DOCUMENT NUMBER: FR 73-98

FEDERAL REGISTER CITE: 63 FR 55007

DATE OF PUBLICATION: October 14, 1998

BILLING CODE 4410-01

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212 and 245

[INS-1879-97]

RIN 1115-AE73

Interim Procedures for Certain Health Care Workers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule, which has been drafted in consultation with the U.S. Department of Health and Human Services (HHS), amends regulations of the Immigration and Naturalization Service (Service or INS) in order to implement, on a temporary basis, certain portions of section 343 of the Illegal Immigration Reform and Immigrant Responsibility act of 1996 (IIRIRA) as they relate to prospective immigrants. Section 343, which was codified at section 212(a)(5)(C) of the Immigration and Nationality Act (Act or IN A), provides that aliens coming to the United States to perform labor in covered health care occupations (other than as a physician) are inadmissible unless they present a certificate relating to their education, qualifications, and English language proficiency. This requirement is intended to ensure that aliens possess proficiency in the skills that affect the provision of health care services in the United States. This rule establishes a temporary mechanism to allow applicants for immigrant visas or adjus tment of status in the fields of nursing and occupational therapy to satisfy the requirements of section 343 on a provisional basis. The Service expects to publish a proposed rule in the near future which will implement in full the provisions of section 343.

DATES:     Effective date : This rule is effective December 14, 1998.

Comment date : Written comments must be submitted on or before February 11, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference the INS No. 1879-97 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer, Benefits Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 104-208. Section 343 of IIRIRA created a new ground of inadmissibility at section 212(a)(5)(C) of the Act for aliens coming to the United States to perform labor in certain health care occupations. Pursuant to section 343, any alien coming to the United States for the purpose of performing labor as a health care worker, other than as a physician, is inadmissible unless the al ien presents to the consular officer, or, in the case or adjustment of status, the Attorney General, 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 HHS.

    Under section 343, the certificate must verify that: (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; are authentic and, in the case of a license, the alien's license is unencumbered; (2) the alien has the level of competence in oral and written English considered by the Secretar y of HHS, in consultation with the Secretary of Education (DoE), to be appropriate for 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 applicants ability to speak and write English; and, finally, (3) if a majority of states licensing the profession in which the alien intends to work recognize a test predicting the alien's success on the profession's licensing or cer tification examination, the alien has passed such a test, or has passed such an examination.

    Section 343 raises a number of important and difficult issues as to its scope and proper implementation and requires extensive coordination between the Service and other Federal agencies. Prior to the publication of this rule, the Service met with representatives of HHS, as well as the United States Trade Representative, the Department of Labor (DOL), the Department of State (DOS), the DoE, the Department of Commerce (DOC), the CGFNS, the National Board for Certification in Occupational Therapy (NBCOT), va rious professional organizations representing these health care occupations, and many other interested parties.

The Purpose of the Interim Rule

    The purpose of this interim rule is to establish temporary procedures which will: (1) Allow the immigration of certain health care workers into the United States on a permanent basis in order to prevent the disruption of critical health care services to the public; (2) provide for the immigration of certain health care workers who were petitioned on a permanent basis prior to the enactment of IIRIRA; and (3) establish a temporary mechanism to ensure that nurses and occupational therapists immigrating to thi s country have education, experience, and training which are equivalent to a United States worker in a similar occupation.

    This interim rule provides a temporary mechanism for implementing section 343 with respect to nurses and occupational therapists. Aliens who obtain a certificate in accordance with this interim rule will be deemed to have satisfied the education, training, and licensing requirements of section 343. Credentialing organizations verifying that an alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States under the classi fication specified in the application are required to determine, to the best of their ability, whether the alien appears to be classifiable under section 203(b) of the Act. (The Service has substituted the term "admission" for the term "entry," in conformity with section 308(f) of Pub. L. 104-208 which amended the Act.) Although credentialing organizations are required to make certain verifications in accordance with this interim rule, the Service is not in any way deferring or delegating to the credentiali ng organizations the authority to make binding determinations regarding the alien's admissibility into the United States.

    The decision to include nursing and occupational therapy in this interim rule was based on information from DOL that there is a sustained level of demand for foreign-trained workers in these two occupations. Moreover, organizations with an established track record in providing credentialing services exist for these two occupations. For the purposes of this interim rule, the Service finds that these two criteria allow the implementation of section 343 of IIRIRA on a temporary basis.

    For the purposes of this interim rule, the term "sustained level of demand" means the presence of an existing demand for foreign health care workers in a particular occupation that is expected to continue in the foreseeable future.

    The term "organizations with an established track record" means, for the purposes of this interim rule, an organization which has a record of issuing actual certificates, or documents similar to a certificate, that are generally accepted by the state regulatory bodies as certificates that an individual has met certain minimal qualifications.

    The two organizations identified in this rule, the CGFNS for nurses and the NBCOT for occupational therapists, are organizations which have been issuing certificates, or similar documents, for a period of years and which have attained credibility with the various professional and regulatory bodies which deal with the two occupations listed in this rule. Therefore, the NBCOT and the CGFNS both meet the two criteria identified for inclusion in this interim rule. The Service has not identified other credenti aling organizations which have an established track record in providing credentialing services for these two occupations other than the two organizations discussed in this rule.

    During the period of time that the interim rule is in effect, the Service will entertain any requests to issue certificates from an organization which demonstrates a proven track record in issuing certificates for a health care occupation and where there is a sustained level of demand for foreign-trained individuals. Such organizations are encouraged to contact the Service at the address provided earlier in the rule.

    The implementation of this interim rule on a limited basis also allows the Service additional time to obtain comment on a number of issues which extend beyond near-term immigration issues in nursing and occupational therapy to other policy concerns, such as the overall impact on the public health and the domestic labor market for a variety of health care occupations.

    Given the complex nature of the requirements of section 343, the Service will publish a proposed rule in the near future which will, among other things, list all the occupations covered by section 343, further describe the procedures for obtaining and presenting the certificates, describe the standards required for an organization to obtain approval to issue certificates, and describe the procedure whereby an organization's authorization can be terminated by the Service. The Service believes that major iss ues such as the scope of covered occupations, the standards for obtaining authorization to issue certificates, and the procedure for termination of an organization's authority to issue certificates are better addressed through proposed rule making. The Service expects to publish the proposed rule as soon as possible, within approximately 1 year.

The Service's Temporary Policies and Their Effect

    The Service has issued a number of temporary policy guidelines which will continue to apply while the Service develops a rule fully implementing section 343.

Occupations Covered

    The current policy of the Service is that section 343 is applicable only to the seven occupations listed in the Joint Explanatory Statement of the Committee of Conference published in the Congressional Record of September 24, 1996, Nos. 132-133, page H10900. The seven occupations are: Nursing, physical therapy, occupational therapy, speech language pathology, medical technology, medical technician, and physician's assistant.

Nonimmigrant Health Care Workers

    In order to ensure that health care facilities remain fully staffed and are able to continue to provide the same level and quality of service to the United States public pending promulgation of a final rule, the Service and DOS have agreed to exercise authority under section 212 (d) (3) of the Act and temporarily waive the certification requirement of section 343 for aliens coming to the United States as nonimmigrant care workers. The Service and the DOS have agreed to extend from 6 months to 1 year the pe riod for which such a waiver is granted. This policy will continue until a final rule is published which fully implements section 343.

Immigrant Health Care Workers

    There is a two-step process for an alien to become a permanent resident or enter the United States as an immigrant to perform labor as a health care worker. In general, a United States employer must file a Form I-140, Immigrant Petition for Alien Worker, with the Service with the appropriate supporting documentation. The Form I-140 petition establishes the alien's eligibility for the employment-based classification sought. Once the Form I-140 petition is approved by the Service, the alien may apply for a n immigrant visa abroad at a consular post or apply for adjustment of status to that of a lawful permanent resident by filing a Form I-485, Application to Register Permanent Resident of Adjust Status in the United States.

    The Service has no statutory authority to waive the requirements of section 343 for aliens coming to the United States permanently as immigrants to perform health care services in this country. Thus, the Service has adopted an interim policy whereby, instead of denying the applications for adjustment of status filed by uncertified aliens seeking to perform labor on a permanent basis in covered health care occupation, such applications are held in abeyance pending promulgation of the implementing regulation s. Similarly, the DOS has no statutory authority to issue immigrant visas to such uncertified aliens, and has held visa applications from such persons in abeyance as well. As a result, the number of applications for adjustment of status which have been held in abeyance and the number of aliens unable to obtain immigrant visas has grown to significant proportions. The four service centers have advised that they are holding in excess of 11,000 such adjustment cases in abeyance.

Who Is Affected by the Rule--§ 212.15(a), (b) and (c) This interim rule will apply to aliens coming to the United States as immigrants and to aliens applying for permanent residency to perform labor in the occupations of nurse and occupational therapist. This interim rule does not apply to any other health care occupation. The applications of aliens seeking to engage permanently in any of the other five health care occupations, i.e. , physical therapy, speech language pathology, medical technology, medical technician, and physician's assistant, listed in the Joint Explanatory Statement previously cited, will continue to be held in abeyance pending promulgation of a final regulation implementing section 343.

    This interim rule does not affect the admission of nonimmigrant aliens coming to the United States to work temporarily in any health care field. Nonimmigrants in the fields or nursing, occupational therapy, physical therapy, speech language pathology, medical technology, medical technician, or physician's assistant will continue to be admitted consistent with the Service's waiver policy previously described.

    At this time, the Service has not extended the application of section 343 beyond the seven occupations listed in the Joint Explanatory Statement of the Committee of Conference. The Service, in consultation with HHS, may include additional health care occupations in its forthcoming proposed rule and expects to seek public comment on whether such occupations should be affected by section 343. Until a final regulation implementing section 343 is promulgated, however, the Service (as well as DOS) will contin ue to deem both immigrants and nonimmigrants in occupations other than the seven listed above to be exempt from the requirements of section 343. Applications for permanent resident status filed by aliens to work in the occupations of speech language pathologist, medical technologist, medical technicians, physical therapists, and physician assistants, however, will continue to be held in abeyance until a final rule is published. Further, the DOS has notified the Service that it will continue its policy of not issuing immigrant visas to aliens coming to the United States to perform labor in these five occupations until a final rule is published.

    The Service has interpreted the term "performing labor as a health care worker" to mean providing direct or indirect health care services to a patient. Aliens coming to the United States to perform services in non-clinical health care occupations such as, but not limited to, medical teachers, medical researchers, managers of health care facilities, and medical consultants to the insurance industry, therefore, are not covered by the provisions of section 343. Individuals employed in these occupations do no t perform patient care and, therefore, are not performing labor in a health care occupation as contemplated in the statute. Nevertheless, aliens who are indirectly involved in the performance of patient care, for example, supervisory nurses, must comply with the provisions of section 343.

    Since the statute specifically refers only to aliens who are seeking to enter the United States under section 203(b) of the Act for the purpose of performing labor as health care workers, section 343 does not apply to the spouse and dependent children of such aliens. Dependent aliens are admitted to the United States for the primary purpose of family unity and are merely accompanying the principal alien. Therefore, the admissibility of dependent aliens is not affected by the provisions of section 343. Fo r similar reasons, it is the position of the Service that an alien who has applied for adjustment of status under section 245 of the Act on the basis of a family-sponsored immigrant petition pursuant to section 203(a) of the Act or on the basis of an employment-based immigrant petition in a non-health care occupation does not have to comply with section 343 of IIRIRA.

    Additionally, an alien who applies for adjustment of status pursuant to sections 209, 210, 245a, 249 or any other section of the Act is not affected by the provisions of section 343 of IIRIRA. This distinction derives from the fact that section 343 of IIRIRA applies only to aliens who are coming to the United States for the primary purpose of performing labor as a health care worker. Aliens applying for adjustment of status under these statutory provisions, regardless of their ultimate professional goal, wi ll not be deemed to be adjusting status for the purpose of performing labor as a health care worker.

Organization Granted Temporary Approval To Issue Certificates for Nurses and Occupational Therapists--§ 212.15(e)

    This rule grants temporary authorization to the CGFNS to issue certificates to aliens coming to the United States on a permanent basis to work in the field of nursing. This rule grants temporary authorization to the NBCOT to issue certificates to aliens coming to the United States on a permanent basis to work in the field of occupational therapy.

    Under this interim rule, CGFNS is authorized to issue certificates only for the occupation of nurse, for which it has an established track record of issuing certificates, and not for the occupation of occupational therapy. Since CGFNS does not have an established track record of issuing certificates for occupational therapists at this time, it will be limited to issuing certificates for occupation of nursing for the validity period of this interim rule.

    The Service defers consideration of whether CGFNS may be authorized to issue certificates for other health care occupations, including occupational therapy, until the promulgation of its forthcoming proposed rule.

    This interim rule authorizes NBCOT, on a temporary basis, to issue certificates in accordance with section 343 for the occupation of occupational therapy. NBCOT is authorized to issue such certificates solely because of NBCOT's proven track record in issuing certificates for the position of occupational therapist and the current acceptance of these certificates by the various state regulatory boards in the field of occupational therapy.

    Insofar as this interim rule addresses the certification requirements for aliens seeking to immigrate to the United States, the Service has determined that it is unnecessary to require that the certificate issued by CGFNS or NBCOT be valid for a specific period of time beyond the date of admission or adjustment of status. The Service may nevertheless consider imposing such a validity period in the context of promulgating its proposed rule.