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[Federal Register: October 20, 2008 (Volume 73, Number 203)]
[Rules and Regulations]               
[Page 62197-62198]
From the Federal Register Online via GPO Access []



22 CFR Part 40

[Public Notice 6395]
RIN 1400-AB68

Uncertified Foreign Health-Care Workers

AGENCY: Department of State.

ACTION: Final rule.


SUMMARY: This rule adopts as final without change the Department's 
interim rule published on December 17, 2002, at 67 FR 77158. The rule 
changes the requirements pertaining to the issuance of visas to certain 
health care workers. Certain foreign health care workers now need to 
present certificates establishing competency in a specific health care 
field. Certification is issued by the Commission on Graduates of 
Foreign Nursing Schools (CGFNS) or other credentialing organizations 
that have been approved by the Secretary of Homeland Security (DHS) in 
consultation with the Secretary of Health and Human Services (HHS). 
This rule facilitates greater uniformity between the regulations of DHS 
and the Department of State.

DATES: Effective Date: Effective October 20, 2008.

FOR FURTHER INFORMATION CONTACT: Penafrancia D. Salas, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106. Phone: 202-663-1202. E-mail: (


What Is The Background of This Rule?

    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 
ineligible for visa issuance and is inadmissible to the United States 
unless the alien presents to the consular officer a certificate from 
the CGFNS or a certificate from an equivalent independent credentialing 
organization approved by DHS in consultation with HHS that indicates 
the following:
    (a) The alien's education, training, license, and experience:
    1. Meet all applicable statutory and regulatory requirements for 

[[Page 62198]]

into the United States under the specified visa;
    2. Are comparable with those required for an American health care 
worker of the same type;
    3. Are authentic; and,
    4. In the case of a license is unencumbered (not burdened or 
    (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 in 
which the alien will be engaged. HHS's finding is to be based on an 
established score on one or more nationally recognized, commercially 
available, standardized assessments; and,
    (c) 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 the certification 
    The Immigration and Nationality Act section 212(r) created an 
alternative certification process 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, 
unrestricted, authentic and unencumbered license as a nurse in a state 
where the alien intends to be employed 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 standards.
    On July 25, 2003, the Department of Homeland Security published in 
the Federal Register at 68 FR 43901 its final rule establishing at 8 
CFR 212.15 the regulations governing the certification process for 
aliens seeking to enter to provide labor as health care providers. 
Aliens in covered health care occupations (with the exception of aliens 
who, under 8 CFR 212.15(b) are not subject to the certification 
requirement of 212(a)(5)(C) and 212(r) of the INA (8 U.S.C. 
1182(a)(5)(C) and 8 U.S.C. 1182(r) respectively, and the Department of 
Homeland Security Regulations at 8 CFR 212.15) specified at 8 CFR 
212.15(c)) are inadmissible.


Were Comments Solicited on This Rule?

    Yes, comments were solicited. Although the Department received four 
comments in response to this rule, the comments raised issues regarding 
the hardship on the individual commenters that the statutory 
requirements imposed. For example, several comments focused on the 
shortage of nurses in the United States and the need for foreign nurses 
to make up the shortage. Other comments focused on issues relating to 
the licensure of nurses.

Regulatory Findings

Administrative Procedure Act

    The Department's implementation of the interim rule was based upon 
the ``good cause'' exception found at 5 U.S.C. 553(b)(B). Section 
553(b) of the APA authorizes agencies to dispense with certain notice 
procedures for rules when they are ``impracticable, unnecessary, or 
contrary to public interest.'' Nevertheless, the Department solicited 
public comments. This rule makes final an amendment to the regulation 
that implemented a legislative mandate that codified current practices.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department of State, pursuant to 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.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires 
agencies to prepare a statement before proposing any rule that may 
result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private sector. This rule will 
not result in any such expenditure, nor will it significantly or 
uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. 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 
import markets.

Executive Order 12866: Regulatory Review

    The Department of State has reviewed this rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866 and has determined that the benefits of the 
regulation justify its costs. The Department does not consider the rule 
to be an economically significant action within the scope of section 
3(f)(1) of the Executive Order since it is not likely to have an annual 
effect on the economy of $100 million or more or to adversely affect in 
a material way the economy, a sector of the economy, competition, jobs, 
the environment, public health or safety, or State, local or tribal 
governments or communities.

Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders No. 12372 
and No. 13132.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the proposed regulations in light of 
sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
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 

Accordingly, the interim rule amending 22 CFR part 40 published at 67 
FR 77158, December 17, 2002 is adopted as final without change.

    Dated: October 6, 2008.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs Department of State.
 [FR Doc. E8-24474 Filed 10-17-08; 8:45 am]