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Labor Certification and Qualifications for Certain Health Care Professionals

Written by Henry J. Chang

Under INA §212(a)(5)(A), an alien seeking entry for the purpose of seeking skilled or unskilled labor is excludable in the absence of an approved labor certification. This ground of exclusion applies to the second and third employment-based preference categories. For more information regarding employment-based categories, please refer to the article on employment-based immigration.

Unqualified Physicians

Certain foreign physicians are excludable as immigrants under INA §212(a)(5)(B) unless they have successfully completed the necessary qualifying examinations. For more information on the exclusion of foreign medical graduates, please refer to the article on permanent residence for Canadian physicians.

Uncertified Foreign Health Care Workers Other Than Physicians [Effective September 30, 1996]

Pursuant to the new INA 212(a)(5)(C), an alien who seeks to enter the United States as a health-care worker, other than a physician, is excludable unless the alien presents a certificate from the Commission on Graduates of Foreign Nursing Schools ("CGFNS"), or certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services verifying that:

  1. the alien's education, training, license and experience -

    1. meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application;

    2. are comparable with that required for an american health care worker of the same type; and

    3. 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 Health and Human Services, in conjunction with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged; and

  3. if a majority of States licensing the profession in which the alien intends to work recognizes a test predicting the success on the profession's licensing or certifying examination, the alien has passed such a test or examination.

The determination of standardized tests required and of the minimum scores are within the sole discretion of the Secretary of Health and Human Services and are not subject to further administrative or judicial review.

INA §212(a)(5)(D) [formerly INA §212(a)(5)(C)], which makes the other two grounds of exclusion contained in INA §212(a)(5) applicable to immigrants only, has not been amended to extend to this ground. Therefore, this ground of exclusion will apply to nonimmigrant foreign health care workers as well.

Memoranda which discussed this ground of exclusion were issued by both the Department of State and the INS in 1997. The Department of State Cable and INS Memo dated January 28, 1997 (the "January 28 Memo"), are reproduced at this web site. These documents stated that, while Congress did not define the term "health-care worker" in the legislation, the legislative history indicated that the term included a nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, physician assistant and other occupations.

These documents also stated that the Department of State and the INS had agreed to a blanket waiver of inadmissibility under section 212(a)(5)(c), for nonimmigrant health care workers lacking the required CGFNS certificate or other certification pursuant to section 212(d)(3)(A), until such time as appropriate certification procedures had been put in place. The INS also agreed to waive inadmissibility under section 212(a)(5)(C), pursuant to section 212(d)(3)(B), for aliens already in possession of nonimmigrant visas or who were visa-exempt aliens, including Canadians applying for admission as TN's.

Under this blanket waiver, INS officers at U.S. Ports-of-Entry and foreign pre-clearance sites were permitted to accept applications for waivers. Any otherwise admissible nonimmigrant health-care worker who received a waiver for section 212(a)(5)(C) inadmissibility would be authorized admission into the United States with a single-entry Form I-94 with a validity date of six (6) months. Otherwise admissible dependents covered by the blanket policy would also be authorized admission into the United States for a time coinciding with that of the principal alien.

With regard to immigrant processing, both the Department of State and the INS stated that they would refuse immigrant visas or adjustment of status to foreign health care workers (except for nurses who had CGFNS certification) until the required certification procedure had been implemented and the intending immigrant had complied with such certification. The Department of State stated that visas for foreign health care workers who had not already been admitted, and who were lacking certification, would be revoked in accordance with INA 221(i) (See also 22CFR 42.82) until such time as an appropriate certification program had been established and the applicant presented the required certification. The INS stated that foreign health-care workers who were applying for admission with immigrant visas based upon offers on employment in the health care field would be placed in exclusion or removal proceedings unless the alien was already in possession of the required CGFNS certificate. Any dependents would also be placed in exclusion proceedings.

A later INS memo dated June 6, 1997 (the "June 6 Memo"), updated certain parts of the January 28 Memo. The text of the June 6 Memo is reproduced at this web site.

The June 6 Memo clarified that, effective immediately, the only health care occupations covered by INA 212(a)(5)(C) were: nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians and physician assistants. Although the INS left open the possibility of adding other occupations to the list, these are currently the only health care occupations subject to INA 212(a)(5)(C).

The June 6 Memo clarified that aliens who resided in and commuted from contiguous territories would be issued a multiple entry Form I-94 valid for six months instead of a single entry I-94 as stated in the January 28 Memo. This implied that nationals of contiguous territories (i.e. Canadian workers in TN status) who did not reside in and commute therefrom would still receive only a single entry I-94. However, in practice immigration officers have been giving multiple entry I-94s for one-year periods. The June 6 Memo also indicated that aliens who were seeking a change of status or an extension of stay within the United States would also be granted a waiver of inadmissibility and could be granted an extension of stay of up to one year.

Finally, the June 6 Memo clarified that the previous certification available from the CGFNS was not sufficient to overcome the ground of exclusion contained in INA 212(a)(5)(C), despite the implication contained in the January 28 Memo. The INS subsequently took the position that the certification contemplated in INA 212(a)(5)(C) had not been developed yet. It also indicated that it would not accept any certifications for foreign health care workers until it promulgated its regulations.

The INS finally promulgated interim regulations on October 14, 1998, which became effective on December 14, 1998. A copy of the interim regulations are available here.

The interim regulations applied only to nurses and occupational therapists; they designated the appropriate credentialing organizations for these two professions. The Commission on Graduates of Foreign Nursing Schools ("CGFNS")and the National Board for Certification in Occupational Therapy ("NBCOT") are the designated credentialing organizations under this regulation. Nurses must obtain certification from the CGFNS and occupational therapists must obtain certification from NBCOT. The other occupations listed in the June 6 Memo still had no means of overcoming this ground of exclusion. However, the INS and DOS agreed to extend the period for which INA 212(d)(3) waivers were granted from 6 months to 1 year. This policy was supposed to continue until a final rule was published that fully implemented section 343.

According to the interim regulations, this ground of exclusion did not apply to aliens seeking admission to the United States to perform services in a non-clinical health care occupation. A non-clinical health-care occupation was one where the alien is not required to perform direct or indirect patient care. Occupations which were considered to be non-clinical included, but were not limited to: medical teachers, medical researchers, managers of health care facilities, and medical consultants to the insurance industry.

The final regulations were finally published by the Department of Homeland Security ("DHS") on September 23, 2004. Under the terms of the final rule, the nonimmigrant waiver of this ground of inadmissibility is only extended for one additional year from the date of the final rule's publication (i.e. until September 22, 2004).

Every alien must meet certain English language requirements to obtain certification. The Department of Health and Human Services ("HHS") has identified two English language testing services which conduct a nationally recognized, commercially available, standardized assessment as contemplated in the INA. The two testing services are the Educational Testing Service ("ETS") and the Michigan English Language Assessment Battery ("MELAB"). HHS has determined that occupational therapists should only take the test administered by ETS.

However, not all aliens are required to meet these requirements. Aliens who have graduated from a college, university, or professional training school located in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States are exempt from the English language requirement.

An alien applying for adjustment of status to perform labor in a health care occupation must present evidence at the time he or she applies for adjustment of status, and, if applicable, at the time of the interview on the application, that he or she has a valid certificate issued by CGFNS or NBCOT.

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