Healthcare Workers, Regulations, U.S. Immigration, Visas, Law Offices of Carl Shusterman

Law Offices of Carl Shusterman - US Immigration

ANALYSIS OF INS RULES
REGARDING HEALTH CARE WORKERS
(10-14-98)

Law Offices of Carl Shusterman
600 Wilshire Boulevard, Suite 1550, Los Angeles, CA 90017
(213) 623-4592 x0
Representing Clients in All 50 States
30 Years of Immigration Law Experience
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To read the text of the INS interim regulations, click

Good News for Nurses, Occupational Therapists

More than two years after an immigration law was passed in 1996, registered nurses and occupational therapists will finally be able to obtain green cards under a regulation issued by the Immigration Service on October 14, 1998. Expect a huge number of RN’s and OT’s to apply for green cards during the next few months. As it is, the INS estimates that over 11,000 applications for seven different types of health care workers are being held “in abeyance” at the four INS Service Centers in addition to a “significant” number pending at U.S. Embassies and Consulates worldwide. The INS, besieged by lawsuits, issued an “interim” regulation which will become effective on December 14, 1998 for these two occupations only. Other health care workers, specifically (1) physical therapists, (2) medical technologists, (3) medical technicians, (4) speech language pathologists and (5) physicians’ assistants will have to wait at least another year for relief. That is when the INS estimates that it will issue “proposed” regulations to implement the 1996 law for all health care workers.

What the Regulation Says

The interim rule would allow RN’s and OT’s to obtain green cards after they obtain a certificate attesting that their education, training, license and experience (1) meet all legal and regulatory requirements for entry into the U.S., (2) are comparable with an American health care worker of the same type, and (3) are authentic, and in the case of a license, are unencumbered. In addition, the RN/OT must must pass a test in oral and written English.

The regulations allow for no exceptions from the credentialing requirement. Even an RN or OT who is educated, licensed and employed in the U.S. must pay a private organization several hundred dollars to verify her education, training, license and experience. Great news for the “credentialing organization”, not so for the nurse or therapist.

However, the regulation is a bit more realistic with regard to the English test. RN’s and OT’s educated in the U.S., the United Kingdom, Ireland, New Zealand, Australia and Canada (except Quebec) are exempt from the English-language test. Curiously, those who graduated from universities where the mode of instruction is in English will not be exempted if they received their education in South Africa, the Philippines, Jamaica, India or any of the dozens of former British or U.S. colonies around the world. Pity the poor nurse who received her Bachelor of Science in Nursing at McGill University in Montreal, Canada. McGill U. is an English-only university despite its location in Quebec Province.

With regard to nonimmigrants, the INS and the State Department have wisely decided to extend from six months to one year, the time that a waiver may be granted. Unfortunately, this policy does little to insure the entry of registered nurses into the country despite the Labor Department’s conclusion that there is a “sustained level of demand” for RN’s in the U.S. Most nursing jobs do not require a four-year degree, thereby depriving U.S. employers of the opportunity to obtain H-1B visas for RN’s. The extension of the waiver period is of assistance to those health care workers who qualify for H-1B or TN status.

Registered Nurses

RN’s are restricted to applying to the Commission on Graduates of Foreign Nursing Schools (CGFNS) to evaluate their credentials. They must apply for the organization’s new VisaScreen.

With regard to the English examination, RN’s have a choice. They may pass either the examination offered by the Educational Testing Service (ETS) or by the Michigan English Language Assessment Battery (MELAB).

The nurse must submit evidence of passing the VisaScreen and either the ETS or the MELAB English exam to the Embassy (or Consulate) on or after the day of her immigrant visa interview. If she is applying for a green card in the U.S., she must present them to the INS as part of her adjustment of status application.

Occupational Therapists

OT’s must apply for their credentials evaluation with the National Board for Certification in Occupational Therapy (NBCOT).

Unlike RN’s, they have no choice but to take the ETS English exam which is the only such examination accepted by the NBCOT.

The therapist must submit her NBCOT certification and evidence of passing the ETS English exam to the Embassy (or Consulate) on or after the day of her immigrant visa interview. If she is applying for a green card in the U.S., she must present them to the INS as part of her adjustment of status application.

Conclusion

Registered nurses and occupational therapists who wish to obtain permanent residence in the U.S. should act quickly to satisfy the requirements of the interim regulations. Given the enormity of the backlogs which have developed during the past two years, it is likely that the infusion of 10,000 to 20,000 new persons into the employment-based third preference (professionals/skilled workers) category, particularly from countries like the Philippines which supplies most of the foreign-born health care workers to the U.S., will lead to significant backlogs. Nurses and therapists from China (PRC) and India would also be wise to move expeditiously since the employment-based third preference categories for these countries are already experiencing severe backlogs.

The INS’s inexplicable failure to provide relief for other categories of health care workers in the interim regulations will severely limit their ability to change employers and will prevent their children who reach the age of 21 while their applications remain held “in abeyance” from obtaining permanent residence, thereby resulting in the splitting of nuclear families. Their only hope is the possible success of pending lawsuits in forcing the INS to take responsiblity for what has developed into a disastrous situation.

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