The ABC S Of Immigration: Certifications of Foreign Health Care Workers by Gregory Siskind

Transcription

1 The ABC S Of Immigratin: Certificatins f Freign Health Care Wrkers by Gregry Siskind Why d health care wrkers require special certificatin? In 2003, the Department f Hmeland Security issued lng-awaited final regulatins gverning health care wrkers n nn-immigrant visas. The rule fllws the Octber 2002 release f prpsed regulatins and represents the final implementatin f health care wrker prvisins included in Sectin 343 f the Illegal Immigratin Refrm and Immigrant Respnsibility Act f 1996 ("The 1996 Act"). That law created a new grund f inadmissibility fr health care wrkers unless the wrkers have a certificate frm an apprved rganizatin verifying the wrker's credentials. Sectin 343 f the 1996 Act prvided a new grund f inadmissibility fr health care wrkers unless the wrker culd present a certificate frm the Cmmissin n Graduates f Freign Nursing Schls (CGNFS) r an equivalent credentialing rganizatin apprved by bth USCIS and the Department f Health and Human Services. The credentialing must verify: 1. The alien's educatin, training, license, and experience meet all applicable requirements fr admissin int the US, are cmparable with that required fr a similar American health care wrker, and the license is unencumbered. 2. The alien has the level f cmpetence in ral and written English cnsidered by HHS and the Department f Educatin t be apprpriate fr health care wrk f the kind in which the alien will be wrking. 3. If a majrity f states licensing the prfessin recgnize a test predicting an applicant's success n the prfessin's licensing r certificatin examinatin, the alien has passed such a test r examinatin. The fllwing health care wrkers are cvered under the health care wrker certificate rules: Nurses (including Registered Nurses and Licensed Vcatinal/Practical Nurses) Occupatinal Therapists Physical Therapists Medical Technlgists (Clinical Labratry Scientists) Medical Technicians (Clinical Labratry Technicians) Speech Language Pathlgists and Audilgists Physician Assistants Which rganizatins are authrized t issue health care wrker certificates? Fr nurses, Sectin 212(r) f the Immigratin and Natinality Act prvides that CGFNS ( can alternatively certify a nurse wh has a valid and unrestricted license in a US state where the nurse intends t be emplyed, the nurse has passed the Natinal Cuncil Licensure Examinatin (NCLEX) and the nurse meets the fllwing requirements:

2 1. The curse instructin was in English; and 2. The nursing prgram was lcated in a cuntry which was designated by CGFNS as having nursing prgrams f sufficient quality and English instructin; and 3. The nursing prgram was in peratin n r befre Nvember 12, 1999 r has been apprved by CGFNS if it was later established. CGFNS has designated the fllwing cuntries fr purpses f the alternate certificatin prcess: Australia, Canada, Ireland, New Zealand, Suth Africa, the United Kingdm and the United States. CGFNS is als authrized t issue health care wrker certificates fr any f the ther six kinds f health care wrkers. Als nte that the Natinal Bard fr Certificatin in Occupatinal Therapy ( can certify ccupatinal therapists and the Federal Credentialing Cmmissin n Physical Therapy ( can certify physical therapists. If the law requiring health care wrker certificates was passed in 1996, hw cme they still are nt required in all cases? The 1996 Act's health care prvisins have been implemented in three interim rules. The first was released in 1998 fllwing the filing f a class actin law suit challenging the lng delay in implementing interim regulatins fllwing passage f the 1996 Act. Frm the passage f the 1996 Act until that regulatin was issued, n health care wrkers were admitted t the US. Tw mre regulatins - ne in 1999 and ne in were issued finally allwing all health care wrkers cvered under the 1996 Act t be admitted. The first regulatin identified seven categries f health care wrkers subject t the 1996 Act. They are nurses, physical therapists, ccupatinal therapists, speech-language pathlgists, medical technlgists (als knwn as clinical labratry scientists), medical technicians (als knwn as clinical labratry technicians) and physician assistants. In that rule, CGFNS as well as NBCOT, the rganizatin that credentials ccupatinal therapists, were authrized t certify nurses and ccupatinal therapists, respectively. The rule als established the apprpriate English testing levels fr RNs and OTs and specified exemptins frm the English rules. The first interim rule nly applied t immigrants and nt nn-immigrants. The law was waived fr nn-immigrants until issuance f a final regulatin. Until nw, such nn-immigrant wrkers have been granted ne-year perids f admissin t the US. The secnd interim rule temprarily authrized CGFNS t issue certificates t physical therapists and ccupatinal therapists seeking immigrant visas. It als authrized the Freign Credentialing Cmmissin n Physical Therapists (FCCPT) t issue certificates t immigrant physical therapists. Apprpriate English test scres were als determined fr PTs. The third interim rule finally included the rest f the designated health care prfessins and listed English scres fr them. In Octber f 2002, the USCIS prpsed a final rule fr certifying health care wrkers. The rule had the fllwing majr prpsals: 1. A list f rganizatins authrized t issue certificates

3 2. A descriptin f a certificate 3. The English language requirements 4. Alternative certificatin rules fr nurses 5. A streamlined prcess fr nurses, PTs, OTs and speech language pathlgists and audilgists 6. The prcedures fr qualifying as a certifying rganizatin 7. A list f standards that an rganizatin must meet t certify health care wrkers and 8. A requirement t review peridically the perfrmance f certifying rganizatins. The prpsed rule wuld als fr the first time cver nn-immigrants. What will happen t the apprvals fr previusly authrized certifying rganizatins? The rganizatins previusly authrized under the prir interim rules t certify health care wrkers (except CGFNS) shall be required t be re-certified. Hwever, thse rganizatins will retain interim authrity t cntinue issuing certificatins. These rganizatins had until January 28, 2004 t submit an I-905 Applicatin fr Authrizatin t Issue Health Care Wrker Certificates. CGFNS will still have t submit an applicatin (withut paying a fee) by that date as well and CGFNS will still have t be subject t nging review by USCIS. Are Nn-Immigrants Cvered by the New Law? Yes. Beginning n July 25, 2004, nn-immigrants are cvered by the VisaScreen rules (see belw fr mre infrmatin n this). Als, the vast majrity f certificatins are currently being issued by CGFNS. Hwever, spuses and dependants f immigrants r nnimmigrants wh are the primary applicants are nt cvered even if the spuse intends t wrk in health care. But all peple applying fr H, J and O visas are cvered. Als, TN visa hlders are cvered despite prtests that the NAFTA Treaty prhibits this. Nn-immigrants cming in fr training under F, H-3 and J visas are NOT cvered either. Nte that VisaScreen is a trademarked name f CGFNS exam and ther services call their certificatins by ther names. VisaScreen has, hwever, becme the cmmn name used t refer t the certificatin requirement and we will use that term in this article even when the actual certificate may g by a different name with ther authrized certificatin agencies. On July 19, 2004, the USCIS issued an extensin f this deadline fr SOME nnimmigrants. The fllwing wrkers have until July 25, 2005 t meet the VisaScreen rules: Mexican and Canadian health care wrkers wh held TN r TC status prir t September 23, 2003 The applicant held a US license as f September 23, 2003 Which Kinds f Health Care Wrkers are Cvered by the Certificatin Requirements? As in the prpsed rule and the interim rules, seven ccupatins are cvered. They are

4 1. Registered Nurses 2. Physical therapists 3. Occupatinal therapists 4. Speech-language pathlgists 5. Medical technlgists (als knwn as clinical labratry scientists) 6. Medical technicians (als knwn as clinical labratry scientists) and 7. Physician Assistants The USCIS cnsidered and has chsen nt t expand this list and has als decided nt t define these health care ccupatins. Instead, they will cntinue with the practice f reviewing the duties f a wrker n a case-by-case basis. Hw Will Health Care Wrkers Trained in the US be Treated? The USCIS has retained the cntrversial requirement frm the prpsed rule that health care wrkers wh pssess state licenses r wh were trained in the US must still be certified. Accrding t USCIS, they are strictly interpreting the law and Cngress expressed n intentin t exempt these wrkers. Als, the USCIS argues that the state screening prcesses alne wuld nt demnstrate applicants' English skills and cmparable training and unencumbered licensing. The USCIS did, hwever, accept the suggestin f CGFNS in the final rule t allw fr a mre streamlined certificatin prcess fr thse nurses wh trained in the US r wh already are licensed here. Under the CGFNS prpsal, a nurse wh graduated frm an entry-level prgram accredited by the Natinal League fr Nursing Accreditatin Cmmissin (NLNAC) r the Cmmissin Cllegiate Nursing Educatin (CCNE) wuld be exempt frm the educatinal cmparability review and English language prficiency testing. Als, nurses educated in the US in any ther named discipline and wh have graduated frm a prgram accredited by the discipline wuld be evaluated under this same prcess. The USCIS believes that this will substantially shrten the certificatin prcess and ease the paperwrk burdens n nurses. The USCIS and the Department f Health and Human Services have als agreed t use the same kind f streamlining fr the fllwing grups: 1. Fr ccupatinal therapists, graduatin frm a prgram accredited by the Accreditatin Cuncil fr Occupatinal Therapy Educatin (ACOTE) r the American Occupatinal Therapy Assciatin (AOTA). 2. Fr physical therapists, graduatin frm a prgram accredited by the Cmmissin n Accreditatin in Physical Therapy Educatin (CAPTE) f the American Physical Therapy Assciatin (APTA); and 3. Fr speech language pathlgists and audilgists, graduatin frm a prgram accredited by the Cuncil n Academic Accreditatin in Audilgy and Speech Language Pathlgy (CAA) f the American Speech-Language-Hearing Assciatin (ASHA). Fr nw, ther health care wrkers nt listed abve need t g thrugh a nrmal

5 certificatin. When and Hw will the Certificatin be Presented t the USCIS? First, certificatins will nly be valid fr a five-year perid. S it is pssible that sme nurses may have t g thrugh the prcess mre than nce if they are in the US fr an extended perid n a nn-immigrant visa r they simply wait several years befre applying fr admissin t the US. In the prpsed regulatin, the USCIS said that it wuld NOT be necessary t present the credentialing certificatin each time a wrker enters the US. The presentatin f an I-94 r a fee receipt shwing that the wrker was prcessed fr admissin under NAFTA can be used as evidence that the wrker previusly presented a certificate. NOTE, HOWEVER, that the USCIS has changed its mind. It will nw nly accept a valid health care wrker certificate r certified statement as evidence that the wrker is admissible. Accrding t the USCIS, the prpsal wuld nt wrk because I-94s are suppsed t be surrendered fr many travelers and I-94s dn't always cntain infrmatin n a wrker's ccupatin. Green card hlders, hwever, d nt need t shw the certificate t be admitted each time. Hw Will Certificates Be Presented When Applying fr a Change f Nn-Immigrant Status in the US? The new rule adds a sectin that utlines the prcedure fr submitting a certificate when a change f nnimmigrant status is requested in the US. Due t cncerns that requiring wrkers already in the US in nnimmigrant visas t immediately get certificatins culd disrupt the delivery f health care, the USCIS has decided that they will cntinue waiving the certificatin requirement fr ONE year fr health care wrkers already in the US. The USCIS believes this will allw plenty f time fr wrkers t meet the requirements fr certificatin and fr the credentialing rganizatins t get ready fr a much bigger wrklad. Therefre, any nnimmigrant health care wrker admitted n r befre July 26, 2004 will have the certificatin requirement waived. Furthermre, any petitin r applicatin t extend a wrker's authrized stay r change his r her status will be denied unless the alien btains the required certificatin n later than ne year after the date f the wrker's admissin. Hw Will Certificates Be Presented When Applying fr an Immigrant Status in the US? Any applicant cming t the US as an immigrant r is applying fr adjustment f status t perfrm labr in a health care ccupatin must submit a certificatin at the time f visa issuance r adjustment f status. S it shuld nt be necessary t have VisaScreen cmpleted at the time f filing the I-140. Hw Will Organizatins Qualify t Issue Health Care Wrker Certificates? CGFNS is the nly rganizatin that can - at least initially - certify wrkers in any f the seven cvered prfessins. They will still be subject t versight and culd lse their accreditatin if the USCIS finds prblem with their credentialing prcess. All rganizatins must submit an I-905 Applicatin fr Authrizatin Wrkers (thugh CGFNS des nt need t pay the $230 fee). All applicatins are ging t be handled by the USCIS Nebraska Service Center.

6 The USCIS will ntify the public f new rganizatins apprved fr certifying by publishing a public ntice in the Federal Register and n its web site at The list will als identify rganizatins whse authrizatin has been terminated. Mre than ne rganizatin can be apprved t issue certificates fr the same ccupatin and such apprvals shall be valid fr five years at a time. The USCIS has laid ut in the final rule the specific standards that must be met in rder t qualify t issue certificates. There are fur guiding principles t the standards: 1. The USCIS will nt apprve an rganizatin unless the rganizatin is independent and free f material cnflicts f interest regarding whether an alien receives a visa. 2. The rganizatin shuld demnstrate an ability t evaluate bth the freign credentials apprpriate fr the prfessin and the results f examinatins fr prficiency in the English language apprpriate fr the health care field in which the alien wrks. 3. The rganizatin shuld als maintain cmprehensive and current infrmatin n freign educatinal institutins, ministries f health and freign health care licensing jurisdictins. 4. If the health care field is ne fr which a majrity f states require a predictr examinatin (such as nursing), the rganizatin shuld demnstrate an ability t cnduct the examinatin utside the US. A change frm the prpsed regulatins is the additin f language clarifying that a ntfr-prfit crpratin that has a self-perpetuating bard f directrs may still demnstrate that it is independent and free f material cnflicts f interest regarding whether the alien receives a visa. Anther additin t the prpsed rules is that credentialing rganizatins will be required t request evidence f a wrker's degree and transcript frm the issuing educatinal and licensing authrities rather than frm the applicants. This new rule is designed t reduce fraud. The regulatins als have a number f specific requirements that must be met by certifying rganizatins including the fllwing: the rganizatin must be independent f any ther grup that functins as a representative f the ccupatin r prfessin r serves as r is related t a recruitment/placement rganizatin the rganizatin must be able t render impartial advice regarding an individual's qualificatins regarding training, experience and licensure. the rganizatin must be cmpletely independent in all f its day-t-day activities. the rganizatin shuld prvide applicants with their results as quickly as pssible and if an applicant fails, the applicant shuld be quickly prvided with infrmatin n his r her areas f deficiency the rganizatin shuld take steps t ensure applicants' infrmatin is kept

7 cnfidential the certifying rganizatin must have a frmal plicy fr renewing the certificatin if an applicant's riginal certificatin has expired befre the individual first seeks admissin t the US r applies fr adjustment f status the rganizatin shall prvide all qualified applicants with a certificate in a timely manner the rganizatin shall examine, evaluate and validate the academic and clinical requirements applied t each cuntry's accrediting bdies r the educatinal institutin the rganizatin shuld evaluate the licensing and credentialing systems f each cuntry r licensing jurisdictin t see which systems are equivalent t that f the majrity f licensing jurisdictins in the US the rganizatin shall be prepared t submit infrmatin requested by USCIS fr use in investigating allegatins f nn-cmpliance with standards the rganizatin shall establish prcedures t track the ability f certificate hlders t pass US licensing r certificatin exams. Infrmatin n passage rates shall be supplied t HHS n an annual basis r the USCIS as part f the five-year reauthrizatin applicatin. What Kinds f Organizatins Can Qualify t Be a Credentialing Organizatin? Accrding t the USCIS, any rganizatin, including a state agency, can be fund eligible fr authrizatin t issue certificates as lng as it meets the majrity f the standards nted abve. Hw Will the USCIS Mnitr Credentialing Organizatins? The USCIS has stated that it intends t develp a prcess t mnitr credentialing rganizatins t ensure that the rganizatin cntinues t fllw the standards in the new rule. As part f this prcess, the USCIS will review and reauthrize prgrams every five years. If the USCIS makes adverse findings, it can initiate terminatin prceedings. It als may cnduct additinal reviews at any time in the five-year perid. CGFNS sught t be exempt frm this requirement, but were rebuffed by USCIS. Hw Much Time Will Credentialing Organizatins Have t Issue Certificates? The USCIS cnsidered requiring rganizatins t issue certificates in a specified perid f time. But instead they decided t simply state in the regulatins that rganizatins must issue certificates in a timely manner t as t minimize any delays that may affect a wrker's ability t prceed with his r her applicatin fr an immigratin benefit. It did, hwever, state in the regulatin's preamble that it reserves the right t initiate terminatin prceedings against rganizatins that are unduly slw in issuing certificates. It als can waive the certificatin requirement in individual cases upn request. Hw Much Can a Credentialing Organizatin Charge fr a Certificate? The USCIS des nt specify hw much an rganizatin can charge, but the regulatin des state that the fee charged shuld nt unduly impair a wrker's ability t seek an immigratin benefit.

8 Hw Can a Certificate Be Revked frm a Wrker? A credentialing rganizatin must develp plicies and prcedures fr revking certificates if it finds that a wrker was nt eligible t receive the certificate at the time it was issued. Als, fr wrkers whse certificates are revked, credentialing rganizatins are respnsible fr ntifying the Nebraska Service Center, which may revke the visa petitin and initiate remval prceedings. The USCIS has added a requirement since the prpsed regulatin that requires an rganizatin issuing certificates include in its revcatin prcess a mechanism t revke a certificate when it learns that a hlder is n lnger eligible t hld a certificate. What Des the Certificate Need t Include? The certificatin needs t include the fllwing infrmatin: 1. The name, designated pint f cntact t verify the validity f the certificate, address and telephne number f the certifying rganizatin; 2. The date the certificate was issued? 3. The health care ccupatin fr which the certificate was issued; and 4. The alien's name and date and place f birth. What are the Testing Organizatins and Scres Apprved fr the English Language Certificatin Requirement? The tests and scres will be published peridically in the Federal Register and n the USCIS web site at Scre requirements are currently as fllws: 1. Physical and Occupatinal Therapists - ETS: TOEFL: Paper-based 560, Cmputer-based 220; TWE: 4.5; TSE: 50; 2. Nurses and ther health care wrkers requiring a bachelrs degree - ETS: TOEFL: Paper-based 540, Cmputer-based 207; TWE: 4.0; TSE: 50; TOEIC Service Internatinal: TOEIC: 725; plus TWE: 4.0 and TSE: 50; r IELTS: 6.5 verall with spken band scre f 7.0 (this wuld require the Academic mdule). 3. Occupatins requiring less than a bachelr's degree - ETS: TOEFL: Paper-based 530, Cmputer-based 197; TWE: 4.0; TSE: 50; TOEIC Service Internatinal: TOEIC: 700; plus TWE: 4.0 and TSE: 50; r IELTS: 6.0 verall with spken band scre f 7.0 (this wuld require the Academic r the General mdule). Nte that graduates f health prfessin prgrams in Australia, Canada (except Quebec),

9 Ireland, New Zealand, the United Kingdm and the United States are deemed t have met the English language requirements. Gregry Siskind (gsiskind@visalaw.cm) is a partner in the law firm f Siskind, Susser, Haas and Devine ( which has ffices in the United States and arund the wrld. He is an active member f the American Immigratin Lawyers Assciatin (AILA). He is a member f the American Bar Assciatin (ABA), where he currently serves as Chairman f the Law Practice Management Publishing Bard and n the Gverning Cuncil f the Law Practice Management Sectin. He was ne f the first lawyers in the cuntry (and the very first immigratin lawyer) t set up a website fr his practice and he was the first attrney in the wrld t distribute a firm newsletter via listserv. He is a c-authr f The J Visa Guidebk published by LexisNexis Matthew Bender, and the authr f The Lawyer's Guide t Marketing n the Internet, published by the ABA. He graduated magna cum laude frm Vanderbilt University and received his law degree frm the University f Chicag.