Regulations for Remaining Categories of Healthcare Workers
Posted Jan 26, 2001

As discussed in past issues of the MurthyBulletin, Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed a new certification requirement on seven types of health care workers seeking green cards. The professions affected were: Registered Nurses, Physical Therapists, Occupational Therapists, Physician's Assistants, Speech / Language Pathologists and Audiologists, Medical Technologists (also known as Clinical Laboratory Scientists), and Medical Technicians (also known as Clinical Laboratory Technicians).

In order to be approved for permanent residency, the above professionals had to obtain new certifications to show that they had a degree or training equivalent to their U.S. counterparts, even if they had previously been issued certificates for that purpose. The adjustment of status (I-485) or immigrant visa could not be approved until the new certification was obtained.

Prior to Section 343, there was already a certification requirement and most of these workers were also subject to state licensing requirements. However, the new certification requirement under Section 343 applies equally to all foreign nationals in any of the following categories:

- health care professionals who have already been certified by competent agencies as having equivalent education / training to U.S. workers;

- foreign healthcare workers who obtained their education / training within the U.S. and

- foreign healthcare workers educated abroad who have not yet obtained equivalency certificates.

So even persons with U.S. degrees must now obtain certificates stating that their education was equivalent to a U.S. degree.

Furthermore, it was impossible to apply for or obtain the new certification until INS published regulations spelling out the requirements for the certificates and the procedure for applying. So INS had to put large numbers of I-485 cases on hold. Persons waiting outside the U.S. for immigrant visa interviews at consulates also could not be processed. These delays have caused untold hardship both to the workers and the employers who desperately need them.

The requirement also applied to nonimmigrant (temporary) workers under the statute, but fortunately INS issued a blanket waiver, so that temporary workers only needed to comply with the certification requirements that existed under prior law. The first interim rule, which contained the above waiver as well as instructions for Registered Nurses (RNs) and Occupational Therapists (OTs) to apply for the new certifications, was published on October 14, 1998, just a few months after a lawsuit was filed against INS.

A second rule, designating an additional organization to provide certificates to OTs and enabling Physical Therapists (PTs) to be certified, was published on April 30, 1999.

The latest regulation now implements Section 343 for the remaining categories of health care workers. It was published as an interim rule on January 16, 2001, and is scheduled to take effect on March 19, 2001. In its introductory comments, INS acknowledged the hardships caused by the delays in its implementation of Section 343.

Under the regulation, the Commission on Graduates of Foreign Nursing Schools (CGFNS), which had previously been authorized to certify RNs, OTs and PTs (two other, more specialized professional organizations also have authority to certify OTs and PTs), is now allowed to certify the remaining categories of health care professionals. The rule also discusses details such as the required English language test passing score for each type of professional, and other criteria and procedures for applying.

Even though there is now an established procedure for obtaining the necessary certification, please note that there are likely to be further delays as CGFNS must now handle a flood of applications.