By Henry J. Chang <hchang@visalaw.com>
Section 343 of the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 , Pub. L. No. 104-208, 110 Stat. 3009 (“IIRAIRA”) contains a far-reaching provision relating to the certification of foreign health care workers. Although §343 has caused less public outrage than other provisions contained in IIRAIRA, it will nevertheless have a significant effect on Canadian professionals (as well as professionals of other nationalities) in the health care field.
Section §343 creates a new INA §212(a)(5)(C) which makes excludable any alien who seeks to enter the United States as a health care worker, other than a physician who is already excluded under INA §212(a)(5)(C), unless the alien presents a certificate from the Commission on Graduates of Foreign Nursing Schools (“CGFNS”), or certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services verifying such facts as:
i. the alien’s education, training, license and experience
- I. meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application;
- II. are comparable with that required for an American health care worker of the same type; and
- III. are authentic and in the case of a license, unencumbered.
ii. the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in conjunction with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged; and
iii. if a majority of States licensing the profession in which the alien intends to work recognizes a test predicting the success on the profession’s licensing or certifying examination, the alien has passed such a test or examination.
The previous INA §212(a)(5)(C) [now redesignated as INA §212(a)(5)(D)] made all grounds of exclusion contained in INA §212(a)(5) applicable only to immigrants, not nonimmigrants. However, this provision, as it now appears in INA §212(a)(5)(D), does not limit the exclusion of foreign health care workers to immigrants. In other words, this ground of exclusion will apply to nonimmigrants as well.
Foreign health care workers seeking temporary entry or maintaining status as nonimmigrants (such as H-1B or TN) will now be excludable under INA §212(a)(5)(C) unless they have obtained a certificate from the Commission on Graduates of Foreign Nursing Schools (“CGFNS”) or a certificate from an approved equivalent credentialing organization. As the CGFNS examination is specifically referred to, it is clear that registered nurses are considered “health care workers”.
TN eligibility as a registered nurse under NAFTA requires only that the nurse possess a State or provincial license to practice. H-1B eligibility requires only that the nurse possess a bachelor degree in the field of specialty and a full unrestricted license to practice in the State of intended employment. While several states required passage of the CGFNS examination to qualify for state licensure as a registered nurse, INA §212(a)(5)(C) now makes CGFNS examination an absolute requirement.
It is important to notice that the term “health care worker” is not defined. It will almost certainly be broadly interpreted to include other health care workers besides registered nurses. While some medical professions (i.e. dentists) already require formal licensure, many other professions may be subject to additional certification requirements as a result of this provision. For example, the following TN eligible professions may be vulnerable to additional credentialing requirements under INA §212(a)(5)(C): (a) Dietitians, (b) Medical Laboratory Technologists, (c) Nutritionists, (d) Occupational Therapists, (e) Physiotherapists/Physical Therapists, (f) Psychologists, and (g) Recreational Therapists.
Currently, the only approved independent credentialing organization for the purpose of INA §212(a)(5)(C) is the CGFNS, which certifies the credentials of registered nurses. Since this ground of exclusion technically went into effective on September 30, 1996, the INS apparently plans to waive this ground of exclusion for all other foreign health care workers until an appropriate credentialing organization is approved for the particular profession.
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