A Rock and a Hard Place: How Strict Interpretation of both TN and Healthcare Certification Law Affect TN Status for Certain Medical Technologists
By Adam Cohen
Medical Technologists represent one of the eligible occupations for purposes of receiving TN (Trade NAFTA) status, a professional worker status available to Canadian and Mexican citizens. Additionally, foreign nationals seeking admission to perform labor as medical technologists (or in one of six other health care occupations, including nurses) must obtain a healthcare certification to obtain TN, H-1B, and other statuses, as well as permanent residence. This certification from a USCIS-approved credentialing organization verifies that the foreign national has met the minimum requirements for training, licensure, and English proficiency in his or her field. Currently, only the Commission on Graduates of Foreign Nursing Schools (CGFNS) is authorized to issue certificates to medical technologists.
The problem is that CGFNS will not certify certain occupations that are often categorized under the Medical Technologist and Medical Technician professions. In a September 17, 2004 letter addressed to the Department of Homeland Security, CGFNS grouped those certain occupations into two categories.
- Occupations that were deemed by CGFNS to be significantly different from medical technologists and medical technicians, largely by virtue of their different Department of Labor job classification codes. This includes Medical Sonographers and Radiologic Technologists.
- Related Specialist Occupations. CGFNS states in the letter that medical technologists “are the generalists in the medical laboratory.” Therefore, they will not certify those who are specialists in clinical laboratory science, because they have concluded that Congress only intended to cover medical laboratory generalists. The specialist occupations include Clinical Laboratory Specialist in Cytogenetics, Clinical Laboratory Supervisor, and Cytotechnologists, among several others.
Especially for foreign nationals in those occupations deemed “significantly different”, they face the untenable argument that they are medical technologists under the TN occupation list but are not medical technologists requiring healthcare certification. It does not pass scrutiny with CBP and is not a workable argument. This is likely the case with the related specialist occupations as well. Even if USCIS were to approve a TN petition first, CBP need not accord deference to USCIS, and the foreign nationals’ travel could cause concern.
This problem is more of a TN issue than a healthcare certification issue. In the H-1B context, for example, the foreign national is not trying to squeeze into a particular occupation to be eligible for the status. Thus, the foreign national could argue across the board that he or she is not a medical technologist and present the 2004 CGFNS letter as proof that a healthcare certification is not required.
Lastly, some have tried to convince CBP that the aforementioned occupations often categorized under the Medical Technologist profession could come under the TN Scientific Technologist occupation. However, this argument has not been successful at many ports of entry, because the foreign nationals’ job has been primarily associated with another job title in the Department of Labor’s Occupational Outlook Handbook (for example, Sonographers), and an old (but still viable) November 7, 2002 INS memo prohibits use of the Scientific Technologist category for jobs primarily associated with other titles. Moreover, at certain ports, denials have resulted because the degrees of the foreign national were not in one of the enumerated fields mentioned in the Scientific Technologist description, namely agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics. This is an unnecessarily strict interpretation, because the description only requires theoretical knowledge of an enumerated discipline and the ability to solve practical problems in or apply principles of any of those disciplines. Denials have also resulted because the job duties of the healthcare professional were deemed to not be “interrelated” with a scientific professional.
Unfortunately, this issue is as of yet unresolved. However, it is important to know of its existence from the perspective of foreign national, employer, recruiter, and attorney, so that the necessary questions are asked and the proper strategy is formulated from the beginning.
Important Changes Ahead for Physical Therapists
By Elissa Taub
The Foreign Credentialing Commission on Physical Therapy (FCCPT) is a non-profit organization that evaluates the credentials of physical therapists who were educated outside the US. By providing Health Care Worker Certificates to physical therapists educated outside the US, FCCPT fulfills an essential function for physical therapists who need the certificates to be able to obtain visas to work in the US.
In September 2016, FCCPT announced that, due to a prospective change in USCIS policy, FCCPT would require all physical therapists seeking a new Health Care Worker Certificate after September 15, 2016, to have a Master’s Degree in Physical Therapy. FCCPT will deny certificate requests from individuals who have only a Bachelor’s Degree. The changes will not affect renewals of certificates or individuals who already have received a certificate.
FCCPT took this position based on information it received that USCIS now requires the following educational credentials from all physical therapists seeking visas to work in the US:
- Master’s Degree or higher in physical therapy; and
- 1 total semester credits minimum (general + professional education)
- Equivalency on CWT5
According to FCCPT, USCIS will impose the following educational requirements for physical therapists beginning at some point in 2017:
- Doctor of Physical Therapy, and
- 234 Total Semester credits minimum (general + professional education)
- Equivalency on CWT6
When asked about this potential change in policy, USCIS stated that it had not generated an opinion or directive related to the minimum required degree for physical therapists. FCCPT has not rolled back or modified its new policy. Accordingly, even if USCIS does not formally impose the heightened educational requirements listed here, for the time being, foreign-educated physical therapists will not be able to obtain a new Type 1 Health Care Worker Certificate from FCCPT without at least a Master’s Degree in Physical Therapy. It is possible that FCCPT could begin requiring a DPT at some point in the future.
It is important for physical therapists seeking to work in the US with foreign credentials to monitor the positions of FCCPT and USCIS on the minimum education required to qualify for an H-1B visa or permanent residence in the US.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.