On January 28, 1997, Immigration and Naturalization Service Associate Commissioner Louis D. Crocetti, Jr. issued an advisory letter relating to a new exclusion category for health care workers. Under Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), "any alien who seeks to enter the United Sates for the purpose of performing labor as a health-care worker, other than a physician" is excludable from the US. In order to qualify for permanent residency a health care worker must have a certificate from the Commission on Graduates of Foreign Nursing Schools ("CGFNS") or a certificate from "an equivalent credentialing organization approved by the Attorney General, in consultation with the Department of Health and Human Services, verifying the alien's training, licensing, experience, and competency in English appropriate tot he postiion in which the alien will be employed."

CGFNS certification will be required for nurses, but the INS has not yet determined which occupations are "health-care professions" and which entities will be designated credentialing organizations for other health care professions.

INS Service Centers have been instructed TO CONTINUE PROCESSING I-140 PETITIONS UNDER CURRENT RULES and should not consider the new exclusion ground until further notice is given by INS headquarters. Those eligible currently for employment-based permanent residency can also go on to apply for adjustment of status to permanent residency, employment authorization and, if necessary, advance parole. Applications for adjustment of status from nurses can be approved if accompanied by a CGFNS certificate. If the application is not accompanied by such a certificate, the application will be held without action until the CGFNS certificate is obtained. ALL OTHER APPLICATIONS FOR ADJUSTMENT OF STATUS FILED BY OTHER HEALTH CARE WORKERS (EXCEPT PHYSICIANS AND NURSES) WILL BE HELD WITHOUT ACTION UNTIL THE INS PROVIDES FURTHER NOTICE. However, the adjustment applicant can continue to extend employment authorization and apply for advance parole until such INS notice is given on how to rule on these cases.

The INS has stated that "health-care workers" includes physical therapists, occupational therapists, speech-language pathologists, medical technologists and technicians, physician assistants and other occupations.

As for non-immigrant visa applications for non-physician health care workers, the INS has agreed to a blanket waiver of the ground for inadmissibility for those lacking certifications until such time as "appropriate certification procedures have been put in place." Such workers will be granted a single-entry I-94 with a validity date of six months.

Finally, with respect to those seeking admission from outside the US, the State Department has stopped issuing immigrant visas to aliens seeking to enter the US to perform labor as a health care worker. Furthermore, those who received approval before this time to enter the US may face exclusion proceedings when they seek to enter the US unless they are a nurse and have a CGFNS certificate.

Stay tuned for more on this highly important though under-reported new development.