Department of Homeland Security Creates New Certification Requirements for Certain Nonimmigrant Health Care Workers
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)created certification requirements for foreign health care workers. Section 343 ofIIRIRA states that any alien, other than a physician, seeking to enter the United States forthe purpose of performing labor as a health care worker is inadmissible unless s/hepresents a certificate from the Commission on Graduates of Foreign Nursing Schools(CGFNS), or an equivalent independent foreign credentialing organization approved bythe Attorney General in consultation with the Secretary of the Department of Health andHuman Services, verifying all of the following:
(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 the appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant’s ability to speak and write English; and
(3) In 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 passed such a test, or has passed such an examination.
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Initially these requirements were only applied to immigrant health care workers.However, the Department of Homeland Security now interprets IIRIRA’s requirements toapply to nonimmigrant as well as to immigrant health care workers in the followingfields: Nurses (including Registered Nurses and Licensed Vocational/Practical Nurses);Occupational Therapists; Physical Therapists; Medical Technologists (Clinical 1Laboratory Scientists); Medical Technicians (Clinical Laboratory Technicians); SpeechLanguage Pathologists and Audiologists; and Physician Assistants.
How the Certification Works
An alien wishing to obtain the required health care certification would have to locate acertification agency. For a list of approved agencies with links to their websites, see Appendix A. As additional certification agencies are approved by the Department ofHomeland Security, notices to that effect will be placed in the Federal Register.
Once an alien has located an appropriate certifying agency, he/she should visit theagency’s website to discern that agency’s procedures for issuing the certification,sometimes referred to as Visa Screen. Each agency operates slightly differently.Nevertheless, each agency will require aliens to complete an application form along withthat agency’s application fee. In addition, the alien’s official transcripts must be sentdirectly to the certifying agency from the school. Validations of all of the alien’slicenses, past and present, must be sent to the certifying agency directly from the agencythat issued each license. Aliens must successfully complete an English languageproficiency test and have the scores directly forwarded to the certifying agency. Englishexaminations may be given by the following organizations: (1) Test of English as aForeign Language (TOEFL) http://www.toefl.org/; (2) Test of English for InternationalCommunications (TOEIC) http://www.toeic.com/; (3) International English LanguageTesting System (IELTS) http://www.ielts.org/. In addition to these requirements, nursesare also required to submit proof of passing either the CGFNS Qualifying Exam or theNCLEX-RN examination. Nurses are required to take either the CGFNS or the NCLEXexam, not both. Please note that the CGFNS Qualifying Exam is one of the prerequisitesfor certification, and not certification itself. It should not be confused with the VisaScreen certificate issued by CGFNS to prove that all of the certification requirementshave been met by the alien.
Utilizing the Grace Period:Strategic Timing
The Final Rule implementing the new nonimmigrant health care worker certificationrules was published in the Federal Register on July 26, 2003. The rule goes into effect onSeptember 23, 2003. However, the Department of Homeland Security is allowing agrace period during which foreign health care workers can apply for certification. Forone year following the date of publication of the Final Rule, or until July 26, 2004, theDepartment of Homeland Security will allow the admission, extension of stay, or changeof status for foreign health care workers who have not yet obtained the propercertification. However, foreign health care workers who are admitted to the U.S. or whochange status or extend stay without certification between September 23, 2003 and July26, 2004 will only be granted status for a period of one year, even if the alien’s statuswould normally permit a longer period of stay. The alien must obtain the certificationfrom CGFNS or another approved agency within one year of the date of a decision toadmit the alien or to extend the alien’s stay or change the alien’s status. Therefore if anuncertified alien currently in the United States as foreign health care worker leaves theUnited States and reenters after the effective date of the rule, then he or she may still be admitted during the grace period. His or her stay will be authorized for only one year from that date.
The grace period and the one-year period of readmission outlined by the Department ofHomeland Security can work either to the benefit or to the detriment of foreign healthcare workers, depending on the worker’s nonimmigrant classification and on the amountof time remaining on the alien’s current period of stay. The one-year period ofreadmission may hurt uncertified foreign health care workers who are currently in theUnited States on H-1B or H-1C status. If those workers have more than one year left oftheir status, they should be warned that if they depart the U.S. and return during the graceperiod, they will only be readmitted for a period of one year. It would be best for thoseworkers to remain in the United States so as to use the time left on their H status to worktoward certification. Conversely, TN nonimmigrant health care workers currently in theU.S., or H-1B nonimmigrants whose status is due to expire during the grace period, canbenefit from the one-year of temporary admission during the grace period. Take, forexample, a nurse who is currently in the U.S. in TN status. His status is due to expire inAugust of 2004. If he crosses the border on July 20, 2004, just prior to the end of thegrace period, then he will receive a new TN valid for one year, or until July 2005. Hewould then have that entire year to obtain his certification, but would not be permitted toleave and return to the United States during that year without first obtaining certification.
Nonimmigrant health care workers who are currently in the United States workingwithout certification should be warned that the new Final Rule implements therequirement that “all approved credentialing organizations obtain evidence of candidateeducation and licensure directly from the issuing authorities.” Thus, once a candidate hassubmitted an application for certification, there will be additional delays while thecredentialing organization reviews the candidate’s qualifications and issues the certification. Certification may be further delayed by the influx of certification applications following publication of the new Final Rule in the Federal Register. Aliensshould therefore leave sufficient time on their status to allow for processing delays of certification applications.
Certain Aliens Not Subject to New Certification Rules
While most nonimmigrant foreign health care workers are subject to new certificationrules, it must be noted that certain aliens are exempt from this requirement. Specificallyexempted by the Rule are physicians, F-1 nonimmigrants receiving practical training andJ-1 nonimmigrants coming to the United States to undertake a training program in amedical field. Dependent family members of health care workers are also exemptcertification requirements. Furthermore, the language of the Final Rule indicates thatonly nonimmigrants whose *primary purpose* in coming to the U.S. is to perform dutiesas a health care worker is required to obtain the above-noted certification. Aliens whoenter the United States in dependent status, such as an E-2 spouse or an L-2 spouse, areentering the United States for the primary purpose of accompanying their spouses.However, they are allowed to obtain work authorization (or an EAD card). The same istrue of derivative I-485 applicants who obtain EAD cards. These individuals would notbe subject to the new certification requirements, even if they obtained jobs as health care 3workers, since they are not entering the U.S. for the primary purpose of performing laborin a health care occupation.
In addition to the aliens completely exempt from the certification rules, some aliens areexempt from certain requirements. For example, aliens who received their medicaleducation at U.S. institutions of higher learning are still required to obtain certification.However, BCIS is creating a more streamlined application process for these individuals.It has not yet been determined how this streamlined process will work, how long it willtake, or how much it will cost. In addition to the stream-lined process for American-educated foreign healthcare workers, the Final Rule exempts aliens who graduated from acollege, university, or a professional training school located in Australia, Canada (exceptQuebec), Ireland, New Zealand, the United Kingdom or the United States from theEnglish language tests.
BCIS Adjudications Office Issues Relaxed Interpretations of I-140 Degree Equivalency Requirements
Efren Hernandez, Director of Business and Trade Services at the BCIS Office ofAdjudications, periodically provides his opinion on the interpretation of immigrationlaws that are unclear or open to interpretation. In a recent letter to a member of theAmerican Immigration Lawyers Association (AILA), Mr. Hernandez opined that I-140beneficiaries who are required to have a U.S. degree or its foreign equivalent may satisfythe degree requirement by having multiple foreign degrees which, upon evaluation by acredential evaluation agency, are determined to be equivalent to a U.S. bachelor degree.
In a separate letter to a different AILA member, Mr. Hernandez stated that acceptanceinto a masters degree program by a U.S. institution of higher education that requirescompletion of a U.S. bachelors degree could possibly indicate that the alien has theequivalent of a U.S. bachelors degree. However, he stated that this scenario is notcontemplated in the regulations and therefore cannot be answered definitively.
Efren Hernandez’s opinions are generally treated with deference by BCIS service centers,but service centers are not required to adopt his opinions. Therefore, his opinions arehelpful but not 100% reliable.
Visa Waiver Program Applicants Must Have Machine Readable Passports as of October 1, 2003
For security reasons, the U.S. Department of State is requiring that by October 1, 2003,all Visa Waiver Program (VWP) applicants carry machine readable passports. Any VWPapplicants found without a machine readable passport after that date will be required toobtain a B-1 or B-2 visa before attempting to enter the Untied States. This newrequirement includes all categories of passports, including regular passports, diplomatic,and official passports.
Nonimmigrant Visa Applicants Should Expect Processing Delays
Consular processing for a nonimmigrant visa is becoming a tougher and tougherprospect. For starters, the State Department is now requiring personal interviews of allnonimmigrant visa applicants. Immigrant visa applicants have always been required toappear at the U.S. Consulate in his or her home country for a personal interview.However, the State Department has had a long standing policy of waiving the personalinterview requirement for nonimmigrant visa applicants. In May of 2003, the StateDepartment amended its regulations so that personal interviews are now required for allnonimmigrant visa applicants, with few exceptions1. This requirement was implementedin a department-wide effort to increase U.S. security.
The State Department requested last summer that consular posts increase the amount ofnonimmigrant visa interviews conducted, and many posts, most notably London,England, altered their interviewing procedures to accommodate this request. Other postsdid not. As a result, the posts that did not make accommodations last summer are beingforced to conduct the personal interviews, and their case loads have dramaticallyincreased. For example, the U.S. Embassy in Tel Aviv, Israel just recently incorporatedthe personal interview requirement, and consular processing for nonimmigrant visas hasslowed down dramatically.
In addition to the personal interview requirement, the State Department has increased itslevel of scrutiny of applicants, particularly those engaged in industries that pose apotential threat to U.S. security, such as weapon manufacturing or intelligence industries.Nonimmigrant visa applicants from countries designated as state sponsors of terrorismare also subject to additional scrutiny. As a result, many nonimmigrant visa applicantswho apply for visas in their home countries can expect lengthy processing delays.
In light of backlogs in nonimmigrant visa processing, however, the Department of Statehas issued instructions to posts that they must prioritize students and exchange visitorswhen scheduling interviews this summer. This is to ensure that aliens whose schoolingor exchange programs have a definite start date do not end up late in coming to the U.S.
Pending Legislation Would Destroy the L-1 Nonimmigrant Category, if Passed
On July 10, 2003, a piece of legislation was introduced to the House of Representativesby Rosa DeLauro (D-CT) that, if passed, would destroy the L-1 nonimmigrant category.The bill, H.R. 2702 (http://www.shusterman.com/pdf/hr2702.pdf), would subject L-1wages to review by the Department of Labor in a manner similar to that of H-1Bspecialty workers. The L-1 program was initially exempted from these requirements indeference to multinational companies. Multinational companies were given the leewayto transfer their key employees, including managers, executives, and employees with
The most notable exception is for an alien applying in his/her home country for a nonimmigrant visa inthe same category as his/her previous nonimmigrant visa.
specialized knowledge of company products or procedures, to their related United Statescompanies. Given the highly specialized nature of work performed by the key employeesof multinational companies, it was assumed that L-1 wages would be high. And even ifthey were not high, it was considered the prerogative of the company to determine thewages. Department of Labor (DOL) wage determinations were therefore deemedunnecessary.
The L-1 Reform Bill would also create degree requirements for L-1 workers. L-1’s arenot currently required to have degrees, in recognition of the fact that many of the keyemployees of multinational companies have gained their expertise through experience onthe job, or in the case of many managers and executives of small multinationalcompanies, through entrepreneurial ability. Indeed, if DOL wage determinations anddegree requirements are applied to L-1’s, there will be little distinction between the L-1and the H-1B nonimmigrant categories. For all practical purposes, the L-1 categorywould cease to exist.
If the bill is passed, then people currently in the U.S. in L-1 status would most likely bepermitted to stay here until their statuses expire. However, they would not be permittedto extend their stay unless they had met the new requirements. It remains to be seen whatwill happen with the bill.
I-485 Portability Rules: Clear As Mud
In the last edition of Immigration Newswire, we ran an article about the difficulties ininterpreting the I-485 portability rules in light of the new I-140/I-485 concurrent filingprocedures. In short, the American Competitiveness in the 21st Century Act (AC21)allows Adjustment of Status applicants to change employers once their Adjustmentapplications have been filed and remained unadjudicated for 180 days or more. Theability to change employers is referred to as “portability.” Portability provisions onlypermit adjustment applicants to work in a new position that is the “same or similar” to theposition described in the applicant’s approved Labor Certification. It is unclear whetherthe portability provisions of AC21 apply to nonimmigrants whose status does not requirethat a Labor Certification be filed.
AC21 was passed prior to the advent of concurrent filing for forms I-140 and I-485.When AC21 was passed, it was assumed that the I-140 would be approved prior to thefiling of an I-485 application. AC21 therefore never addressed the possibility that the I-140 could be denied or withdrawn after an Adjustment of Status applicant had usedportability provisions to change employers.
When concurrently filed I-140 & I-485 applications both remain unadjudicated after 180days, an applicant is arguably eligible to change employers under AC21. However,potential problems arise for an alien who uses I-485 portability provisions prior toadjudication of his or her I-140 petition. If the I-140 petition is subsequently denied, the 6I-485 will also have to be denied2. A denial can accrue if the petitioning employerdecides not to respond to an RFE. The employee (beneficiary) is not a party to thepetition and cannot respond to the RFE, even if the employee has access to theinformation requested in the RFE.
The potential problems created by the conflict between AC21 and the concurrent filingrules were addressed in an August 4, 2003 memo issued by BCIS(http://www.ilw.com/lawyers/immigdaily/doj_news/2003,0818-I140.pdf). The memostates that if an employer withdraws an approved I-140 petition on or after the date onwhich an alien’s I-485 application has been pending for 180 days, the approved I-140petition will remain valid for AC21 (portability) purposes. However, if the I-140petitioner withdraws an approved petition prior to the date on which an I-485 applicationhas been pending for 180 days, AC21 portability rules cannot be invoked.
While the stunning clarity of the memo’s logic cannot be denied, it fails to address themajor issues at hand. Namely, the memo fails to address situations in which an alieninvokes AC21 portability rules prior to approval of the underlying I-140 petition.Therefore until regulations are written, we recommend that aliens exercise caution whenchanging employers using portability rules.
New Nonimmigrant Student Categories Created
On November 2, 2002, President Bush signed the “Border Student Commuter Act of2002” (H.R. 4967) into law. The law created a border commuter nonimmigrantclassification under the F and M visa categories for Canadian and Mexican nationals whomaintain residence in their country of nationality and commute to the U.S. for full- orpart-time study. The study may be vocational or nonacademic in nature.
On August 11, 2003, the Department of Homeland Security published a Final Rule in theFederal Register creating new nonimmigrant classifications to accommodate commuterstudents. The new categories are F3 and M3. The rule, and the new classifications, tookeffect on August 11, 2003, the date of publication of the rule. The family members of F3and M3 border commuter students are not entitled to derivative F2 or M2 status.
Appendix A
1. The Commission on Graduates of Foreign Nursing Schools (CGFNS) is authorized to issuecertifications for nurses, physical therapists, occupational therapists, speech-language pathologists andaudiologists, medical technicians (also known as clinical laboratory scientists), and physician assistants.
Link: http://www.cgfns.org/cgfns/index.html
2. The National Board for Certification in Occupational Therapy (NBCOT) is authorized to issuecertification for occupational therapists, pending final adjudication of credentialing status by theDepartment of Homeland Security.
Link: http://www.nbcot.org/
3. The Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issuecertification in the field of physical therapy, pending final adjudication of credentialing status by theDepartment of Homeland Security.
Link: http://www.fccpt.org/
