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[Federal Register: December 17, 2002 (Volume 67, Number 242)]
[Rules and Regulations]               
[Page 77158-77159]
From the Federal Register Online via GPO Access []



22 CFR Part 40

[Public Notice 4218]

Visas: Uncertified Foreign Health-Care Workers

AGENCY: Department of State.

ACTION: Interim rule with request for comments.


SUMMARY: This rule changes the requirements pertaining to the issuance 
of visas to certain foreign health care workers. It provides that an 
alien who seek to enter the United States to perform health-care 
services (other than a physician) is excludable unless the alien 
presents a certificate establishing the alien's competency in a 
specific health care field issued by the Commission on Graduates of 
Foreign Nursing Schools (CGFNS) or another credentialing organization 
approved by the Attorney General through the Immigration and 
Naturalization Service (INS). The promulgation of this rule is 
necessary in order to comply with U.S. laws regarding the 
inadmissibility of aliens into the United States. The rule will result 
in the imposition of a requirement for certain visa applicants seeking 
to enter the United States as health care workers to obtain 
documentation of their professional credentials and qualifications from 
approved private credentialing agencies and provide that documentation 
to a consular officer in order to qualify for visa issuance.

DATES: Effective date: This interim rule is effective on December 17, 
    Comment date: The Department will consider comments submitted on or 
before February 18, 2003.

ADDRESSES: Please submit comments in duplicate to Chief, Legislation 
and Regulations Division, Visa Services, Department of State, 20520-
0106, by e-mail to, or by fax at 202-663-3898.

FOR FURTHER INFORMATION CONTACT: Penafrancia D. Salas, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, 202-663-2878.


What Is the Authority for This Rule?

    Section 343 of the Illegal Immigration Reform and Immigrant 
Responsibility Ac (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, 636-37 
(1996), created a new ground of inadmissibility and visa ineligibility 
now codified as section 212(a)(5)(C) of the Immigration and Nationality 
Act (INA), 8 U.S.C. 1182(a)(5)(C). It provides that, subject to section 
212(r) of the INA, an alien who seeks to enter the United States for 
the purpose of performing labor as a health care worker, other than as 
a physician, is excludable (inadmissible) unless the alien presents to 
the consular officer a certificate from the CGFNS or a certificate from 
an equivalent independent credentialing organization approved by the 
Attorney General in consultation with the Secretary of Health and Human 
Services (HHS) verifying that:
    (a) The alien's education, training, license, and experience meet 
all applicable statutory and regulatory requirements for admission to 
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; and
    (b) 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 the 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; 
    (c) If a majority of States licensing the profession in which the 
alien intends to work recognize a test predicting the success on the 
profession's licensing or certification examination, that the alien has 
passed such an examination.
    INA section 212(r) mandates separate certification procedures for 
certain aliens seeking to enter the United States to perform nursing 
services. In general, such procedures apply to those aliens who already 
possess a valid State license and who received their nursing training 
in a country where the quality of education and the English proficiency 
of nursing graduates have been recognized by the CGFNS as meeting its 

[[Page 77159]]

How Is the Department Amending Its Regulations?

    The Department is adding a new section to its regulations at 22 CFR 
40.53 that instructs a consular officer to obtain the appropriate 
statutorily required certification of competency from an alien seeking 
to enter the United States to perform services in certain health care 
occupations, prior to issuing an immigrant or a nonimmigrant visa to 
the alien.

Does the Department Intend To Continue To Exercise Its Discretion Under 
Section 212(d)(3)(A) of the INA to Temporarily Waive This 
Inadmissibility for Nonimmigrant Aliens Seeking To Enter the United 
States as Health Care Workers Where There May Be Conflict With the 
North American Free Trade Agreement (NAFTA)?

    The Department and INS have exercised their joint discretion under 
section 212(d)(3)(A) to waive the certification requirement for 
nonimmigrants due to a possible conflicting obligation of the United 
States under NAFTA. The Department will continue to use its discretion 
to temporarily waive this inadmissibility for nonimmigrant health care 
workers until concerned Executive branch agencies resolve the apparent 

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department's implementation of this regulation as an interim 
rule is based upon the ``good cause'' exceptions set forth at 5 U.S.C. 
553(b)(3)(B) and 553(d)(3). The amendment to the regulation simply 
implements a legislative mandate without interpretation and codifies 
current practices. Therefore, the Department has determined that it is 
appropriate to publish this rule as an interim rule. Nevertheless, the 
Department will solicit comments from the public.

The Regulatory Flexibility Act

    The Department of State, pursuant with the Regulatory Flexibility 
Act (5 U.S.C. 605(b), has assessed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of 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 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

    Although this rule is being promulgated in conjunction with the 
Immigration and Naturalization Service, a domestic agency, the 
Department of State does not consider this rule to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. The Department has reviewed the 
regulation to ensure its consistency with the regulatory philosophy and 
principles set forth in that Executive Order.

Executive Order 13132

    This regulation 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.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 

List of Subjects in 22 CFR Part 40

    Aliens, Nonimmigrants, Immigrants, Documentation, Passports and 

    For the reasons set forth in the preamble, the Department is 
amending the regulations at 22 CFR part 40 to read as follows:


    1. The authority citation for part 40 shall continue to read:

    Authority: 8 U.S.C. 1104.

    2. Section 40.53 is added to read as follows:

Sec.  40.53  Uncertified Foreign Health-Care Workers.

    (a) Subject to paragraph (b) of this section, a consular officer 
must not issue a visa to any alien seeking admission to the United 
States for the purpose of performing services in a health care 
occupation, other than as a physician, unless, in addition to meeting 
all other requirements of law and regulation, the alien provides to the 
officer a certification issued by the Commission On Graduates of 
Foreign Nursing Schools (CGFNS) or another credentialing service that 
has been approved by the Attorney General for such purpose, which 
certificate complies with the provisions of sections 212(a)(5)(C) and 
212(r) of the Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. 1182(r), 
respectively, and the regulations found at 8 CFR 212.15.
    (b) Paragraph (a) of this section does not apply to an alien:
    1. Seeking to enter the United States in order to perform services 
in a non-clinical health care occupation as described in 8 CFR 
212.15(b)(1); or
    2. Who is the immigrant or nonimmigrant spouse or child of a 
foreign health care worker and who is seeking to accompany or follow to 
join as a derivative applicant the principal alien to whom this section 
applies; or
    3. Who is applying for an immigrant or a nonimmigrant visa for any 
purpose other than for the purpose of seeking entry into the United 
States in order to perform health care services as described in 8 CFR 

    Dated: November 29, 2002.
George C. Lannon,
Acting Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 02-31603 Filed 12-16-02; 8:45 am]