Two months after the release of final regulations on the certification of foreign health care workers were released by the Department of Homeland Security, William Yates, the Associate Director of Operations for Citizenship and Immigration Services (formerly the INS and BCIS), has released a memorandum providing guidance on the implementation of the new regulation. The July rule provided for the phased in implementation of the VisaScreen credentialing process to non-immigrant workers. It also provided guidelines on the documentation of a health care worker's English skills.

The Yates memo first recites a summary of the new rules including which occupations are affected - nurses, physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists, medical technicians and physician assistants. It then provides a history of the rules that have implemented the section of the 1996 immigration law that called for the credentialing requirement. The memo then discusses the phase in of the new rules for non-immigrant visa holders, particularly the one-year waiver period that will allow non-immigrants to enter without VisaScreen until July 24, 2004.

Where the Yates memo departs from the regulations and all prior policies is in the section of the memorandum regarding applicants applying to adjust status to permanent residency in the US. The memorandum first notes that immigrant health care workers are currently required to present certification to the Department of State at the time of immigrant visa issuance. That policy is longstanding. However, the memorandum then goes on to state that a health care working adjusting status must demonstrate that they have VisaScreen AT THE TIME the adjustment application is filed. Previously, the INS/BCIS/USCIS accepted VisaScreen at the time the nurse adjusted status. Yates bases this on the notion that all eligibility requirements - not just VisaScreen - must be met at the time of filing the application for adjustment of status.

Yates does not mention that the USCIS routinely varies from this policy in other types of adjustment cases. For example, while applicants for family-based adjustment petitions must submit an affidavit of support at the time of filing, immigration examiners look to the financial condition of the applicants at the time of adjusting - not the time of filing - to determine if the public charge requirements are met. Applicants applying for adjustment of status who were previously subject to the J-1 home residency requirement have traditionally been allowed to file for adjustment of status after they have received their waiver recommendations from the State Department and have not had to wait for the INS/BCIS/USCIS' final adjudication of the waiver.

Nursing immigration advocates have reacted with dismay to the new barrier being imposed by USCIS to the green card application process. Many are bewildered tha they agency would seek to toughen rules at the time of a serious nursing shortage in this country. Recent studies have indicated that the shortage of nurses is already having a severely negative effect on patients and that death rates in hospitals are increasing when there are not enough nurses to go around.