LETTER REQUESTING
CLARIFICATION OF NEW LAW
ON HEALTH CARE WORKERS

FREE NEWSLETTER

Learn how to benefit from United States immigration laws and procedures from a former INS Attorney (1976-82) with over 30 years of experience. SHUSTERMAN'S IMMIGRATION UPDATE is must reading for potential immigrants, employers, human resources managers, immigration attorneys, reporters and policy makers. Join over 55,000 persons in more than 150 countries in subscribing to our FREE monthly e-mail newsletter. E-Mail Address: Your Name:

                         March 20, 1997


Louis D. Crocetti, Jr.
Associate Commissioner, Examinations
Immigration and Naturalization Service
425 Eye Street, N.W.
Washington, DC 20536

                                          BY FAX (202) 514-0197

Re: Request for Clarification of Section 343, IIRAIRA

Dear Mr. Crocetti,

I am an attorney who specializes in the immigration of health care workers.
I am writing to you seeking clarification of some of the issues raised in
your memorandum of January 28, 1997.

It is generally agreed that section 343 became effective on September 30,
1996 and that many types of health care workers are affected by the change
in law.  However, in the absence of INS regulations or a more detailed
interpretation of the law, employers, employees and patients may be
detrimentally affected by section 343.

In the interest of minimizing disruption to the operations of hospitals and
other health care facilities, please clarify the following points at your
earliest convenience:

1. The January 28, 1997 memo contains no exception for foreign-born health
care workers who were trained or educated in the United States.  As a result,
many health care workers who are U.S. trained, but foreign-born have had
their adjustment applications held in abeyance rather than being granted.

Congress' designation in section 343 as certificate-issuing entity the
Commission on Graduates of Foreign Nursing Schools (CGFNS), an organization
which administers examinations  solely to foreign-trained nurses indicates
to me that it was not the intention of Congress that section 343 apply
to U.S.-educated health care workers.  I spoke to an official of CGFNS
who readily agreed with this interpretation.

Since some of these workers have children who are approaching 21 years of
age, it is imperative that this matter be clarified as soon as possible.

2. Which types of health care workers are covered by section 343?
This is a matter of considerable confusion.  Despite the clear language
of the statute, at least one Service office has stated that adjustment
of status application for physicians should be held in abeyance because
of the January 28, 1997 memo.  While I am sure that you agree that this
interpretation is clearly erroneous, it is equally clear that the scope
of section 343 is ambiguous.

In section III.B. of the memo (relating to adjustment of status), you
indicate that the legislative history interprets "health care worker"
to include physical therapists, occupational therapists, speech-language
pathologists, medical technologists and technicians "and other occupations".
However, in section IV., relating to nonimmigrants, the "and other occupations"
language is not included.

Some Service offices are holding in abeyance non-licensed and non-professional
occupations like medical assistants.  Is this a correct interpretation of the
statute?  What "other occupations" should Service offices be holding adjustment
applications in abeyance?

3. How does the Service interpret the effective date of the statute?  Does
section 343 apply to adjustment applications submitted after September 30,
1996 or also to adjustment interviews held after that date where the
application was submitted prior to the enactment of IIRAIRA?  Some Service
offices are applying section 343 retroactively to apply to adjustment applicants
who were interviewed prior to IIRAIRA's date of enactment unless there was a
final adjudication of the application before September 30, 1996.  Is this a
correct interpretation of the statute?

4. Finally, since it has been nearly six months since  section 343 became
effective, when can we expect the Service to issue regulations to implement
this section of law?  Given the expected lagtime of at least several months
between the issuance of regulations, the designation of equivalent credentialing
organizations (to the CGFNS) by the Attorney General and the Department of
Health and Human Services, and the issuance of 343 certificates under the
statute, does the Service support a technical amendment to IIRAIRA to delay
the effective date of section 343?

Thank you for your consideration of the questions raised in this letter.

Very truly yours,
Law Offices of Carl Shusterman




Carl Shusterman


CS/ls

Continue...

Schedule A Legal Consultation

Return to Text and Analysis of 1996 Law

Return to Immigration Guide Homepage