumbered. Indeed, had Congress intended 
to exempt such aliens from the certification requirement, it would not 
have explicitly provided that the certification must document the fact 
of an alien's successful passage of any test or examination that is 
accepted as evidence of an applicant's likely success on a State 
licensing examination, if a majority of States recognize such a pre-
licensing test or examination. In addition, in NRDAA, Congress 
explicitly addressed whether a foreign nurse, in possession of a full 
and unrestricted license issued by the State of intended employment, 
should be subject to the certification requirement. NRDAA created a 
less onerous, alternative method of certification for foreign nurses 
who have unrestricted State licenses and meet certain other conditions, 
as provided in section 212(r) of the Act. The fact that Congress has 
chosen not to provide a less rigorous alternative certification option 
to State-licensed foreign health care workers other than nurses 
supports the inference that Congress intended State-licensed foreign 
health care workers to comply with the certification process.
    In addition to the statutory scheme, there are policy 
considerations that mitigate in favor of applying the certification 
requirement to State-licensed foreign health care workers. The State 
screening process alone would not demonstrate that the other two prongs 
of the certification requirement, English language competency, and 
comparable training and unencumbered licensing, had been met. First, 
the State screening process does not always measure English 
proficiency. Secondly, HHS has advised the Service that the State 
screening process may not always discover encumbrances and restrictions 
on a license.
    The statute and legislative history are silent with respect to 
whether foreign health care workers, who received their training in the 
United States, are subject to the certification process. While such 
aliens would satisfy the comparable training certification 
requirements, their licensure would not be verified, as required by the 
statute. Given the lack of evidence of congressional intent that such 
aliens be exempt from the reach of section 212(a)(5)(C) of the Act, the 
Service has concluded that foreign health care workers who received 
their training in the United States must comply with the certification 
requirement.
    The Service, however, would not be opposed to permitting 
credentialing organizations to develop a modified or streamlined 
certification process for foreign health care workers who hold an 
unrestricted State license, or who have been trained in the United 
States. The Service invites comments regarding the feasibility of 
having a more streamlined certification process for those who train in 
the United States or who are already licensed here, and regarding 
specific proposals on how to adopt such a policy. The critical issue 
would be whether, as a matter of its own professional judgment, the 
appropriating credentialing organization considers its appropriate to 
certify an alien's satisfaction of the substantive requirements of 
section 212(a)(5)(C) of the Act on the basis of the alien's having been 
trained or licensed in the United States.

Which Health Care Occupations Are Subject to 8 U.S.C. 1182(a)(5)(C)?

    As previously noted, after passage of IIRIRA the Service 
identified, on the basis of the legislative history, seven categories 
of health care workers subject to the health care certification 
requirements. See H.R. CONF. REP. NO. 104-828 at 227 (1996). The seven 
categories are nurses, physical therapists, occupational therapists, 
speech-language pathologists, medical

[[Page 63317]]

technologists (also known as clinical laboratory scientists), medical 
technicians (also known as clinical laboratory technicians) and 
physician assistants. See the first Interim Rule. The conference report 
also provided that the Service could designate additional health care 
occupations subject to certification by regulation. Since the Service 
has limited agency expertise with health care occupations and issues, 
it has consulted extensively with HHS, the agency generally responsible 
for overseeing health care occupations and other related health care 
issues in the United States, with respect to the question of whether 
aliens in additional health care occupations should be required to 
comply with 8 U.S.C. 1182(a)(5)(C).
    The Service and HHS have identified two factors relevant to the 
consideration of which health care occupations fall under the ambit of 
section 212(a)(5)(C) of the Act. The first factor is whether the health 
care occupation generally requires a license in a majority of the 
States. This factor reflects the States' historical and practical 
experience in distinguishing between those health care occupations 
requiring extensive regulation and those occupations that do not. The 
second factor is whether the health care worker has a direct effect on 
patient care, or in other words whether a health care worker in that 
occupation could reasonably pose a risk to patient health.
    Under this rule, health care workers such as, but not limited to, 
medical teachers, medical researchers, managers of health care 
facilities, and medical consultants to the insurance industry would not 
be required to comply with the certification requirement. 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 be subject to the certification 
requirements. The Service invites comments on whether the list of 
health care occupations should be expanded, addressing its use of these 
two factors to determine which health care workers are subject to 
certification, and whether particular occupations should be added to 
the list.
    The Service acknowledges that the job description of certain 
occupations that could be added to the list, such as a ``clinical 
social worker,'' may differ in other countries from the U.S. definition 
of a ``clinical social worker.'' These differences may create confusion 
about who exactly is subject to certification. A solution may lie in 
explicitly defining each health care occupation, subject to 
certification, in the final rule. Accordingly, the Service invites 
comments regarding the need to define a health care occupation that is 
subject to certification.

How Will an Alien Submit the Foreign Health Care Worker Certification 
to the Service?

    The statutory language at section 212(a)(5)(C) of the Act requires 
certain aliens seeking to enter the United States for the purpose of 
performing labor as a health-care worker to present a certificate from 
CGFNS or an equivalent credentialing organization to the consular 
officer or, in the case of an adjustment of status, the Attorney 
General. Accordingly, the requirement that the certificate be presented 
to a consular officer at the time of visa issuance and to the Service 
at the time of admission or adjustment of status will continue.
    When an alien seeking entry to the United States to perform labor 
in a particular health care occupation has already presented the 
certification and been admitted as a nonimmigrant, an immigrant, or has 
adjusted to permanent resident status, he or she will not be required 
to present the certificate again when he or she makes future 
applications for admission to the United States to perform labor in 
that particular health care occupation. The presentation of a Form I-94 
issued to the alien at the initial admission to the United States, or a 
fee receipt showing that the alien was processed for admission under 
the North American Free Trade Agreement after this rule is adopted in 
final form, can be used, if required, as evidence that the alien has 
previously presented a foreign health care worker certificate for a 
particular health care occupation. Similarly, such an alien will not be 
required to again present the foreign health care worker certificate to 
the Service, with an application for extension of status to perform 
labor in that particular health care occupation. It should be noted 
that these proposed regulations do not affect or diminish the authority 
of State regulatory bodies with respect to whether an alien is 
permitted to continue employment as a health care worker in that 
particular State.
    This rule proposes to add a new Sec.  248.3(i) to outline the 
procedure for submitting the certificate to the Service when an 
application is made to change nonimmigrant status within the United 
States.
    Upon the effective date when this rule is published as a final 
rule, nonimmigrants who have already entered the United States under a 
waiver of inadmissibility under section 212(d)(3) of the Act and are 
working as health care workers will be required to present a 
certificate to the Service only if, at any point in the future, they 
file an application for an extension of stay, or apply for admission to 
the United States, whichever event occurs first.
    The Service welcomes comments and suggestions on how this procedure 
can be modified or altered to better accommodate the aliens affected by 
this provision.

How Will an Organization Obtain Authorization To Issue Health Care 
Certificates?

    The statute provides that a foreign health care worker must present 
a certificate from CGFNS or an equivalent credentialing organization 
or, in the case of certain foreign nurses, a certified statement from 
CGFNS or an equivalent credentialing organization. In the legislative 
history to IIRIRA, the conferees identified seven health care 
occupations (which are currently reflected in Sec.  212.15(c)). It is 
reasonable to infer from the statutory designation of CGFNS as a 
credentialing organization that Congress considered CGFNS to possess 
the resources and expertise to issue certificates in at least those 
seven designated health care occupations. Accordingly, the Service will 
not require CGFNS to apply for credentialing status with respect to 
those seven health care occupations. However, CGFNS will be required to 
submit information regarding its certification processes via filing of 
Form I-905, Application for Authorization to Issue Certification for 
Health Care Workers, without fee with the Director, Nebraska Service 
Center, in order to enable the Service to review the content of 
certificates for the seven health care occupations, and content of 
certified statements for nurses, and ensure compliance with the 
universal standards set forth in this rule. Like other credentialing 
organizations, CGFNS will also be subject to ongoing review by the 
Service, and termination of credentialing status for noncompliance with 
this rule.
    It is less clear, however, that Congress considered whether CGFNS 
possessed the expertise to issue certificates for health care 
occupations other than the seven identified in the legislative history. 
Therefore, although CGFNS' statutory designation creates a strong 
presumption of expertise with respect to all health care occupations, 
the Service will require CGFNS to file an application on Form I-905 
with fee under the procedures outlined at proposed Sec.  212.15(j), for 
credentialing status with respect to any health care

[[Page 63318]]

occupation other than the seven identified in the legislative history.
    Organizations, other than CGFNS, may be approved to issue 
certificates or certified statements by submission of Form I-905 to the 
Director, Nebraska Service Center, with fee. The fee for Form I-905 
will be $230. The Service will submit Form I-905 to the Office of 
Management and Budget for approval pursuant to the Paperwork Reduction 
Act of 1995.
    For purposes of administrative ease and efficiency, the Service 
will centralize all requests for designation as a credentialing 
organization at the Nebraska Service Center, regardless of the 
geographical location of the requesting organization. Centralization of 
these requests will enable personnel at the Nebraska Service Center to 
establish and maintain the appropriate contacts with HHS and DoED to 
assist in the adjudication of applications for credentialing status. 
The Service will accord significant weight to the opinion of HHS in the 
adjudication of applications for credentialing status because of that 
agency's expertise with credentialing requirements for health care 
occupations and health care issues. It should be noted, however, that 
the Service may deny a request for authorization on grounds unrelated 
to credentialing requirements for health care occupations or health 
care issues, despite a favorable HHS opinion.
    The Form I-905 will require the organization seeking credentialing 
status to:
    (1) Provide a point of contact and a written, detailed description 
of the organization and how the organization meets the standards 
described in 8 CFR 212.15(k);
    (2) List the health care occupations for which the organization is 
seeking approval to issue certificates, and describe the organization's 
expertise in each health care occupation for which approval to issue 
certificates is sought;
    (3) Describe how it will process applications and issue 
certificates on a timely basis; and
    (4) Describe the procedure it has designed in order for the Service 
to verify the validity of a certificate.
    The Service will provide the organization with a written decision 
on its application. An organization granted authorization to issue 
certificates must agree to provide the Service with all requested 
documentation and to allow the Service access to its records relating 
to the certification process. If the application is denied, the Service 
will explain the reason(s) for the denial. Applications that are denied 
by the Service may be appealed to the Administrative Appeals Office 
pursuant to 8 CFR 103.3.
    The Service is planning to add new organizations that are approved 
to issue certificates and certified statements to Sec.  212.15(e) via 
publication of an interim rule in the Federal Register. In the 
alternative, the Service is considering designating, by a separate and 
comprehensive public notice in the Federal Register, the list of 
organizations approved to issue certification. The Service would also 
maintain this list on its website at http://www.ins.usdoj.gov. This 
method would allow the Service to update the list of authorized 
organizations more quickly than through publication of interim rules. 
The Service seeks comment on whether this alternative method of 
maintaining a list of authorized organizations would better serve the 
public.
    More than one organization may be approved by the Service to issue 
certificates for the same health care occupation. An alien may obtain a 
certificate from any organization authorized to issue certificates for 
that occupation. This rule also provides that the Service's approval 
will be for a 5-year period of time subject to the review process 
described in 8 CFR 215.15(l).
    The Service proposes to extend the temporary authorization of 
CGFNS, NBCOT, and FCCPT to issue health care certificates and/or 
certified statements until adjudication of their credentialing status 
under this final rule.

How Did the Service Decide That the Form I-905 Application Fee Should 
Be $230?

    The Service believes that it is reasonable to identify a current 
application whose process is similar to the requirements outlined under 
Sec.  212.15(k) in order to select an appropriate fee to charge 
organizations who wish to be authorized to issue health care worker 
certifications. Organizations filing health care worker certification 
applications are requesting that the Service review their resources, 
including staffing and financial and material resources, their ability 
to evaluate foreign credentials, and their ability to conduct 
examinations outside the United States. The current Service petition 
whose process is most similar to the application process for 
authorization to issue health care worker certification is the Form I-
17, Petition for Approval of School for Attendance by Nonimmigrant 
Student, which is currently used by other organizations that seek 
approval to admit nonimmigrant students. In developing fees, the 
Service must comply with guidance provided in the Office of Management 
and Budget (OMB) Circular A-25. This guidance directs Federal agencies 
to charge the ``full cost'' of providing benefits when calculating fees 
that provide a special benefit to recipients. Section 6(d) of OMB 
Circular A-25 defined ``full cost'' as including ``all direct and 
indirect costs to any part of the Federal Government of providing a 
good, resource, or service.'' In its most recent review of immigration 
and naturalization benefits, the Service identified the current full 
cost of the Form I-17 to be $230. The Service determined that a $230 
fee for the Form I-17 would underwrite the Service's processing and 
administrative costs incurred in the Form I-17 adjudication process, 
such as staffing, training of Service personnel, and adjudication of 
the petitions. The Service will thus use $230 for the fee for the Form 
I-905 until the next biennial fee review, as required by the Chief 
Financial Officers Act of 1990, Public Law 101-576, 104 Stat. 2838.

What Are the Standards an Organization Must Meet in Order To Obtain 
Authorization To Issue Certificates?

    This proposed rule lists the standards an organization must 
substantially meet in order to be authorized to issue certificates at 
Sec.  212.15(k). An organization seeking approval to issue certificates 
or certified statements should submit evidence addressing each of the 
standards. These standards were developed by HHS in order to ensure 
that an organization meets the requirements contemplated by Congress. 
In drafting these standards, HHS drew upon the legislative history to 
IIRIRA, and drew extensively from the standards of the National 
Commission for Certifying Agencies, a nationally recognized body that 
accredits certifying organizations. There are four guiding principles 
to the standards:
    (1) The Attorney General should not approve a credentialing 
organization, unless the organization is independent and free of 
material conflicts of interest regarding whether an alien receives a 
visa;
    (2) The organization should demonstrate an ability to evaluate both 
the foreign credentials appropriate for the profession, and the results 
of examinations for proficiency in the English language appropriate for 
the health care field in which the alien will be engaged;
    (3) The organization should also maintain comprehensive and current 
information on foreign educational

[[Page 63319]]

institutions, ministries of health, and foreign health care licensing 
jurisdictions; and
    (4) If the health care field is one for which a majority of the 
States require a predictor examination (currently, this is done only 
for nursing), the organization should demonstrate an ability to conduct 
the examination outside the United States.
    Since the statute and the report language intend to ensure that 
aliens entering the United States for purposes of performing labor as a 
health care worker are of the same quality as United States trained 
workers, the HHS has determined that this can be assured by requiring 
that organizations issuing certificates be held to a select group of 
standards. The Service is concerned that in the absence of strict 
standards, unqualified organizations may obtain authorization from the 
Service to issue certificates that could ultimately have adverse 
consequences for health care in the United States. Since the provisions 
of section 212(r) of the Act appear to share with section 212(a)(5)(C) 
the goal of ensuring a high quality of health care service in the 
United States, the Service will use the same standards to adjudicate 
applications from credentialing organizations under either provision.
    The Service welcomes comments from the public and from interested 
organizations regarding the proposed standards. Specifically, the 
Service is concerned that an organization seeking authorization to 
issue certificates may meet most, but not all of the proposed 
standards. The Service seeks comment on the question of whether a 
prospective credentialing organization's inability to meet all of the 
proposed standards should preclude the Service from authorizing the 
organization to issue certificates. Also, the Service seeks public 
comment on the question of whether the proposed standards should be 
considered as guidelines, or as strict criteria that would preclude an 
organization from qualifying. Finally, the Service invites public 
comment on the question of how a prospective credentialing organization 
can meet the requirement that it demonstrate that it is independent and 
free of material conflicts of interest regarding whether an alien 
receives a visa.

How Will the Service Monitor Organizations Authorized To Issue 
Certificates or Certified Statements?

    The Service intends to develop a regulatory process to monitor 
credentialing organizations, including CGFNS. This process will ensure 
that a credentialing organization continues to follow the standards 
described in this rule. The Service proposes to review and reauthorize 
the credentialing organizations every 5 years. This rule proposes that 
the Service will notify the credentialing organization in writing of 
the results of the review and reauthorization. If the Service develops 
adverse information with respect to the performance of the 
organization, the Service may institute termination proceedings. 
Comments from the public regarding the frequency of review, e.g., 
review as part of the 5-year reauthorization, or an annual or biannual 
review, the nature of the review, and whether reviews, if conducted 
separately from reauthorization, should be targeted versus random, 
would be of great assistance in the development of a review process.
    In particular, as part of the review process, the Service proposes 
to assess whether an authorized credentialing organization has issued 
certificates in a timely manner so as to minimize any delays that may 
affect an alien's ability to proceed with his or her application for an 
immigration benefit, and to assess whether the fee charged for a 
certificate unduly impairs an alien's ability to seek an immigration 
benefit. Accordingly, the Service seeks comments on what might 
constitute a reasonable period of time within which a credentialing 
organization would be required to issue certificates, and regarding 
what methodology the Service should use in assessing whether a fee 
constitutes an obstacle to obtaining an immigration benefit.

How will the Service terminate an Organization's Authorization?

    Upon notification that an authorized credentialing organization has 
been convicted, or the directors or officers of an authorized 
credentialing organization have individually been convicted of a 
violation of state or federal laws, such that the fitness of the 
organization to continue to issue certificates is called into question, 
the Service shall automatically terminate authorization to issue 
certificates via notice to the credentialing organization.
    Upon receipt of information that the credentialing organization is 
no longer complying with the standards contained in Sec.  212.15(k), or 
upon receipt of information that termination of the organization's 
approval is otherwise warranted, the Service will issue a Notice of 
Intent to Terminate Authorization to Issue Certificates to Foreign 
Health Care Workers to the credentialing organization. The 
credentialing organization will be given 30 days from the date of the 
Notice of Intent to Terminate Authorization to Issue Certificates to 
Foreign Health Care Workers to rebut or cure the allegations made in 
the Service's notice.
    Thirty days after the date of the Notice of Intent to Terminate, 
the Service will request an opinion from HHS regarding whether the 
organization's authorization should be terminated. The Service shall 
accord HHS' opinion great weight in determining whether the 
authorization should be terminated. After consideration of the 
organization's response, if any, to the Notice of Intent to Terminate, 
and of HHS' opinion, the Service will provide the organization with a 
written decision.
    The Service's decision terminating an organization's authorization 
may be appealed to the Administrative Appeals Office pursuant to 8 CFR 
103.3. Termination of credentialing status will occur on the date of 
the decision and remain in effect until and unless the terminated 
organization reapplies, with fee, for credentialing status and is 
approved, or its appeal of the termination decision is sustained by the 
Administrative Appeals Office. There is no waiting period for an 
organization to re-apply for credentialing status.

What Actions Will the Service Take When It Finds That an Alien 
Certificate Holder Was Not Eligible To Receive the Certificate at the 
Time That It Was Issued?

    A credentialing organization must develop policies and procedures 
for revocation of certificates at any time if it finds that the 
certificate holder was not eligible to receive the certificate at the 
time it was issued. These policies and procedures include notification 
to the Service that a certificate has been revoked. The Service may 
then take any appropriate action, including revocation of the petition, 
and initiation of removal proceedings against the individual alien 
under section 240 of the Act.

What Will the Foreign Health Care Worker Certificate or Foreign Nurses 
Certified Statement Look Like?

    The proposed regulation at Sec.  212.15(f) describes the content of 
the certificate. The proposed regulation at Sec.  212.15(h) describes 
the content of the certified statement. They will generally contain the 
following information:
    (1) the name, designated point of contact to verify the validity of 
the certificate, address, and telephone number of the certifying 
organization;
    (2) the date the certificate was issued;
    (3) the health care occupation for which the certificate was 
issued; and

[[Page 63320]]

    (4) the alien's name, and date and place of birth.
    It should be noted that the certificate or certified statement does 
not constitute professional authorization to practice in that health 
care occupation.

What Are the Requisite English Language Scores for Certification?

    HHS, in consultation with DoED, is required to establish a level of 
competence in oral and written English appropriate for the health care 
field in which the alien will be engaged, as shown by an appropriate 
score on one or more nationally recognized, commercially available, 
standardized assessments of the applicant's ability to speak and write. 
The statute vests the Secretary of HHS with the ``sole discretion'' to 
determine the standardized tests and appropriate minimum scores. In 
developing the English language test scores, HHS consulted with DoED 
and appropriate health care professional organizations. HHS also 
examined a study sponsored in part by NBCOT entitled ``Standards for 
Examinations Assessing English as a Second Language.'' The scores 
reflect the current industry requirements for particular health care 
occupations.
    HHS has identified four testing services which conduct a nationally 
recognized, commercially available, standardized assessment as 
contemplated in the statute. The four testing services are the 
Educational Testing Service (ETS), the Michigan English Language 
Assessment Battery (MELAB), the Test of English in International 
Communication (TOEIC) Service International, and the International 
English Language Testing System (IELTS). The proposed regulation at 
Sec.  212.15(g) lists the tests and appropriate scores as determined by 
HHS for each occupation.
    As an alternative to listing the tests and appropriate scores by 
regulation or interim rule, the Service is considering designating, by 
a separate and comprehensive public notice in the Federal Register, the 
list of tests and appropriate scores. The Service would also maintain 
this list on its website at http://www.ins.gov. This method would allow 
the Service to update the list of tests and scores more quickly than 
through publication of interim rules. The Service seeks comment on 
whether this alternative method of providing the public with the lists 
of tests and appropriate scores would better serve the public.
    Other testing services are encouraged to submit information 
concerning their testing services to the Service, for HHS and DoED 
review, and credentialing organizations are encouraged to develop a 
test specifically designed to measure English language skills and to 
seek HHS approval of the test. This rule provides that the Service will 
notify the public of new approved testing services in the future by 
publishing an interim rule in the Federal Register.
    HHS has advised the Service that graduates of health profession 
programs in Australia, Canada (except Quebec), Ireland, New Zealand, 
the United Kingdom, and the United States are deemed to have met the 
English language requirements. HHS has determined that aliens who have 
graduated from these programs have the requisite competency in oral and 
written English. The level of English that the graduates of these 
health profession programs would need to graduate is deemed equivalent 
to the level that would be demonstrated by achieving the minimum 
passing score on the tests previously described. Nurses who are 
eligible to present an alternate certified statement under section 
212(r) of the Act also by definition have satisfied the English 
language requirements.
    Finally, HHS has advised the Service that the MELAB will no longer 
offer the English-speaking portion of its test outside the United 
States and Canada. As a result, individuals who seek to meet the 
English language requirements will be required to do one of the 
following:
    (1) Take the three tests offered by ETS; or
    (2) Take the TOEIC offered by TOEIC Service International, in 
addition to the test of spoken English and the test of written English 
offered by ETS; or
    (3) Take Parts 1, 2, and 3 of MELAB overseas and then take the test 
of spoken English offered by ETS; or
    (4) Take Parts 1, 2, and 3 of MELAB overseas and then take the test 
of spoken English in the United States or Canada; or
    (5) Take the IELTS examination.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. It is projected that there will be, at most, 21 small 
businesses that apply to the Service to issue certificates for health 
care workers. Although these small entities are required to pay a fee 
when submitting their applications, these small entities may recoup 
this expense if they charge aliens who must obtain a foreign health 
care worker certificate. The Service invites comment on whether and how 
this rule may have a significant impact on small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget (OMB) for review.

Executive Order 13132

    The rule will not have substantial direct effects on the States, on 
the relationship between the National Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with section 6 of Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

[[Page 63321]]

Paperwork Reduction Act of 1995

    The information collection requirements contained in this rule 
(Form I-905 (OMB Control Number 1115-0238) and the information required 
on the health care certificate or certified statement (OMB Control 
Number 1115-0226)) are being revised. Accordingly, these revisions will 
be submitted to the Office of Management and Budget for review in 
accordance with the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government Agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 212

    Administrative practice and procedures, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements. ]

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICER; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 522a; 8 U.S.C. 1101, 1103, 1304, 1356; 
31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., 
p.166; 8 CFR part 2.

    2. Section 103.1 is amended by:
    a. Removing the word ``and'' at the end of paragraph 
(f)(3)(iii)(NN);
    b. Removing the period at the end of paragraph (b)(3)(iii)(oo) and 
adding a semicolon and the word ``and'' in it's place, and adding and 
reserving paragraph (f)(3)(iii)(PP); and by
    c. Adding paragraphs (f)(3)(iii)(QQ) and (RR).
    The additions read as follows:


Sec.  103.1  Delegations of authority.

* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (PP) Reserved.
    (QQ) Application for authorization to issue certificates to foreign 
health care workers under 8 CFR part 215; and
    (RR) Termination of authorization to issue certificates to foreign 
health care workers under 8 CFR part 215.
* * * * *
    3. Section 103.7(b)(1) is amended by adding a new entry for the 
``Form I-905'' to the list in alpha/numeric sequence, to read as 
follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-905, Application for Authorization to Issue Certification 
for Health Care Workers--$230.00.
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    4. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227; 8 CFR part 2.

    5. Section 212.15 is revised to read as follows:


Sec.  212.15  Certificates for foreign health care workers.

    (a) General.
    (1) Any alien who seeks to enter the United States for the primary 
purpose of performing labor in a health care occupation listed in 
paragraph (c) of this section is inadmissible unless the alien presents 
a certificate from a credentialing organization, listed in paragraph 
(e) of this section.
    (2) In the alternative, an eligible alien who seeks to enter the 
United States for the primary purpose of performing labor as a nurse 
may present a certified statement as provided in paragraph (h) of this 
section.
    (3) A certificate or certified statement described in this section 
does not constitute professional authorization to practice in that 
health care occupation.
    (b) Inapplicability of the ground of inadmissibility. This section 
does not apply to:
    (1) Physicians;
    (2) Aliens seeking admission to the United States to perform 
services in a non-clinical health care occupation. A non-clinical care 
occupation is one in which the alien is not required to perform direct 
or indirect patient care. Occupations which are considered to be non-
clinical include, but are not limited to, medical teachers, medical 
researchers, and managers of health care facilities;
    (3) The spouse and dependent children of any immigrant or 
nonimmigrant alien;
    (4) Any alien applying for adjustment of status to that of a 
permanent resident under any provision of law other than under section 
245 of the Act, or any alien who is seeking adjustment of status under 
section 245 of the Act on the basis of a relative visa petition 
approved under section 203(a) of the Act, or any alien seeking 
adjustment of status under section 245 of the Act on the basis of an 
employment-based petition approved pursuant to section 203(b) of the 
Act for employment that does not fall under one of the covered health 
care occupations listed in paragraph (c) of this section.
    (c) Covered health care occupations. With the exception of the 
aliens described in paragraph (b) of this section, this section applies 
to any alien seeking admission to the United States to perform labor in 
one of the following health care occupations, regardless of where he or 
she received his or her education or training:
    (1) Licensed Practical Nurses, Licensed Vocational Nurses, and 
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 Technicians)
    (d) Presentation of certificate or certified statements.--(1) 
Aliens requiring a nonimmigrant visa. An alien described in paragraph 
(a) of this section who is applying for admission as a nonimmigrant 
seeking to perform labor in a health care occupation as described in 
this section must present a certificate or certified statement to a 
consular officer at the time of visa issuance and to the Service at the 
time of admission. The certificate or certified statement must be valid 
at the time of visa issuance and admission at a port-of-entry. An alien 
who has previously presented a foreign health care worker certification 
or certified statement for a particular health care occupation will

[[Page 63322]]

not be required to present it again at the time of visa issuance or 
admission to the United States.
    (2) Aliens not requiring a nonimmigrant visa. An alien described in 
paragraph (a) of this section who, pursuant to Sec.  212.1, is not 
required to obtain a nonimmigrant visa to apply for admission to the 
United States must present a certificate or certified statement as 
provided in this section to an immigration officer at the time of 
initial application for admission to the United States to perform labor 
in a particular health care occupation. An alien who has previously 
presented a foreign health care worker certification or certified 
statement for a particular health care occupation will not be required 
to present it again at the time of a subsequent application for 
admission.
    (3) Immigrant aliens. An alien described in paragraph (a) of this 
section, who is coming to the United States as an immigrant or is 
applying for adjustment of status pursuant to 8 U.S.C. 1255, section 
245 of the Act, to perform labor in a health care occupation described 
in paragraph (c) of this section, must submit the certificate or 
certified statement as provided in this section to the Service at the 
time of adjustment of status. An alien who has previously presented a 
foreign health care worker certification or certified statement for a 
particular health care occupation will not be required to present it 
again at the time of an adjustment of status.
    (4) Expiration of certificate or certified statement. The 
individual's certification or certified statement must be used for an 
initial admission into the United States, change of status within the 
United States, or adjustment of status within 5 years of the date that 
it is issued.
    (5) Revocation of certificate or certified statement. When a 
credentialing organization notifies the Service that an individual's 
certification or certified statement has been revoked, the Service will 
take appropriate action, including revocation of approval of any 
related petitions, consistent with the Act and Service regulations at 8 
CFR 205.2, 8 CFR 214.2(h)(11)(iii), and 8 CFR 214.6(d)(5)(iii).
    (e) Approved credentialing organizations for health care workers. 
An alien may present a certificate from any credentialing organization 
listed in this paragraph (e) with respect to a particular health care 
field.
    (1) The Commission on Graduates of Foreign Nursing Schools (CGFNS) 
is authorized to issue certificates under section 212(a)(5)(C) of the 
Act for nurses, physical therapists, occupational therapists, speech-
language pathologists and audiologists, medical technologists (also 
known as clinical laboratory scientists), medical technicians (also 
known as clinical laboratory technicians), and physician assistants.
    (2) The National Board for Certification in Occupational Therapy 
(NBCOT) is authorized to issue certificates in the field of 
occupational therapy pending final adjudication of its credentialing 
status under this part.
    (3) The Foreign Credentialing Commission on Physical Therapy 
(FCCPT) is authorized to issue certificates in the field of physical 
therapy pending final adjudication of its credentialing status under 
this part.
    (4) The Service will notify the public of additional credentialing 
organizations through interim rules published in the Federal Register.
    (f) Contents of the health care certificate. A certificate issued 
under section 212(a)(5)(C) of the Act must contain the following:
    (1) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certificate;
    (2) The date the certificate was issued;
    (3) The health care occupation for which the certificate was 
issued; and
    (4) The alien's name, and date and place of birth.
    (g) English language requirements. (1) With the exception of those 
aliens described in paragraph (g)(2) of this section, every alien must 
meet certain English language requirements in order to obtain a 
certificate. The Secretary of HHS has determined that an alien must 
have a passing score on one of five combinations of the four tests 
listed in paragraph (j)(3) of this section before he or she can be 
granted a certificate.
    (2) The following aliens are exempt from the English language 
requirements:
    (i) Alien nurses who are presenting a certified statement under 
section 212(r) of the Act.
    (ii) Aliens who have graduated from a college, university, or 
professional training school located in Australia, Canada (except 
Quebec), Ireland, New Zealand, the United Kingdom, and the United 
States.
    (3) The following English testing services have been approved by 
the Secretary of HHS:
    (i) Michigan English Language Assessment Battery (MELAB).
    (ii) Educational Testing Service (ETS).
    (iii) Test of English in International Communication (TOEIC) 
Service International.
    (iv) International English Language Testing System (IELTS).
    (4) Passing English test scores for various occupations.
    (i) Occupational and physical therapists. An alien seeking to 
perform labor in the United States as an occupational or physical 
therapist must obtain the following scores on the English tests 
administered by ETS: Test Of English as a Foreign Language (TOEFL): 
Paper-Based 560, Computer-Based 220; Test of Written English (TWE): 
4.5; Test of Spoken English (TSE): 50. The certifying organizations 
shall not accept the results of the MELAB, the TOEIC, or the IELTS for 
the occupation of occupational therapy or physical therapy.
    (ii) Registered nurses and other health care workers requiring the 
attainment of a baccalaureate degree. An alien coming to the United 
States to perform labor as a registered nurse (other than a nurse 
presenting a certified statement under section 212(r) of the Act) or to 
perform labor in another health care occupation requiring a 
baccalaureate degree (other than occupational or physical therapy) must 
obtain one of the following five combinations of scores to obtain a 
certificate:
    (A) ETS: TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE: 
50;
    (B) MELAB: Final Score 79; Oral Interview: 3+;
    (C) MELAB: Final Score 79; plus TSE: 50;
    (D) TOEIC Service International: TOEIC: 725; plus TWE: 4.0 and TSE: 
50; or
    (E) IELTS: 6.5 overall with a spoken band score of 7.0.
    (iii) Occupations requiring less than a baccalaureate degree. An 
alien coming to the United States to perform labor in a health care 
occupation that does not require a baccalaureate degree must obtain one 
of the following five combinations of scores to obtain a certificate:
    (A) ETS: TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE: 
50;
    (B) MELAB: Final Score 77; Oral Interview: 3+;
    (C) MELAB: Final Score 77; plus TSE: 50;
    (D) TOEIC Service International: TOEIC: 700; plus TWE 4.0 and TSE: 
50; or
    (E) IELTS: 6.0 overall with a spoken band score of 7.0.
    (h) Alternative certified statement for certain nurses.--(1) CGFNS 
is authorized to issue certified statements under section 212(r) of the 
Act for aliens seeking to enter the United States to perform labor as 
nurses. The Service will notify the public of new

[[Page 63323]]

organizations that are approved to issue certified statements through 
interim rules published in the Federal Register.
    (2) An approved credentialing organization may issue a certified 
statement to an alien if:
    (i) The alien has a valid and unrestricted license as a nurse in a 
State where the alien intends to be employed and such State verifies 
that the foreign licenses of alien nurses are authentic and 
unencumbered;
    (ii) The alien has passed the National Council Licensure 
Examination (NCLEX);
    (iii) The alien is a graduate of a nursing program in which the 
language of instruction was English;
    (iv) The nursing program was located in:
    (A) Australia, Canada (except Quebec), Ireland, New Zealand, South 
Africa, the United Kingdom, or the United States; or
    (B) Another country designated by unanimous agreement of CGFNS and 
any equivalent credentialing organizations which have been approved for 
the certification of nurses and which are listed at paragraph (e) of 
this section; and
    (v) The nursing program was in operation on or before November 12, 
1999, or has been approved by unanimous agreement of CGFNS and any 
equivalent credentialing organizations that have been approved for the 
certification of nurses.
    (3) An individual who obtains a certified statement need not comply 
with the certificate requirements of paragraph (f) or the English 
language requirements of paragraph (g) of this section.
    (4) A certified statement issued to a nurse under section 212(r) of 
the Act must contain the following information:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certified statement;
    (ii) The date the certified statement was issued; and
    (iii) The alien's name, and date and place of birth.
    (i) [Reserved]
    (j) Application process for credentialing organizations.--(1) 
Organizations other than CGFNS. An organization, other than CGFNS, 
seeking to obtain approval to issue certificates to health care 
workers, or certified statements to nurses shall submit Form I-905, 
Application for Authorization to Issue Certification for Health Care 
Workers, and all accompanying required evidence, to the Director, 
Nebraska Service Center, in duplicate with the appropriate fee 
contained in 8 CFR 103.7(b)(1). An organization seeking authorization 
to issue certificates or certified statements must agree to submit all 
evidence required by the Service and, upon request, allow the Service 
to review the organization's records related to the certification 
process. As required on Form I-905, the application must:
    (i) Clearly describe and identify the organization seeking 
authorization to issue certificates;
    (ii) List the occupations for which the organization desires to 
provide certificates;
    (iii) Describe how the organization substantially meets the 
standards described at 8 CFR 212.15(k);
    (iv) Describe the organization's expertise, knowledge, and 
experience in the health care occupation(s) for which it desires to 
issue certificates;
    (v) Provide a point of contact;
    (vi) Describe the verification procedure the organization has 
designed in order for the Service to verify the validity of a 
certificate; and
    (vii) Describe how the organization will process and issue in a 
timely manner the certificates.
    (2) Applications filed by CGFNS. (i) Prior to issuing certificates 
to nurses, physical therapists, occupational therapists, speech-
language pathologists, medical technologists (also known as clinical 
laboratory scientists), medical technicians (also known as clinical 
laboratory technicians), and physician assistants under section 
212(a)(5)(C) of the Act, or issuing certified statements to nurses 
under section 212(r) of the Act, CGFNS shall submit Form I-905 to the 
Director, Nebraska Service Center, to ensure that it will be in 
compliance with the regulations governing the issuance and content of 
certificates and certified statements.
    (ii) Prior to issuing certificates for any other health care 
occupation listed in paragraph (c) of this section, CGFNS shall submit 
Form I-905, Application for Authorization to Issue Certification for 
Health Care Workers, to the Director, Nebraska Service Center with the 
appropriate fee contained in 8 CFR 103.7(b)(1) for authorization to 
issue such certificates. The Service will evaluate CGFNS' expertise 
with respect to the particular health care occupation for which 
authorization to issue certificates is sought, in light of CGFNS' 
statutory designation as a credentialing organization.
    (3) Procedure for review of applications by credentialing 
organizations. (i) After receipt of Form I-905, the Director, Nebraska 
Service Center shall, in all cases, forward a copy of the application 
and supporting documents to the Secretary of HHS in order to obtain an 
opinion on the merits of the application. The Service will not render a 
decision on the request until the Secretary of HHS provides an opinion. 
The Service shall accord the Secretary of HHS' opinion great weight in 
reaching its decision. The Service may deny the organization's request 
notwithstanding the favorable recommendation from the Secretary of HHS, 
on grounds unrelated to the credentialing of health care occupations or 
health care services.
    (ii) The Service will notify the organization of the decision on 
its application in writing and, if the request is denied, of the 
reasons for the denial. Approval of authorization to issue certificates 
to foreign health care workers or certified statements to nurses will 
be made in 5 year increments, subject to the review process described 
at paragraph (l) of this section.
    (iii) If the application is denied, the decision may be appealed 
pursuant to 8 CFR 103.3 to the Associate Commissioner for Examinations.
    (k) Standards for credentialing organizations. The Service will 
evaluate organizations, including CGFNS, seeking to obtain approval 
from the Service to issue certificates for health care workers, or 
certified statements for nurses, under the following standards.
    (1) Structure of the organization. (i) The organization shall be 
incorporated as a legal entity.
    (ii) (A) The organization shall be independent of any organization 
that functions as a representative of the occupation or profession in 
question or serves as or is related to a recruitment/placement 
organization.
    (B) The Service shall not approve an organization that is unable to 
render impartial advice regarding an individual's qualifications 
regarding training, experience, and licensure.
    (C) The organization must also be independent in all decision 
making matters pertaining to evaluations and/or examinations that it 
develops including, but not limited to: policies and procedures; 
eligibility requirements and application processing; standards for 
granting certificates and their renewal; examination content, 
development, and administration; examination cut-off scores, excluding 
those pertaining to English language requirements; grievance and 
disciplinary processes; governing body and committee meeting rules; 
publications about qualifying for a certificate and its renewal; 
setting fees for application and all other services provided as part of 
the screening

[[Page 63324]]

process; funding, spending, and budget authority related to the 
operation of the certification organization; ability to enter into 
contracts and grant arrangements; ability to demonstrate adequate 
staffing and management resources to conduct the program(s) including 
the authority to approve selection of, evaluate, and initiate dismissal 
of the chief staff member.
    (D) An organization whose fees are based on whether an applicant 
receives a visa may not be approved.
    (iii) The organization shall include the following representation 
in the portion of its organization responsible for overseeing 
certification and, where applicable, examinations:
    (A) Individuals from the same health care discipline as the alien 
health care worker being evaluated who are eligible to practice in the 
United States; and
    (B) At least one voting public member to represent the interests of 
consumers and protect the interests of the public at large. The public 
member shall not be a member of the discipline or derive significant 
income from the discipline, its related organizations, or the 
organization issuing the certificate.
    (iv) The organization must have a balanced representation such that 
the individuals from the same health care discipline, the voting public 
members, and any other appointed individuals have an equal say in 
matters relating to credentialing and/or examinations.
    (v) The organization must select representatives of the discipline 
using one of the following recommended methods, or demonstrate that it 
has a selection process that meets the intent of these methods:
    (A) Be selected directly by members of the discipline eligible to 
practice in the United States;
    (B) Be selected by members of a membership organization 
representing the discipline or by duly elected representatives of a 
membership organization; or
    (C) Be selected by a membership organization representing the 
discipline from a list of acceptable candidates supplied by the 
credentialing body.
    (vi) The organization shall use formal procedures for the selection 
of members of the governing body which prohibit the governing body from 
selecting a majority of its successors.
    (vii) The organization shall be separate from the accreditation and 
educational functions of the discipline, except for those entities 
recognized by the Department of Education as having satisfied the 
requirement of independence.
    (viii) The organization shall publish and make available a document 
which clearly defines the responsibilities of the organization and 
outlines any other activities, arrangements, or agreements of the 
organization that are not directly related to the certification of 
health care workers.
    (2) Resources of the organization. (i) The organization shall 
demonstrate that its staff possess the knowledge and skills necessary 
to accurately assess the education, work experience, licensure of 
health care workers, and the equivalence of foreign educational 
institutions, comparable to those of United States-trained health care 
workers and institutions.
    (ii) The organization shall demonstrate the availability of 
financial and material resources to effectively and thoroughly conduct 
regular and ongoing evaluations on an international basis.
    (iii) If the health care field is one for which a majority of the 
States require a predictor test, the organization shall demonstrate the 
ability to conduct examinations in those countries with educational and 
evaluation systems comparable to the majority of States.
    (iv) The organization shall have the resources to publish and make 
available general descriptive materials on the procedures used to 
evaluate and validate credentials, including eligibility requirements, 
determination procedures, examination schedules, locations, fees, 
reporting of results, and disciplinary and grievance procedures.
    (3) Candidate evaluation and testing mechanisms. (i) The 
organization shall publish and make available a comprehensive outline 
of the information, knowledge, or functions covered by the evaluation/
examination process, including information regarding testing for 
English language competency.
    (ii) The organization shall use reliable evaluation/examination 
mechanisms to evaluate individual credentials and competence that is 
objective, fair to all candidates, job related, and based on knowledge 
and skills needed in the discipline.
    (iii) The organization shall conduct ongoing studies to 
substantiate the reliability and validity of the evaluation/examination 
mechanisms.
    (iv) The organization shall implement a formal policy of periodic 
review of the evaluation/examination mechanism to ensure ongoing 
relevance of the mechanism with respect to knowledge and skills needed 
in the discipline.
    (v) The organization shall use policies and procedures to ensure 
that all aspects of the evaluation/examination procedures, as well as 
the development and administration of any tests, are secure.
    (vi) The organization shall institute procedures to protect against 
falsification of documents and misrepresentation.
    (vii) The organization shall establish policies and procedures that 
govern the length of time the applicant's records must be kept in their 
original format.
    (viii) The organization shall publish and make available, at least 
annually, a summary of all screening activities for each discipline 
including, at least, the number of applications received, the number of 
applicants evaluated, the number receiving certificates, the number who 
failed, and the number receiving renewals.
    (4) Responsibilities to applicants applying for an initial 
certificate or renewal. (i) The organization shall not discriminate 
among applicants as to age, sex, race, religion, national origin, 
disability, or marital status and shall include a statement of 
nondiscrimination in announcements of the evaluation/examination 
procedures and renewal certification process.
    (ii) The organization shall provide all applicants with copies of 
formalized application procedures for evaluation/examination and shall 
uniformly follow and enforce such procedures for all applicants. 
Instructions shall include standards regarding English language 
requirements.
    (iii) The organization shall implement a formal policy for the 
periodic review of eligibility criteria and application procedures to 
ensure that they are fair and equitable.
    (iv) Where examinations are used, the organization shall provide 
competently proctored examination sites at least once annually.
    (v) The organization shall report examination results to applicants 
in a uniform and timely fashion.
    (vi) The organization shall provide applicants who failed either 
the evaluation or examination with information on general areas of 
deficiency.
    (vii) The organization shall implement policies and procedures to 
ensure that each applicant's examination results are held confidential 
and delineate the circumstances under which the applicant's 
certification status may be made public.
    (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. Such procedures shall be restricted 
to updating information on licensure to determine the existence of

[[Page 63325]]

any adverse actions and the need to re-establish English competency.
    (ix) The organization shall publish due process policies and 
procedures for applicants to question eligibility determinations, 
examination or evaluation results, and eligibility status.
    (x) The organization shall provide all qualified applicants with a 
certificate in a timely manner.
    (5) Maintenance of comprehensive and current information. (i) The 
organization shall maintain comprehensive and current information of 
the type necessary to evaluate foreign educational institutions and 
accrediting bodies for purposes of ensuring that the quality of foreign 
educational programs is equivalent to those training the same 
occupation in the United States. The organization shall examine, 
evaluate, and validate the academic and clinical requirements applied 
to each country's accrediting body or bodies, or in countries not 
having such bodies, of the educational institution itself.
    (ii) The organization shall also evaluate the licensing and 
credentialing system(s) of each country or licensing jurisdiction to 
determine which systems are equivalent to that of the majority of the 
licensing jurisdictions in the United States.
    (6) Ability to conduct examinations outside of the United States. 
An organization undertaking the administration of a predictor 
examination, or a licensing or certification examination shall 
demonstrate the ability to conduct such examination fairly and 
impartially.
    (7) Criteria for awarding and governing certificate holders. (i) 
The organization shall issue a certificate after the education, 
experience, license, and English language competency have been 
evaluated and determined to be equivalent to their United States 
counterparts. In situations where a United States nationally recognized 
licensure or certification exam is offered overseas, the applicant must 
pass such an examination prior to receiving a certification. In 
situations where both a licensure and certification examination are 
offered overseas, the licensure examination, or its equivalent, shall 
be the standard for receiving a certification, provided a license is 
required in at least a majority of the licensing jurisdictions in the 
United States. If a majority of the licensing jurisdictions do not 
require licensure, then the certification examination shall be the 
standard.
    (ii) The organization shall have policies and procedures for the 
revocation of certificates at any time if it is determined that the 
certificate holder was not eligible to receive the certificate at the 
time that it was issued. If the organization revokes an individual's 
certificate, it must notify the Service and the appropriate State 
regulatory authority with jurisdiction over the individual's health 
care profession.
    (8) Criteria for maintaining accreditation. (i) The organization 
shall advise the Service of any changes in purpose, structure, or 
activities of the organization or its program(s).
    (ii) The organization shall advise the Service of any major changes 
in the evaluation of credentials and examination techniques, if any, or 
in the scope or objectives of such examinations.
    (iii) The organization shall, upon the request of the Service, 
submit to the Service, or any organization designated by the Service, 
information requested of the organization and its programs for use in 
investigating allegations of non-compliance with standards and for 
general purposes of determining continued approval as an independent 
credentialing organization.
    (iv) The organization shall establish performance outcome measures 
that track the ability of the certificate holders to pass United States 
licensure or certification examinations. The purpose of the process is 
to ensure that certificate holders pass United States licensure or 
certification examinations at the same pass rate as graduates of United 
States programs. Failure to establish such measures, or having a record 
showing an inability of persons granted certificates to pass United 
States licensure examinations at the same rate as graduates of United 
States programs, may result in a ground for termination of approval. 
Information regarding the passage rates of certificate holders shall be 
maintained by the organization and provided to HHS on an annual basis, 
to the Service as part of the 5 year reauthorization application, and 
at any other time upon request by HHS or the Service.
    (v) The organization shall be in ongoing compliance with other 
policies specified by the Service.
    (l) Service review of the performance of certifying organizations. 
The Service will review credentialing organizations every 5 years to 
ensure continued compliance with the standards described in this 
section. Such review will occur concurrent with the adjudication of the 
request for reauthorization to issue health care worker certificates. 
The Service will notify the credentialing organization of the results 
of the review and request for reauthorization in writing. If the 
Service determines that an organization is not complying with the terms 
of its authorization or if other adverse information is developed, the 
Service may initiate termination proceedings.
    (m) Termination of certifying organizations. (1) If the Service 
determines that an organization has been convicted, or the directors or 
officers of an authorized credentialing organization have individually 
been convicted of the violation of state or federal laws, such that the 
fitness of the organization to continue to issue certificates or 
certified statements is called into question, the Service shall 
automatically terminate authorization for that organization to issue 
certificates or certified statements by issuing to the organization a 
notice of termination of authorization to issue certificates to foreign 
health care workers. The notice shall reference the specific conviction 
that is the basis of the automatic termination.
    (2) If the Service determines that an organization is not complying 
with the terms of its authorization or other adverse information is 
brought to the Service's attention, the Service will issue a notice of 
intent to terminate authorization to issue certificates to the 
credentialing organization. The Notice shall set forth reasons for the 
proposed termination.
    (i) The credentialing organization shall have 30 days from the date 
of the Notice of Intent to Terminate Authorization to rebut the 
allegations, or to cure the noncompliance identified in the Service's 
notice of intent to terminate.
    (ii) Thirty days after the date of the Notice of Intent to 
Terminate, the Service shall request an opinion from HHS regarding 
whether the organization's authorization should be terminated. The 
Service shall accord HHS' opinion great weight in determining whether 
the authorization should be terminated. After consideration of the 
rebuttal evidence, if any, and consideration of HHS' opinion, the 
Service will promptly provide the organization with a written decision. 
If termination of credentialing status is made, the written decision 
shall set forth the reasons for the termination.
    (3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to 
the Associate Commissioner for Examinations. Termination of 
credentialing status shall remain in effect until and unless the 
terminated organization reapplies for credentialing status and is 
approved, or its appeal of the termination decision is sustained by the 
Administrative Appeals Office. There is no waiting period for an

[[Page 63326]]

organization to re-apply for credentialing status.

PART 214--NONIMMIGRANT CLASSES

    6. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1282; 
sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Section 141 of the 
Compacts of Free Association with the Federated States of Micronesia 
and the Republic of the Marshall Islands, and with the Government of 
Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR part 
2.
    7. Section 214.1 is amended by adding a new paragraph (h) to read 
as follows:


Sec.  214.1  Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (h) Employment in a health care occupation. Any alien described in 
8 CFR 212.15(a) who is coming to the United States to perform labor in 
a heath care occupation described in 8 CFR 212.15(c) must obtain a 
certificate from a credentialing organization described in 8 CFR 
212.15(e). The certificate or certified statement must be presented to 
the Service in accordance with 8 CFR 212.15(d). In the alternative, an 
eligible alien seeking admission as a nurse may obtain a certified 
statement as provided in 8 CFR 212.15(h).

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

    8. The authority citation for part 245 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 
105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681, 8 CFR part 2.


Sec.  245.14  [Removed and reserved]

    9. Section 245.14 is removed and reserved.

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

    10. The authority citation for part 248 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
    11. Section 248.3 is amended by adding a new paragraph (i) to read 
as follows:


Sec.  248.3  Application.

* * * * *
    (i) Change of nonimmigrant status to perform labor in a health care 
occupation. A request for a change of nonimmigrant status filed by, or 
on behalf of, an alien seeking to perform labor in a health care 
occupation as provided in 8 CFR 212.15(c), must be accompanied by a 
certificate as described in 8 CFR 212.15(f), or if the alien is 
eligible, a certified statement as described in 8 CFR 212.15(h).

PART 299--IMMIGRATION FORMS

    12. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
    13. Section 299.1 is amended in the table by adding ``Form I-905'' 
to the list of prescribed forms in proper alpha/numeric sequence, to 
read as follows:


Sec.  299.1  Prescribed forms.

* * * * *

----------------------------------------------------------------------------------------------------------------
               Form No.                      Edition date                             Title
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
                I-905................  .......................  Application for Authorization to Issue
                                                                 Certification for Health Care Workers.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    14. Section 299.5 is amended in the table by:
    a. Adding the Form ``I-905'' in proper alpha/numeric sequence; and 
by
    b. Adding the entry ``Certificates for Health Care Benefits'' at 
the end of the table.
    The additions read as follows:


Sec.  299.5  Display of control numbers.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                                                                Current assigned
              INS Form No.                                   INS form title                     OMB control no.
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
I-905...................................  Application for Authorization to Issue                       1115-0238
                                           Certification for Health Care Workers.

                                                  * * * * * * *
                                          Certificates for Health Care Benefits..............          1115-0226
----------------------------------------------------------------------------------------------------------------



[[Page 63327]]

    Dated: October 7, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-25974 Filed 10-10-02; 8:45 am]
BILLING CODE 4410-10-P





Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: