USCIS Memo on Certification of Health Care Workers
Posted Oct 10, 2003

The Associate Director of Operations for the USCIS, William R. Yates, issued a memo on September 22, 2003 regarding the recently published final regulations on certification requirements for foreign health care workers. News of publication of the final regulations was reported to MurthyBulletin readers in our August 1, 2003 article, New Certification Requirements for Health Care Professionals, available on MurthyDotCom. The Yates Memo was drafted to provide instructions and guidance to USCIS officers adjudicating petitions for foreign health care workers. One of the key provisions, explained below, is that persons seeking to adjust status to permanent residence through employment in one of the affected health care occupations must have an appropriate credentialing certification at the time of filing for adjustment of status. The VisaScreen certificate, issued by the International Commission on Healthcare Professionals (ICHP) is the most commonly used certificate.

Affected Health Care Occupations

A health care worker is required to obtain a certification to verify that her/his education, license, and experience are equivalent to those of a U.S. health care worker, and that s/he has the required fluency in English to provide health care services to patients in the U.S. Details of the certification are provided in the August 1, 2003 article cited above. Except for physicians who are exempt from the certificate requirement, the new regulation applies to a broad class of health care workers who fall within one of the following seven categories: nurses, physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists (also known as clinical laboratory scientists), medical technicians (also known as clinical laboratory technicians), and physician assistants. The certificate requirement does not apply to health care workers who will perform non-clinical services such as medical teachers, researchers, and managers of health care facilities. Nor does the certificate requirement apply to those coming to the U.S. as students or to receive training.

Effect of the Requirement on Nonimmigrant Health Care Workers

The final rule requires a nonimmigrant health care worker to obtain and present a certification to the Department of Homeland Security (DHS) each time s/he applies for admission, an extension of stay, or a change of status. The final rule became effective on September 23, 2003. However, in order to avoid disruption in the ability of necessary health care workers to enter or remain in the U.S. on a temporary basis, this requirement will not be enforced until July 26, 2004.

This time lag is in keeping with Legacy INS and U.S. Department of State (DOS) policy to waive the certification requirement until regulations are published. This continued waiver has certain strings attached. During the one-year grace period, the nonimmigrant health care worker who applies for admission to the U.S., an extension of stay, or change of status, will not be granted authorization to remain in the U.S. for more than one year. During that year, s/he will have to obtain the certificate and apply to extend the stay once that application has been made. It will not be possible to extend or change the stay after the one-year period without certification. This one-year limitation overrides the allowable timeframes for admission. That is, even though H1B status can be issued for three years, only one year will be given to a person without a VisaScreen certificate.

Since this one-year provision applies to applications for admission, it would seem that this is an important matter for any nonimmigrant health care worker who plans to travel. The appropriate period for readmission to the U.S. would now be one year, even if there are petitions approved for longer periods of time. Health care workers should check their I-94 cards carefully upon entry and make sure they obtain the needed certification and file to extend their statuses in a timely manner.

Effect of the Requirement on Immigrant Health Care Workers

Consistent with the CIS's position prior to publication of the final regulation, immigrant health care workers are required to present the certification to the DOS at the time of visa issuance or to the CIS in the case of adjustment of status. The Yates Memo, however, adds that the health care worker seeking to adjust status must present the certificate at the time the adjustment of status is filed. The reason is that the individual must be eligible for the benefit s/he is requesting (permanent resident status or the green card) at the time that the I-485 is filed. This contradicts the past practice of allowing the filing without the certificate and then issuing a request for evidence (RFE) requiring the certificate at a later stage in the case. The certificate could be issued after the case is filed, as long as it is available in time to meet the RFE deadline. This presents a significant new hardship to health care workers who wish to process through AOS. It can take 3-4 months to obtain the certificate. This will, unfortunately, extend the time it takes to file their I-485s and for them to obtain their green cards, potentially creating other problems in their abilities to maintain status in the U.S., since they will not be able to obtain the EAD for work authorization until they are able to file their I-485s.

Organizations Authorized to Issue Certificates

Finally, the Yates Memo reiterated the procedures for a credentialing organization to obtain authorization to issue the VisaScreen certificate. The Law Office of Sheela Murthy is able and willing to assist any organization interested in becoming an authorized credentialing organization for health care workers. We believe that the more authorized organizations there are, the better the result for our health care clients and the more expeditiously the certificates will be issued to them. Moreover, competition among credentialing organizations will keep the application fees reasonable.

Conclusion

The laws establishing the requirements for applicants seeking entry to the United States as health care workers continue to rapidly evolve. The Law Office of Sheela Murthy is committed to providing MurthyDotCom and MurthyBulletin readers with the most current and pertinent information, helping our health care organizations and their professionals to stay abreast of these changes.