INS Proposed Final Rule on Certification of Foreign Health Care Workers

After more than six years since the enactment of legislation requiring certification of Foreign Health Care Workers for admission to the United States to work in their field, the INS has issued a proposed final rule governing such certification.

The law passed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), added a ground of inadmissibility (a ground for denial of authorization to enter the United States) for foreign health care workers. This ground of inadmissibility is based on the foreign national’s ability toprovide certification verifying that his or her education, training, licensing, experience, and English competency are comparable to that of American health care workers. The professions included in this certification requirement included nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians, and physician assistants.

The new INS rule specifies the organizations already authorized to issue these certificates and establishes procedures for authorization of additional organizations. Significantly, the rule adds the requirement that non-immigrant and immigrant, workers coming to the United States primarily to work as health care workers must obtain the certification. Previously, a blanket waiver to this certification requirement was given by the INS to non-immigrant workers. These certificates, known as "visa screen" certificates, verify the applicant’s education, training, license, and experience; competence in oral and written English, and (where applicable) passage of any tests for professions a majority of state licensing boards recognize as a good predictor of success on the profession’s licensing exam. The proposed regulation lists the following organizations as authorized to issue the certificates: (1) The Commission on Graduates of Foreign Nursing Schools (CGFNS) (authorized to issue certificates for nurses, physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists, medical technicians, and physician assistants); (2) The National Board of Certification in Occupational Therapy (NBCOT) (authorized to issue certificates to occupational therapists); and (3) The Foreign Credentialing Commission on Physical Therapy (FCCPT) (authorized to issue certificates to physical therapists). The new rule provides that the INS will issue interim rules to notify the public of additional credentialing organizations, and describes the procedure for additional organizations to apply and qualify for authorization. The rule also provides for periodic performance review of certifying organizations.

With respect to the English language requirements, the rule specifies the exemptions, and lists the applicable passing scores. The services approved for passing scores are the Michigan English Language Assessment Battery (MELAB) (though the MELAB English oral exam is being eliminated), Educational Testing Service (ETS), Test of English in International Communication (TOEIC), Service International, and International English Language Testing System (IELTS). Graduates from health profession programs in only Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States are exempt from the English language testing. The rule makes no exemption for graduates of programs in other English-speaking countries.

The greatest impactof this proposed rule on the employment of foreign nationals as health care workers will be elimination of the blanket waiver of certification for non-immigrants, as noted above. Specifically, as the regulations are now written, foreign health care workers currently in TN, H-1B, J or O status will be required to obtain the visa screen certificate prior to the filing of an application for extension of stay. This additional requirement should be taken into account when addressing the processing times for extensions. In addition, Health care workers outside the United States will now have to suffer the delays in organization processing of the visa screen certificate application before the sponsoring employer can even file a petition on their behalf. Also, foreign health care workers already in the United States in a nonimmigrant status, who travel outside of the U.S. for business or pleasure, may be denied entry upon return to the United States following their trip abroad, based on the fact that they do not have the visa screen certificate. One positive note is that the proposed rule exempts from the visa screen certificate requirement, a foreign national dependent accompanying a principal foreign health care worker to the United States, regardless of whether or not the dependent foreign national may intend to work in one of the specified health care occupations.

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