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 Nationality Act.

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 certification.[1]  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.

Sincerely,

AMERICAN IMMIGRATION LAW FOUNDATION
TRACI HONG
Attorney at Law