By Henry J Chang (hchang@visalaw.com or hchang@americanlaw.com)
In a recent memorandum dated June 6, 1997 (the “June 6 Memo”), the Immigration and Naturalization Service (“INS”) has provided additional information regarding the exclusion of foreign health care workers under s. 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”). This new ground of exclusion appears in 212(a)(5)(C) of the Immigration and Nationality Act (“INA”), as amended.
The June 6 Memo first clarifies that, effective immediately, the only health care occupations covered by INA 212(a)(5)(C) are: nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians and physician assistants. Although the INS has left open the possibility of adding other occupations to the list, these are currently the only health care occupations subject to INA 212(a)(5)(C).
A previous INS memorandum dated January 28, 1997 (the “January 28 Memo”) indicated that the INS and Department of State had agreed to a blanket waiver of inadmissibility for nonimmigrant health care workers who lacked the required certification from the Commission on Graduates of Foreign Nursing Schools (“CGFNS”) or other certification pursuant to INA 212(d)(3)(A) until appropriate certification procedures had been put into place. The INS also agreed to a blanket waiver for aliens who were already in possession of nonimmigrant visas or who were visa exempt aliens, including Canadians applying for admission as TNs. The June 6 Memo indicates that aliens who reside in and commute from contiguous territories will be issued a multiple entry Form I-94 valid for six months instead of a single entry I-94 as stated in the January 28 Memo. However, the June 6 Memo still implies that Canadian workers in TN status who do not reside in and commute from Canada will receive only a single entry I-94.
In the June 6 Memo, the INS indicates that aliens who are seeking a change of status or an extension of stay within the United States will also be granted a waiver of inadmissibility and may be granted an extension of stay of up to one year. As an extension of stay may be granted for up to one year, it may be worthwhile for Canadian foreign health care workers in TN status to seek extensions of stay within the United States instead of at a port of entry, provided that they do not intend to depart the United States during the one year period.
The June 6 Memo clarifies that the present certification available from the CGFNS is not sufficient to overcome the ground of exclusion contained in INA 212(a)(5)(C), despite the implication contained in the January 28 Memo. The INS now takes the position that the certification contemplated in INA 212(a)(5)(C) has not been developed yet. Therefore, even registered nurses who have obtained the current CGFNS certification will be excludable.
Further information relating to INA 212(a)(5)(C) appears at the following URL:
<http://www.americanlaw.com/exclude6.html>.
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