Certificates for Certain Foreign Health Workers Now Required

The Department of Homeland Security (DHS) issued a final rule effective September 23, 2003 requiring all non-immigrants coming to the United States for the primary purpose of performing labor as health care workers (other than a physician), including those seeking a change in nonimmigrant status, to submit a healthcare worker certification in the form of a Visa Screen certificate. These positions include nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians and physician assistants. These certificates will serve to verify that their education, training, licensing, experience and English competency is comparable to that of American healthcare workers. With this regulation, both non-immigrant and immigrant health care workers are now required to obtain a Visa Screen certificate. Unfortunately in a time when the shortage of healthcare professionals is critical, DHS appears to be implementing more barriers for employer’s utilizing foreign workers in an effort to address the increasing shortage.

Under the revised regulation, an alien seeking to enter the United States for this purpose will be deemed 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). The certificate must verify 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 and are comparable with that required for an American healthcare worker;
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 healthcare work of the kind in which the alien will be engaged;
3. If a majority of States licensing the profession in which the alien intends to work recognizes 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 212(r) of the Act 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:
   1. The language of instruction was English; and
   2. The nursing program was located in a country which:
      1. 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
      2. 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
   3. The nursing program:
      1. Was in operation on or before November 12, 1999; or
      2. 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.

This new regulation will impose delays on the processing of healthcare worker petitions. It adds steps and documentation to the existing requirements that may not necessarily benefit anyone. The classifications most likely affected are the H, J, O, and TN visa classifications. Furthermore, there are risks that the educational credentials and practical experience of each applicant will not meet the standards as set forth by this regulation. There is also no clear timetable as to how long it takes to obtain one of these certificates.

The DHS says that it will continue to exercise its discretion and allow nonimmigrant healthcare workers affected by this new requirement sufficient time to obtain the requisite certification. For one year after publication of the final rule, the DHS will admit and approve applications for change of status and/or extension of stay for nonimmigrant healthcare workers. We will keep you posted on new developments concerning healthcare workers.

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