September 30, 2003 - On July 25, 2003, the Department of Homeland Security (DHS) published the final rule concerning Certificates for Certain Health Care Workers. The final legislation establishes a certification requirement ("VisaScreen") for non immigrants coming to the U.S. to work as health care workers (except physicians,) as well as those applying for a change or extension of status. The certification requirement was formerly waived for nonimmigrant health care workers and required only of immigrant, or "green card" applications. The rule also establishes regulations that authorize and monitor certifying organizations, such as the Commission on Graduates of Foreign Nursing Schools (CGFNS). The final rule went into effect on September 23, 2003 and nonimmigrant workers will have until July 26, 2004 to complete the certification process.

Further, the rules for applying for healthcare worker adjustment of status applications have also tightened. A Memorandum issued by Department of Homeland Security on September 22, 2003, indicates that Healthcare workers applying for adjustment of status, must submit evidence of certification at the time the adjustment of status is filed. This is a departure from the former policy of DHS that allowed for the submission of the VisaScreen certificate while the adjustment of status application was pending. No further instruction was issued on how currently pending cases will be handled.

Affected Occupations

Health Care Workers holding or applying for temporary visas (e.g. H-1B, TN-1) in the following occupations will be affected by the new requirements:

1. Nurses (RNs, LPNs and LVNs)
2. Physical therapists
3. Occupational therapists
4. Speech-language pathologists and Audiologists
5. Medical technologists (Clinical Laboratory Scientists)
6. Medical technicians (Clinical Laboratory Technicians) and
7. Physician Assistants

Credentialing Organizations

Authorized licensing organizations will be responsible for determining that the foreign health care worker's education, training, license, experience are comparable to those required of an American health care worker of the same type. The certification must also demonstrate competence of oral and written English and that the foreign health care worker's license is unencumbered.

Initially, only the CGFNS will have the authority to certify workers from the seven professions listed above. The National Board for Certification in Occupational Therapy (NCBOT) and the Foreign Credentialing Commission on Physical Therapy (FCCPT) continue to be authorized for the occupational therapy and physical therapy professions, respectively. All organizations seeking to be eligible for authorization to issue certificates to foreign health care workers must file Form I-905 with the Nebraska Service Center. The filing fee of $230 will be applicable to all organizations, except the CGFNS. Any institution adhering to the majority of the standards set forth in the legislation may be certified. Programs will be reviewed and reauthorized every five years and may be reviewed more often at DHS discretion. A full list of authorized credentialing agencies, as well as agencies that are no longer eligible for authorization to issue certificates, will be posted on uscis.gov.

The organizations previously authorized to certify health care workers (except CGFNS) shall be required to be re-certified. However, those organizations will retain interim authority to continue issuing certifications. These organizations will have until January 28, 2004 to submit an I-905 Application for Authorization to Issue Health Care Worker Certificates.

When to submit Certification to the DHS

Certificates will be valid for a period of five years. If foreign workers either wait several years to enter the U.S. or remain in the U.S. for an extended period of time before applying, they may have to repeat the certification process.

It will be necessary for affected non immigrant health care workers to present the credentialing certification each time a worker applies for a visa and enters the U.S. Green card holders, however, do not need to show the certificate each time they seek admission to the U.S.

Waiver until July 26, 2004

Due to concerns with the shortage of healthcare workers in the U.S. as well as the disruption that immediate adherence to the certification requirement would impose on the healthcare field, DHS decided to continue waiving the certification requirement for non immigrants (such as H-1B visa holders) until July 26, 2004. Therefore, any non immigrant health care worker admitted on or before July 26, 2004, who does not have certification, will receive a waiver of the requirement and will be admitted for a period not to exceed one year. Likewise, any petition to extend the status of a nonimmigrant health care worker or change status for work as a non immigrant health care worker, can receive a waiver, but must comply with the certification requirement after July 26, 2004. If a waiver of the requirement is issued, the extension of stay or change of status may not be for a period longer than one year. After July 26, 2004, all affected non immigrant health care workers must be prepared to present evidence of certification at the time they apply for an extension or change of status, apply for a visa, or entry into the U.S.

Requirement for Immigrant Status in the U.S.

Any foreign health care worker coming to the U.S. as an immigrant or who applies for adjustment of status to perform labor in a health care occupation will continue to require certification at the time of visa issuance or adjustment of status. Healthcare workers applying for adjustment of status, must submit evidence of certification at the time the adjustment of status is filed.

For complete text of Regulations see Federal Register, Vol. 68, No. 143, Friday, July 25, 2003, page 43901- page 43921, at the following link: http://www.uscis.gov/graphics/lawsregs/fr72503.pdf

For more information, please contact your attorney at Berry, Appleman and Leiden.