Partial Regulations on Sec 343, Foreign Health Care Worker Provisions
Posted Nov 16, 1998

As previously mentioned in The Law Office of Sheela Murthy's Immnet Bulletin, the 1996 immigration law includes a provision (Section 343) imposing a new certification requirement on several categories of non-physician health care workers. No new requirements could be implemented, however, until the Immigration and Naturalization Service ("INS") issued regulations to set forth the relevant criteria and procedures. INS announced a blanket waiver of the new certification in nonimmigrant cases, and the new regulation now extends that waiver, but green card cases for health care workers were put on hold. The Law Office of Sheela Murthy reported earlier that due to hardships caused by this hold, the Commission on Graduates of Foreign Nursing Schools (CGFNS) and the American Immigration Law Foundation have sued the INS.

Section 343 at present applies to seven types of health care workers: nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians, and physician's assistants. The INS, in consultation with the Department of Health and Human Services, has the option of adding other occupations to that list.

INS has now issued regulations which enable two of these groups, nurses and occupational therapists to complete their permanent residency process. As yet, there is no relief for other five types, and their permanent residency applications will continue to be put on hold by INS. Persons in health care fields that are not related to patient care, for example researchers, hospital administrators, and insurance consultants are not affected by Section 343. Beneficiaries of family-based immigrant petitions, who may happen to be in health care fields, are also not required to obtain certificates.

The rule authorizes CGFNS to issue certifications for nurses and authorizes the National Board for Certification in Occupational Therapy (NBCOT) as the sole certifying body for occupational therapists. English language proficiency is required, but persons from certain English-speaking countries are exempt. All applicants, including those who received their training or degree in the U.S., must have a skill certification. Certificates will need to be presented at the time of applying for adjustment of status in the U.S., or for an immigrant visa at a U.S. Consulate abroad.

The Law Office of Sheela Murthy observes that it is noteworthy that not long after the lawsuit by the American Immigration Lawyers Association against the INS requiring the promulgation of regulations that the INS has issued the clarifying regulations. The new regulation takes effect December 14, 1998.