After a two-year agonizingly long wait, the INS has finally released interim regulations to resume adjustment of status processing for nurses and occupational therapists. Physical therapists, medical technologists, medical technicians, speech language pathologists and physicians ARE NOT covered and the INS may take another full year to issue regulations affecting these groups.

The new rule implements portions of Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Section 343 requires that aliens coming to the US to work in covered health care jobs (other than physicians) are inadmissible unless they present a certificate relating to their education, qualifications and English language proficiency.

Section 343 of IIRAIRA specifically requires a certificate either from the Commission on Graduates of Foreign Nursing Schools ("CGFNS") or "a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services. The certification must verify that 1) the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application; are comparable with that required for an American health-care worker of the same type; and 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 consultation with the Secretary of Education, 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 applicant's ability to speak and write; and 3) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an examination.

The INS indicates that the purpose of the rule is to resume the immigration of certain health care workers to avoid disrupting the delivery of critical health care services and to provide for the immigration of workers who filed applications before IIRAIRA went into effect. The rule is also designed to provide a "temporary mechanism" to ensure that nurses and occupational therapists immigrating to the US have education, experience and training comparable to their US counterparts. However, nurses and occupational therapists who meet the requirements of the regulation will be deemed to have satisfied Section 343 even if the final rule changes the requirements.

Why did the INS only cover these two occupations? The INS indicates that it conferred with the Department of Labor and that these occupations have a "sustained level of demand for foreign-trained workers in these two occupations." Also, each occupation has a credentialing organization with an established track record. One has to wonder, however, that by making the determination only with respect to two professions based on the fact that the overall job demand in other occupations is not as severe, is the INS thwarting the will of Congress in passing Section 343. The statute is designed to ensure that foreign health care workers are adequately qualified. Nowhere in the statute is the INS directed to make determinations on the labor market in an occupation. The INS has effectively put an end to immigration in certain occupation categories by simply not issuing regulations.

The INS has found that the CGFNS for nurses and the National Board for Certification in Occupational Therapy, Inc. for occupational therapists meet the statutory requirements for credentialing. CGFNS failed in its attempt to become approved to credential occupational therapists, a victory for the NBCOT, which had to battle to keep CGFNS from claiming a monopoly on all credentialing. The INS indicates, however, that it will consider requests from other organizations for credentialing rights if the organization can demonstrate 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." Again, the INS fails to state the legal justification for this standard and the INS' public statement is only likely to fuel litigation against the INS.

The credentialing certificate will not need to have a validity date. But it must contain the following information:

1. the name and address of the certifying organization;

2. a point of contact where the organization may be contacted in order to verify the validity of the certificate;

3. the date the certificate was issued;

4. the occupation for which the certificate was issued;

5. the alien's name, date and place of birth;

6. verification that the alien's education, training, license and experience are comparable with that required for an American health care worker of the same type;

7. verification that the alien's education, training, license and experience are authentic and, in the case of a license, unencumbered;

8. verification that the alien's education, training , license and experience meet all applicable legal requirements for admission to the US under Section 203(b) of the Immigration and Nationality Act; and

9. verification either that the alien has passed a test predicting success on the occupation's licensing or certification examination, provided such a test is recognized by a majority of state licensing boards or that he or she has passed the actual test in the occupation.

For nurses, the Department of Health and Human Services has approved two testing services to test oral and written competency in English appropriate for the kind of health care work in which the alien will be engaged. The two approved services are the Educational Testing Service (ETS) and the Michigan English Language Assessment Battery (MELAB). Occupational therapists may only take the ETS exam. That is the only examination currently recognized by NBCOT. Note, however, that graduates of health professional programs in Australia, Canada (except Quebec) , Ireland, New Zealand, the United Kingdom and the United States do not have to take the English exam. One is left to wonder why schools in other English-speaking countries are excluded and why graduates of programs taught entirely in English are not covered by this exception.

HHS has set different scores for each of the occupations covered by this interim rule. The minimum scores are as follows:

- An Occupational Therapist must obtain at least the following scores on the TOEFL 560 (paper based) or 220 (computer based): Test of Written English 4.5; Test of Spoken English 50.

- A Registered Nurse must obtain at least the following scores on the TOEFL 540 (paper based) or 207 (computer based): Test of Written English 4.0; Test of Spoken English 50; or MELAB final score 79 oral score 3+.

- A Licensed Practical Nurse or a Licensed Vocational Nurse must obtain at least the following scores on the TOEFL 530 (paper based) or 197 (computer based): Test of Written English 4.0; Test of Spoken English 50; or MELAB final score 77 oral score 3+.

The procedure for complying with the regulation is fairly straightforward. The would-be immigrant only needs to present the credentialing certificate from CGFNS or NBCOT and the English language certification (if needed) at the time of visa issuance at the Consulate (if outside the US) or at the time of adjustment of status (if in the US).

The INS and the State Department have agreed to waive Section 343 for people coming to the US in non-immigrant visa categories. This has been the case for quite some time, but previously, only six-month periods of stay have been granted. The INS and State Department will now issue one-year admissions. Of course, non-immigrant visas do not mean much to nurses since acquiring H-1B visas is very difficult and most nurse positions do not require a bachelors degree, a prerequisite for the H-1B issuance. But nurses qualifying for TN visas and any other health professionals qualifying for H-1B visas will benefit from this change.

Expect a massive surge in immigrant visa filings to now occur. The INS estimates that they have more than 11,000 applications currently being held in abeyance. And many thousands more are waiting to process at consulates. That means new, possibly massive backlogs will be created, particularly for Filipinos, Chinese and Indian applicants in the EB-3 category.

One should remember that this is an interim rule and the INS is accepting comments until February 11, 1999. Comments should be submitted in triplicate to the

Director, Policy Directives and Instructions Branch
INS No. 1879-97
Immigration and Naturalization Service
425 I Street NW
Room 5307
Washington, DC 20536

The following is information to contact CGFNS about its VISASCREEN credentialing program for nurses:

3600 Market St., Suite 400
Philadelphia, PA. 19104-2651
PH: (215)-349-8767-Applicant Inquiries
PH: (215) 222-8454- Business Information
E-Mail: fnsadmin@cgfns.org

Contact NBCOT at

NBCOT
800 S. Frederick Ave., Suite 200
Gaithersburg, MD 20877-4155
Ph: 301-990-7979
Fax: 301-869-8492
e-mail: mspaldin@nbcot.org