The Immigration and Naturalization Service has proposed a new rule which sets out the procedures for organizations to qualify to issue health care worker certifications. Certifications for health care workers are a visa requirement established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The proposed rule also would require for the first time that all non-immigrants coming to the US to work in health care occupations (with the exception of physicians) would need a certification. Under current rules, only immigrant visa applicants need to go through the process getting this special certification.
Background on Section 343
The certification requirement is contained in Section 343 of the 1996 and creates a new ground of inadmissibility for anyone who seeks to enter the US for the purpose of working as a health care worker (other than a physician) unless the worker presents a certificate from a credentialing organization approved by the Justice Department in consultation with the Department of Health and Human Services. The certificate should verify that:
- The alien’s education, training, license and experience meet all applicable statutory and regulatory requirements for admission into the US and are comparable to those required for American health care workers. The credentialing organization would also check the authenticity of the documents and identify licensure problems, if any.
- The alien has the level of competence in spoken and written English needed by health care workers in a particular field. This would be shown by getting an acceptable score on a standardized English language exam.
- If a majority of states licensing the profession recognize a test as predicting an applicant’s success on the profession’s licensing or certification examination, the worker has passed such a test.
Under the 1999 Nursing Relief for Disadvantaged Areas Act, a nurse can present a certified statement from the Commission on Graduates of Foreign Nursing Schools (CGFNS) that
- The nurse has a valid and unrestricted license in the state where the nurse intends to be employed and the state verifies that foreign licenses of nurses are authentic and unencumbered;
- The nurse has passed the National Council Licensure Examination (NCLEX); and
- The nurse graduated from a nursing program taught in English and located in Australia, Canada, Ireland, New Zealand, South Africa, the United Kingdom or the United States. Also, the nursing program must have been operational prior to November 12, 1999.
From 1996 to 1998, the INS did not adjudicate any health care worker cases. The agency was sued in a class action alleging that the INS had failed to carry out the will of Congress by not issuing regulations required under the 1996 Act. The agency finally responded by issuing an interim regulation in 1998 which was followed over the next couple of years with two additional interim regulations. Those provisions will remain in effect until this proposed rule is made final.
The First Interim Rule
In October 1998, the INS designated seven categories of health care workers covered by the law. They are nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians and physician assistants. As part of that interim rule, the INS designated CGFNS and the National Board for Certification in Occupational Therapy (NBCOT) to issue certificates in their respective fields. The rule also set the language competency levels for nurses and occupational therapists and specified exemptions from the English language testing. The INS identified two criteria to support the designation of CGFNS and NBCOT: 1) the existence of a sustained level of demand for foreign workers for the particular occupation exists; and 2) both organizations had a track record in providing credentialing services. “Sustained level of demand” was defined to include the presence of an existing demand for foreign health care workers in a particular occupation that is expected to continue in the foreseeable future. This requirement is not mentioned in the statute and INS did not specify why it was authorized to add this requirement.
The INS only applied the rule to immigrants. The INS and the State Department chose to exercise their discretion and exempted non-immigrant health care workers who are granted waivers of the certification requirement. But such workers are only granted one year stays in the US in their visa classification.
The Second Interim Rule
The second interim rule was released in April 1999. That rule temporarily authorized CGFNS to issue certificates to immigrant occupational therapists. It also authorized the Foreign Credentialing Commission on Physical Therapy (FCCPT) to issue certificates to physical therapists. The English language competency levels for physical therapists were also included in the interim rule.
The Third Interim Rule
The INS released its third interim rule implementing Section 343 in January 2001. It authorized CGFNS to issue certificates to immigrant speech-language pathologists and audiologists, medical technologists, physician assistants and medical technicians. The rule also included appropriate English test scores for those occupations. The INS noted that it had difficulty coming up with the third rule because of various treaty obligations and it had difficulty determining the answer to the “sustained level of demand” criteria that it specified in the first rule. So it decided to go ahead and proceed with issuing the rule in order to relieve the tremendous backlog that had existed since cases were not being processed since 1996.
The H-1C Visa Rules
As part of the rules implementing the H-1C visa category for nurses, the INS included a provision providing for the alternate certification of nurses outlined above.
The Proposed New Rule
The new rule covers all workers in the seven professions specified in the first interim rule – non-immigrants and immigrants alike. There are seven changes the rule makes to the Code of Federal Regulations:
- Specifies which organizations are authorized to issue certificates;
- Describes the English language requirements for certification;
- Describes the required content of the certificate itself;
- Implements the alternative certification process for foreign nurses;
- Describes the procedure to qualify as a certifying organization;
- Lists the standards that an organization must meet in order to issue certifications; and
- Provides for periodic review of the performance of certifying organization.
Who is Covered by the Certification Requirements?
As noted above, the new rule applies to both non-immigrants and immigrants. Physicians are exempt from the requirement under the law. The rules also cover health care workers applying to immigrate both overseas and through adjustment in the United States. But the rules only cover health care workers applying for a green card in an employment category and not through a family or other category.
The non-immigrants covered under the rule are those working in the H-1B, O-1 and TN categories. Certain J-1 exchange visitors are covered, but not those coming to engage in training in a medical field. F-1s receiving practical training are also not covered. The logic behind the exemptions is that these workers are not performing labor as a health care worker since they are not independently performing the full range of duties of their occupation.
The INS also exempts spouses and dependent children of immigrants and non-immigrants from the certification requirements even if they are working in a health care field.
The INS has responded to previous comments regarding whether foreign health care workers possessing a full and unrestricted license issued by a state of intended employment should have to get a certificate. They have answered the question in the affirmative noting that Congress did not specify an exemption. The fact that they later specifically created an alternative certification program for nurses in this situation is viewed as supporting the fact that Congress thought about this issue and only exempted nurses. Also, the INS argues that just because a nurse is capable of getting a state license, that does not mean they have the necessary English skills, prior training or possess a license in their country that is unencumbered. The INS does not address the fact, however, that most states generally have rules requiring these things anyway.
The INS also has chosen to include in the certification requirement nurses who received their licenses in the US. The agency states that even though the training received is obviously comparable to American workers, there is still no verification of their licensure as required by statute. However, the INS does state that it would not be opposed to credentialing organizations developing a streamlined certification process for workers with unrestricted state licenses or who have received training in the US.
Which Health Care Fields are Covered?
The same seven categories covered in the first interim regulation remain unchanged – nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists, medical technicians and physician assistants. The INS notes that it might elect later to add more categories as long as the professions generally require a license and workers in the field have a direct effect on patient care. Also, the INS does not want to include occupations that are defined very differently from country to country (such as a clinical social worker) and the INS is considering explicitly defining each health care occupation.
How is the Certification to be Submitted to the INS?
The INS will continue its current policy of allowing the certificate to be presented to a consular officer at the time of visa issuance and to the INS at the time of admission or adjustment of status. The certificate only needs to be presented once and then the I-94 or the fee receipt for a TN admission will be enough to show that the worker has previously presented a certificate. The certificate also does not need to be presented again when applying for an extension of stay in a particular non-immigrant category.
In the case of a change of non-immigrant classification, the INS is planning on implementing a new procedure. It will require workers to present the certificate upon an application to change visa classification. Also, for workers who entered on a waiver of the certification requirement, they will need to present the certificate the next time they leave and reenter or provide the certificate when they apply for an extension.
How Will an Organization Obtain Authorization to Issue Certificates?
The INS is apparently pleased with CGFNS’ performance over the last few years and now plans on giving them authorization to issue certificates in all seven health care professions without applying for credentialing status. But it will require CGFNS to file a Form I-905, Application for Authorization to Issue Certification for Health Care Workers. But they will not need to submit a fee for certification in the nursing field. CGFNS will also be required to submit a Form I-905 with fee for non-nursing occupations. CGFNS will be subject to ongoing review like other credentialing organizations. NCOT and FCCPT will also be able to continue issuing certificates while their credentialing status is reviewed under the final rule.
Other organizations must submit a Form I-905 with a $240 fee to the INS Nebraska Service Center. The INS will closely confer with the Department of Health and Human Services in these applications. The Form I-905 will require the organization seeking credentialing status to
- Provide a point of contact and a written, detailed description of the organization and how the meets the regulatory standards
- List the occupations for which the organization is seeking approval to issue certificates and describe the organization’s expertise in each occupation
- Describe how it will process applications and issue certificates in a timely manner.
- Describe the procedure it has designed to verify the validity of the certificate.
The INS will issue a written decision and if it is negative, the applicant can appeal to the Administrative Appeals Office.
What Standards Must the Credentialing Organization Meet?
- The organization must be free of material conflicts of interest regarding whether the worker receives a visa.
- The organization should show an ability to evaluate both the foreign credentials appropriate for the profession and the results of examinations for proficiency in the English language.
- The organization should maintain full and complete information on foreign educational institutions, ministries of health and foreign health care licensing jurisdictions.
- If the field is one where a majority of the States require a predictor exam (right now this just applies to nursing), then the organization should show an ability to administer the exam outside the US.
The INS is seeking comments on whether all requirements should have to be met in order to qualify and also how an organization can show that it is independent and free of a conflict of interest.
The INS will develop a regulatory process to monitor credentialing organizations. It plans to review and reauthorize credentialing organizations every five years. But it is seeking comment on what the frequency should be. The INS also wants to know whether the reviews should be targeted or random.
The INS will consider how timely an organization is in issuing certificates and whether it is charging a reasonable fee. The INS is seeking a comment on how long is reasonable to issue a certificate.
What Will the Certificate Look Like?
The certificate must contain the following information:
- name, designated point of contact to verify the validity of the certificate, address, and telephone number of the certifying organization
- the date the certificate was issued
- the occupation for which the certificate was issued, and
- the worker’s name and date and place of birth
What are the Required English Test Scores?
Note that nurses who have graduated from a school in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom and the United States need not take the exam.
The following four testing services are approved to administer exams:
- Michigan English Language Assessment Battery (MELAB)
- Educational Testing Service (ETS)
- Test of English in International Communication Service International (TOEIC)
- International English Language System (IELTS)
The MELAB spoken English test is now only being offered in the United States so the INS will allow for combinations of the MELAB with other exams.
Physical Therapists must have the following scores:
TOEFL: Paper-based: 560; computer-based: 220; Test of Written English (TWE): 4.5; Test of Spoken English (TSE): 50
The MELAB, TOEIC and IELTS are not acceptable for physical therapists
Registered nurses and occupations requiring a bachelors degree must have the following scores:
- TOEFL: paper-based: 540; computer-based: 207; TWE: 4.0; TSE: 50
- MELAB: Final Score: 79; Oral interview: 3+
- MELAB: Final Score: 79; plus TSE: 50
- TOEIC: 725; plus TWE: 4.0 and TSE: 50 or
- IELTS: 6.5 overall with a spoken band score of 7.0
Occupations requiring less than a bachelors degree must have the following scores:
- TOEFL: paper-based: 530; computer-based: 197; TWE: 4.0; TSE: 50
- MELAB: Final Score: 77; Oral interview: 3+
- MELAB: Final Score: 77; plus TSE: 50
- TOEIC: 700; plus TWE: 4.0 and TSE: 50 or
- IELTS: 6.0 overall with a spoken band score of 7.0
Where do I Send my Comments?
Written comments must be submitted by December 10, 2002 to
Director, Regulations and Forms Services Division
Immigration and Naturalization Service
425 I Street, NW
Room 4034
Washington, DC 20536
Comments may also be submitted by email to insregs@usdoj.gov. Be sure to include INS 2080-00 in the subject box.
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