Sources in close communication with INS officials working on the new health care worker regulations continue to report that the INS is very close to issuing regulations required by Section 343 of the 1996 Immigration Act. We have heard that the regulations could be issued any day now, though the INS' history of delays should make people cautious before assuming that the INS will act anytime soon.

In our March 1998 issue, we mentioned that the American Immigration Law Foundation (AILF) was seeking plaintiffs for a lawsuit over the lack of regulations. Last month, AILF and the law firm of Dechert Price & Rhoads filed a suit in federal court in Washington against the INS and the Department of Health and Human Services as a result of their failure to issue regulations. Section 343 added a requirement to the law that health care workers present proof of certification by the Commission on Graduates of Foreign Nursing Schools or an equivalent certifying body. However, the law has never taken effect because in the last two years neither the INS nor HHS have issued implementing regulations. Instead, all permanent residency processing for health care workers has come to a halt and thousands of health care workers have had their cases put on indefinite hold.

The plaintiffs in the case are three Registered Nurses and a physical therapist each of whom has suffered damage because of the failure to issue regulations. They either had a) children who turned 21 during the prolonged waiting period and who no longer are eligible to immigrate with their parents or b) a spouse who has been unable to join them in the US in the last two years because the petitioning spouse has been unable to adjust to permanent residency.

According to Roy Petty, the Executive Director of AILF, "There's no excuse for it [the failure to issue regulations]. It's the ultimate in bureaucratic bungling. And it isn't just the health care workers and their families that are hurt by this, but also the hospitals and clinics where they were going to work, and the communities they serve."

The suit seeks a request from a judge that the government does what it is supposed to do. Money damages are not be sought, only an order requiring the INS and HHS to immediately issue regulations and adjudicate permanent residency petitions right away.

In our June 1998 issue, we reported that the Commission on Graduates of Foreign Nursing Schools filed a similar lawsuit against the INS. Last month, the CGFNS moved for summary judgment in its suit. CGFNS argues in its motion that the INS and State Department

1. Violated Section 343 of the 1996 Act by refusing to accept CGFNS certificates issued to foreign health care workers;

2. Violated Section 212(d)(3)(A) of the Immigration and Nationality Act by waiving the certification requirements of Section 343 on a blanket basis;

3. Violated the Administrative Procedures Act by taking arbitrary, capricious and abusive actions; and

4. Have deprived CGFNS of property without due process of law in violation of the 5th Amendment of the Constitution.

The two lawsuits obviously are ratcheting up the pressure on the INS to finally issue the regulations. The INS has a strong incentive to issue the regulations soon in order to avoid having to further defend themselves in the cases.