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Under the present regulations, any alien who seeks admission to the United States for performing work as a health care worker, other than a physician has to obtain a certification from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent certifying organization. The health care workers who need certification are nurses (registered nurses, licensed practical nurses, and licensed vocational nurses), physical therapists, occupational therapists, speech – language pathologists, and audiologists, medical technologists, medical technicians, and physician assistants.
The DHS and DOS have jointly exercised discretion to waive these requirements for foreign health care worker certification for non immigrant health care workers until final regulations are promulgated. This waiver allowed non immigrant health care workers to enter the United States for the purpose of employment as health care workers without having to obtain the health care worker certification. The DHS and DOS exercised their waiver discretion after carefully considering the complexity of the implementation issues, including how the health care certificate requirements affect United States obligations under international agreements and need for health care facilities across the country to remain full staffed and provide a high quality of service to the public.
This new regulation has no effect on adjudication of and processing of immigrant worker petitions because immigrant health care workers are currently required to present such certification along with the petitions filed by their employers. Immigrants coming to the United States for the primary purpose of working as nurses, physical therapists, occupational therapists, speech-language pathologists, and audiologists, medical technologists, medical technicians, and physician assistants, are required to obtain certification indicating that they been found to meet the requirements of the law. They must present the certification to a consular officer at the time of visa interview, or to the DHS at the time of filing the petitions by the employer, and at the time of filing the application for adjustment of status.
The new rule states that certain non immigrant health care workers, predominantly those in the H, J, O and TN visa categories will now be subject to certification requirements. Accordingly, non immigrants seeking admission to the United States and changing status and or requesting an extension of stay must obtain health care worker certification if their primary purpose for coming to the United States is employment in one of the above seven health care occupations.
The new regulations mandating the certification in the above seven categories for non immigrants will take effect from September 23, 2003. Pursuant to its discretion the DHS has waived the requirement for non immigrants for another period of one year after the date of publication of the new rule. This will allow all non immigrants currently working within the United States or seeking visas into the United States, sufficient time to complete all required testing and certification requirements. This will allow them to continue working without causing an immediate and significant disruption in the United States health care system.
At the same time this will also provide authorized credentialing organizations sufficient time to review and certify the qualifications of this additional population in need of certification. One year after the date of publication of the final rule, all non immigrant health care workers will be required to present the requisite certification for admission to the United States, and also when they apply for extension of stay or changing status in order to work in one of the above mentioned occupations.
This rule also describes the English language requirements the health care workers must meet in order to obtain certification in their respective occupations, and lists the acceptable testing organizations. The health care workers should be required to present the certification each time the alien seeks admission to the United States, applies for extension of stay, and change of status or for adjustment of status. To sum up all non immigrant health care workers under the above seven categories beginning September 23, 2004 need to obtain certification just like immigrant health care workers in order to obtain visa, or to apply for extension of stay, change of status, or for adjustment of status.
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DHS implements new regulations for Nonimmigrant Health Care workers |
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