Memo on Adjusting Health Care Workers
Jan 28, 1997
From: Office of Examination (HQEXM)
To: Regional Directors
District Directors
Service Center Directors
Director, Office of Administrative Appeals
Officers-in-Charge
Officer of Field Operations
Immigration Officer Training Academies
Background
Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) created a new exclusion ground for "any alien who seeks to enter the United States for the purpose of performing labor as a health-care worker, other than a physician." The new section 212(a)(5)(C) of the Immigration and Nationality Act (Act) requires that all aliens who seek adjustment of status under section 245 of the Act or apply for an immigrant visa based on an employment-based immigrant classification to work as health- care workers are excludable unless they have a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or a certificate from an equivalent credentialing organization approved by the Attorney General, in consultation with the Department of Health and Human Services, verifying the alien's training, licensing, experience, and competency in English appropriate to the position in which the alien will be employed. Section 343 of the IIRAIRA was effective on September 30, 1996, the date the President signed the legislation. While it is clear that a certificate from CGFNS will be required for all aliens who seek to enter the United States to perform services as registered nurses, the Service has yet to determine which occupations are "health-care professions" and which entities will be designated credentialing organizations for other health care professions. The effect of section 343 of the IIRAIRA on nonimmigrant petitions and entries is addressed in these instructions.
I. Adjudication of Employment-Based Petitions
Until further notice, service centers must continue to adjudicate Form I-140 petitions filed on behalf of beneficiaries who will be working as health-care workers under the current regulations and policies. In adjudicating a Form I-140 petition filed on behalf of a health-care worker, the service centers should not consider this new exclusion ground.
II. Eligibility to Apply for Adjustment of Status
Until further notice, a beneficiary of an approved employment-based immigrant petition who will be working as a health-care worker remains eligible to file for adjustment of status, notwithstanding this provision. The beneficiary will be eligible to apply for employment authorization and, if necessary, advance parole.
III. Adjudication of the Adjustment of Status Application
A. Registered Nurses
Effective immediately, Service offices may not grant an application for adjustment of status for an alien who is applying for adjustment of status based on an approved employment-based petition (Form I-140) to work as a registered nurse unless the alien presents or the alien's file or petition includes a CGFNS certificate issued to the alien. If the applicant does bit gave a CGFNS certificate, the application for adjustment of status much be held in abeyance until the applicant can obtain a CGFNS certificate.
B. Other Health-Care Workers (Except Registered Nurses or Physicians)
All other applications for adjustment of status filed by aliens who are the beneficiaries of approved employment- based immigrant petitions to work as health care workers, except registered nurses and physicians, must be held in abeyance until further notice. If an application for adjustment of status is held in abeyance, the applicant may continue to apply for employment authorization and if necessary, advance parole. While Congress did not define the term "health-care worker" in the legislation, the legislative history indicates that the term included physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, physician assistant and other occupations. See Conf. Rep. 104-828, 104th Cong., 2nd Sess. 226.
IV. Nonimmigrants
Congressional intent is clear that, notwithstanding any international trade agreements or treaties, a "health-care worker" subject to prescreening under this section should include any alien, except a physician, seeking an immigrant or nonimmigrant visa as a nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, physician assistant. The majority of affected visa and visa-exempt applicants will be applying upon service-approved petitions. Canadian TN immigrants may be the only non-petition based visa classification to fall within this affected class of inadmissibility.
In order to provide sufficient time to devise operating procedures and the selection of certifying organizations, the Department of State (State) and the Service have agreed to a blanket waiver of inadmissibility under section 212(a)(5)(c) for nonimmigrant health care workers lacking the required CGFNS certificate or other certification pursuant to section 212(d)(3)(A) until such time as appropriate certification procedures have been put in place. The Service will also waive inadmissibility under section 212(a)(5)(c) pursuant to section 212(d)(3)(B) for aliens already in possession of nonimmigrant visas or who are visa- exempt aliens, including Canadians applying for admission as TN's. Under this blanket waiver, Service officers at U.S. Ports-of-Entry and foreign pre-clearance sites may accept applications for waivers. Any other wise admissible nonimmigrant health-care worker who receives a waiver for section 212(a)(5)(c) inadmissibility shall be authorized admission into the United States with a single-entry Form I- 94 with a validity date of six (6)MONTHS. Otherwise admissible dependents covered by the blanket policy will also be authorized admission into the United States for a time coinciding with that of the principal alien.
V. Immigrants
While the Department of State has ceased issuing immigrant visas to aliens seeking to enter the United States for the purpose of performing labor as health-care workers, a number of aliens may seek entry as immigrants without the required certification. The Service has no legal authority to admit them as immigrants. Consequently, alien health-care workers (other than physicians) who are applying for admission with immigrant visas based upon offers on employment in the health care field must be placed in exclusion or removal proceedings unless the alien is already in possession of the required CGFNS certiface. Any dependents will also be placed in exclusion proceedings.
If there are any questions concerning this provision, please contact Michael Straus, HQBEN, at (202)514-5014.
Louis D. Crocetti, Jr.Associate Commissioner