Cite as "AILA InfoNet Doc. No. 00031602 (posted Mar. 16, 2000)"
March 15, 2000
Mr. Robert L. Bach
Executive Associate Commissioner for Policy and Planning
Immigration and Naturalization Service
425 I St. N.W., Rm. 5307
Washington D.C. 20536
Dear Mr. Bach:
I am writing on behalf of the American Immigration Law
Foundation (“AILF”), a non-profit organization dedicated to securing fair
and just application and administration of the immigration laws.
AILF’s mission includes promoting the prompt and efficient adjudication
of petitions and applications for immigration benefits under the Immigration and
AILF has long been concerned by the Immigration and
Naturalization Service’s delay in promulgating regulations to implement
certification for certain healthcare workers under §343 of the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), now codified
as §212(a)(5)(C) of the Immigration and Nationality Act (“INA”).
As you know, §343 of IIRIRA amended the INA to require certain
healthcare workers to be certified by a designated credentialing organization
before they can be admitted to the United States.
The statute directed the Attorney General, in consultation with the
Department of Health and Human Services and the Department of Education, to
designate the credentialing organizations that will issue the certifications.
As soon as this provision took effect on September 30,
1996, both the Immigration and Naturalization Service (“INS”) and the
American Consulates immediately stopped processing I-485 applications for
adjustment of status and immigrant visa applications filed by healthcare workers
and announced that these applications will not be adjudicated unless and until
the INS issued regulations implementing the statute.
On June 6, 1997, INS issued a field memorandum limiting the
certification requirement to seven healthcare occupations specifically mentioned
in the legislative history of the provision.
These occupations are: nurses, occupational therapists, physical
therapists, speech/language pathologists, medical technologists, medical
technicians and physician assistants. However, INS did not issue any
regulations to implement the certification provision until October 14, 1998,
more than two years after the certification provision went into effect.
Furthermore, the regulations promulgated covered only nurses and
occupational therapists. It is
unclear whether even these regulations would have been issued if INS had not
been sued by nurses and occupational therapists (represented by AILF and the law
firm of Dechert, Price & Rhoads) as well as the Commission on Graduates of
Foreign Nursing Schools (“CGFNS”) for its failure to implement the
INS later issued interim regulations on certification requirements for
physical therapists on April 30, 1999.
Unfortunately, INS has yet to promulgate regulations for
the remaining four healthcare occupations (speech/language pathologists, medical
technologists, medical technicians and physician assistants), even though more
than three years have passed since the certification provision became effective.
In the meantime, INS and the American Consulates continue to hold the
I-485 applications for adjustment of status and immigrant visa applications of
these healthcare workers in abeyance.
The lives of these healthcare workers and their families
have been put on hold for the last four years as a result of the INS’s failure
to issue regulations implementing the certification requirement for their
occupations. These healthcare
workers cannot change employers. They
cannot even be promoted, transferred, or have their jobs changed in any
substantial way without having to re-start the lengthy immigration process all
over again. They may even lose
their opportunity to immigrate altogether if their current employer merges or is
sold to another company.
Some of these healthcare workers have watched helplessly as
their children turn 21 and thereby lose the right to immigrate along with the
rest of the family. These children
will not be able to rejoin their family until 1) their healthcare worker parent
finally becomes a permanent resident, 2) petitions for them, and 3) immigrant
visas for sons and daughters of permanent residents become current.
This re-unification process could take as long as ten years depending on
the country of their birth. Other
healthcare workers have been and will continue to be separated from their
families, because their families are outside the United States waiting for the
healthcare worker’s immigrant visa processing to be completed before being
able to join them in the United States.
Such a lengthy delay in issuing regulations to implement
INA §212(a)(5)(C) violates the Immigration and Naturalization Service’s duty
to administer and enforce the Immigration and Nationality Act and to issue
necessary regulations to implement the Act under INA §103(a)(1) and (3).
Under the Administrative Procedures Act, the healthcare workers and their
families who have suffered and have been aggrieved by the Service’s failure to
issue regulations are entitled to a judicial review of this unreasonable delay
and to request the court to compel the issuance of these regulations.
AILF had been in the process of preparing a lawsuit on
behalf of these healthcare workers when it came to our attention that the
Service plans to issue regulations for the remaining healthcare occupations by
April 30, 2000. We have therefore
suspended our preparation in the sincere hope that the Service will timely
promulgate these regulations. However,
the INS should be aware that AILF remains committed to litigating on behalf of
these healthcare workers if it fails to issue the regulations in accordance with
its own deadline of April 30, 2000.
Should you have any questions or concerns regarding this
matter, please do not hesitate to contact me at (202) 371-6450 ext. 605.
AMERICAN IMMIGRATION LAW FOUNDATION
Attorney at Law
 Mahoney v. Reno,
No. 1:98CV02008SS (D.D.C. 1998); CGFNS v. INS, No. 1:98CV01230SS (D.D.C.