Agency Memos & Announcements, Federal Agencies

DOS Cable on Revised Health Care Worker Certification Requirement

5/6/98 AILA Doc. No. 98050659. Consular Processing, Physicians & Healthcare
R 020543Z MAY 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
INFO USINS WASHDC

UNCLAS STATE 079570
VISAS
E.O. 12958: N/A
TAGS: CVIS

Subject P.L. 104-208 Update No. 37 -- INA 212(a)(5)(C): Foreign Health Workers -- Reinterpretation of Occupations Requiring Certification

Ref: A) 96 State 262098 B) 97 State 229958 C) 97 State 179263

1. Summary: This cable changes the Department's policy relating to visa processing in connection with alien health care occupations under INA 212(a)(5)(C). Previously, the Department had instructed posts that all foreign health care workers were ineligible for visa issuance pending establishment of an appropriate health care certification process as required under INA 212 (a)(5)(C) (see Reftel B). Blanket 212(d)(3)(A) waivers for nonimmigrant alien health care workers were authorized. Posts, however, were instructed to hold in abeyance all immigrant visa applications for alien health care workers with employment-based petitions in the health care area. The department has recently become aware of an INS memorandum which reinterpreted the definition of alien "health care worker," limiting its ambit to specific categories that had been delineated by congress in its conference report on the Illegal Immigration Reform And Immigrant Responsibility Act of 1996 (P.L. 104-208), as listed in Paragraph 3, below. Consequently, consular officers shall process to conclusion those immigrant cases that have been held in abeyance, and any newly received cases, with petitions approved on behalf of beneficiaries engaged in health care occupations falling outside the specific health care categories listed below. See Paragraph 5 for specific instructions. End summary.

2. As discussed in Reftels, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), Sec 343, added paragraph "C" to INA 212(a)(5), requiring "alien health care workers," other than physicians, to obtain certification from the Commission on Graduate Foreign Nursing Schools (CGFNS), or other equivalent entity before entering the united states for the purpose of performing labor as a health-care worker. In January 1997, Department provided initial guidance for implementation of this section and announced that ins had agreed to a blanket INA 212(d)(3)(A) waiver for NIV applicants pending promulgation of regulations for the certification procedure. This cable does not affect the existing waiver arrangements for nonimmigrant health care workers.

3. INS defined "health care worker" under INA 212(a)(5)(C) as those health care classifications specifically cited by Congress in its conference committee report on P.L. 104-208. Those classifications are:

  • Nurses;
  • Physical Therapists;
  • Occupational Therapists;
  • Speech Language Pathologists;
  • Medical Technologists;
  • Medical Technicians;
  • physician assistants.

4. The situation may arise where it is unclear if an applicant's profession falls within one of the above categories (for example does a "dental assistant" fall within the category "physician assistant"

  • ). In its Dictionary of Occupational terms, the Department of Labor has defined the above occupations. These definitions are listed below to aid posts should such a situation arise. Additionally, posts of course are welcome to seek guidance from VO/L/A:
    • Nurse, Professional (medical ser.) [alternate titles -- nurse; nurse-certified; nurse-licensed; nurse-registered] : A term applied to persons meeting the educational, legal, and training requirements to practice as professional nurses, as required by a state board of nursing. Performs acts requiring substantial specialized judgment and skill in observation, care, and counsel of ill, injured, or infirm persons and in promotion of health and prevention of illness. Classifications are made according to type of nursing activity engaged in as director, nursing service (medical ser.); nurse, general duty (medical ser.); nurse, private duty (medical ser.);
    • Physical Therapist (education; medical ser.) [alternate titles -- physiotherapist]: Plans and administers medically prescribed physical therapy treatment for patients suffering from injuries, or muscle, nerve, joint and bone diseases, to restore function, relieve pain, and prevent disability: reviews physician's referral (prescription) and patient's condition and medical records to determine physical therapy treatment required. Tests and measures patient's strength, motor development, sensory perception, functional capacity, and respiratory and circulatory efficiency, and records findings to develop or revise treatment programs. Plans and prepares written treatment program based on evaluation of patient data. Administers manual exercises to improve and maintain function. Instructs, motivates, and assists patient to perform various physical activities, such as nonmanual exercises, ambulatory functional activities, daily-living activities, and in use of assistant and supportive devices, such as crutches, canes, and prostheses. Administers treatments involving application of physical agents, using equipment, such as hydrotherapy tanks and whirlpool baths, moist packs, ultraviolet and infrared lamps, and ultrasound machines. Evaluates effects of treatment at various stages and adjusts treatments to achieve maximum benefit. Administers massage, applying knowledge of massage techniques and body physiology. Administers traction to relieve pain, using traction equipment. Records treatment, response, and progress in patient's chart or enters information into computer. Instructs patient and family in treatment procedures to be continued at home. Evaluates, fits, and adjusts prosthetic and orthotic devices and recommends modification to orthotist (medical ser.) 078.261-018. Confers with physician and other practitioners to obtain additional patient information, suggest revisions in treatment program, and integrate physical therapy treatment with other aspects of patient's health care. Orients, instructs, and directs work activities of assistants, aides, and students. May plan and conduct lectures and training programs on physical therapy and related topics for medical staff, students, and community groups. May plan and develop physical therapy research programs and participate in conducting research. May write technical articles and reports for publications. May teach physical therapy techniques and procedures in educational institutions. May limit treatment to specific patient group or disability or specialize in conducting physical therapy research. In facilities where assistants are also employed, may primarily administer complex treatment, such as certain types of manual exercises and functional training, and monitor administration of other treatments. May plan, direct, and coordinate physical therapy program and be designated director, physical therapy (medical ser.). Must comply with state requirement for licensure;
    • Occupational Therapist (medical ser.) Plans, organizes, and conducts occupational therapy program in hospital, institution, or community setting to facilitate development and rehabilitation of mentally, physically, or emotionally handicapped: plans program involving activities, such as manual arts and crafts; practice in functional, prevocational, vocational, and homemaking skills, and activities of daily living; and participation in sensorimotor, educational, recreational, and social activities designed to help patients or handicapped persons develop or regain physical or mental functioning or adjust to handicaps. Consults with other members of rehabilitation team to select activity program consistent with needs and capabilities of individual and to coordinate occupational therapy with other therapeutic activities. Selects constructive activities suited to individual's physical capacity, intelligence level, and interest to upgrade individual to maximum independence, prepare individual for return to employment, assist in restoration of functions, and aid in adjustment to disability. Teaches individuals skills and techniques required for participation in activities and evaluates individual's progress. Designs and constructs special equipment for individual and suggests adaptation of individual's work-living environment. Requisitions supplies and equipment. Lays out materials for individual's use and cleans and repairs tools at end of sessions. May conduct training programs or participate in training medical and nursing students and other workers in occupational therapy techniques and objectives. May plan, direct, and coordinate occupational therapy program and be designated director, occupational therapy (medical ser.);
    • Speech Pathologist (profess. & kin.) [alternate titles: speech clinician; speech therapist] Specializes in diagnosis and treatment of speech and language problems, and engages in scientific study of human communication: diagnoses and evaluates speech and language skills as related to educational, medical, social, and psychological factors. Plans, directs, or conducts habilitative and rehabilitative treatment programs to restore communicative efficiency of individuals with communication problems of organic and nonorganic etiology. Provides counseling and guidance and language development therapy to handicapped individuals. Reviews individual file to obtain background information prior to evaluation to determine appropriate tests and to ensure that adequate information is available. Administers, scores, and interprets specialized hearing and speech tests. Develops and implements individualized plans for assigned clients to meet individual needs, interests, and abilities. Evaluates and monitors individuals, using audio-visual equipment, such as tape recorders, overhead projectors, filmstrips, and demonstrative materials. Reviews treatment plan, and assesses individual performance to modify, change, or write new programs. Maintains records as required by law, establishment's policy, and administrative regulations. Attends meetings and conferences and participates in other activities to promote professional growth. Instructs individuals to monitor their own speech and provides ways to practice new skills. May act as consultant to educational, medical, and other professional groups. May conduct research to develop diagnostic and remedial techniques. May serve as consultant to classroom teachers to incorporate speech and language development activities into daily schedule. May teach manual sign language to student incapable of speaking. May instruct staff in use of special equipment designed to serve handicapped. See audiologist (medical ser.) 076.101-010 for one who specializes in diagnosis of, and provision of rehabilitative services for, auditory problems;
    • Medical Technologist, Teaching Supervisor (medical ser.): Teaches one or more phases of medical technology to students of medicine, medical technology, or nursing arts, or to interns (medical ser.): organizes and directs medical technology training program. Formulates curriculums, outlines course materials, and establishes criteria in other matters affecting education and welfare of students. Develops educational policies concerning teaching methods. - Supervises other instructors. May act as liaison officer between college or university and laboratory or hospital to coordinate academic and clinical training. May specialize in teaching one phase of medical technology;
    • Medical-Laboratory Technician (medical ser.) [alternate titles: laboratory assistant; medical technician]: Performs routine tests in medical laboratory to provide data for use in diagnosis and treatment of disease: conducts quantitative and qualitative chemical analyses of body fluids, such as blood, urine, and spinal fluid, under supervision of medical technologist (medical ser.) 078.261-038. Performs blood counts, using microscope. Conducts blood tests for transfusion purposes. May draw blood from patients finger, ear lobe, or vein, observing principles of asepsis to obtain blood samples. May specialize in hematology, blood bank, cytology, histology, or chemistry; and
    • Physician Assistant (medical ser.): Provides health care services to patients under direction and responsibility of physician: examines patient, performs comprehensive physical examination, and compiles patient medical data, including health history and results of physical examination. Administers or orders diagnostic tests, such as X-ray, electrocardiogram, and laboratory tests, and interprets test results for deviations from normal. Performs therapeutic procedures, such as injections, immunizations, suturing and wound care, and managing infection. Develops and implements patient management plans, records progress notes, and assists in provision of continuity of care. Instructs and counsels patients regarding compliance with prescribed therapeutic regimens, normal growth and development, family planning, emotional problems of daily living, and health maintenance. May have training in particular medical specialty and be designated anesthesiologist assistant (medical ser.) or surgeon assistant (medical ser.).

    5. As a consequence of INS' more restrictive definitional interpretation, iv and niv applicants not falling within the above categories listed in Paragraph 3, i.e., chiropractors, dentists, dental technicians, dental assistants, acupuncturists, psychologists, nutritionists, etc., will not be required to obtain certifications under INA 212(a)(5)(C) and their visa cases should, therefore, be processed to conclusion. The majority of affected applicants are in the employment second and third preference immigrant categories and the nonimmigrant categories of h-1b, J, L, and TN.

    6. Posts should make appropriate arrangements for notifying visa applicants whose cases have been affected by this cable.

    Talbott

    • Accessible to Public.