INS Regulations Re: Physical and Occupational Therapists (4-30-99)

[Federal Register: April 30, 1999 (Volume 64, Number 83)]
[Rules and Regulations]
[Page 23174-23178]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap99-2]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS 1979-99]
RIN 1115-AF43

Additional Authorization to Issue Certificates for Foreign Health
Care Workers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The interim rule amends the regulations of the Immigration and
Naturalization Service (Service) to grant, on a temporary basis,
authorization to the Commission on Graduates of Foreign Nursing Schools
(CGFNS) to issue certificates to foreign health care workers in the
occupations of occupational therapy and physical therapy. This rule
also grants the Foreign Credentialing Commission on Physical Therapy
(FCCPT) the authority to issue certificates to foreign-trained physical
therapists. The rule is written in response to formal requests by CGFNS
and FCCPT to obtain permission to issue certificates to foreign-trained
workers coming to the United States in the occupations of occupational
therapy and physical therapy on a permanent basis. This rule ensures
that foreign-trained occupational therapists and physical therapists
have the same training, education, and licensure as similarly employed
United States workers.

[[Page 23175]]

    This interim rule applies only to aliens seeking admission as
immigrants to perform services in these two health care occupations.
Aliens seeking temporary admission to the United States as nonimmigrant
aliens to perform services in these or other health care occupations
are not covered by this interim rule. The Service and the Department of
State temporarily have waived the certification requirement of section
343 of the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) for aliens coming to the United States as nonimmigrant health
care workers. This policy will continue until a final rule is published
which fully implements section 343.

DATES: Effective date: This interim rule is effective June 29, 1999.

    Comment date: Written comments must be submitted on or before June
29, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference the INS No. 1979-99
on your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer,
Benefits Division, Immigration and Naturalization Service, 425 I Street
NW., Room 3214, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

What is Section 343 of IIRIRA?

    On September 30, 1996, President Clinton signed the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L.
104-208. Section 343 of IIRIRA created new ground of inadmissibility at
section 212(a)(5)(C) of the Immigration and Nationality Act (Act) for
aliens coming to the United States to perform labor in certain health
care occupations.
    Pursuant to section 343, any alien coming to the United States for
the purpose of performing labor as a health care worker, other than as
a physician, is inadmissible unless the alien presents to the consular
officer, or, in the case of adjustment of status, the Attorney General,
a certificate from the CGFNS, or an equivalent independent
credentialing organization approved by the Attorney General in
consultation with the Secretary of Health and Human Services (HHS).
    Under section 343, the certificate must verify that: (1) the
alien's education, training, license, and experience meet all
applicable statutory and regulatory requirements for admission into the
United States under the classification specified in the application;
are comparable with that required for an American health care worker;
are authentic and, in the case of a license, is unencumbered; (2) the
alien has the level of competence in oral and written English
considered by the Secretary of HHS, in consultation with the Secretary
of Education (DOE), to be appropriate for health care work of the kind
in which the alien will be engaged, as shown by an appropriate score on
one or more nationally recognized, commercially available, standardized
assessments of the applicant's ability to speak and write English; and,
finally, (3) if a majority of states licensing the profession in which
the alien intends to work recognize a test predicting the alien's
success on the profession's licensing or certification examination, the
alien has passed such a test, or has passed such an examination.
    On October 14, 1998, the Service published an interim rule in the
Federal Register at 63 FR 55007 that implemented certain portions of
section 343 of IIRIRA as it related to occupational therapists and
nurses coming to the United States on a permanent basis. For purposes
of this discussion, the interim rule published on October 14, 1998, is
referenced as ``the first interim rule.''

What provisions were contained in the Service's interim rule
published on October 14, 1998?

    In the first interim rule, which became effective on December 14,
1998, the Service granted authorization to CGFNS and the National Board
for Certification in Occupational Therapy (NBCOT) to issue certificates
to foreign-trained health care workers in the fields of nursing and
occupational therapy, respectively. the rule, however, limited the
authority of CGFNS and the NBCOT to the issuance of certificates to
aliens coming permanently to the United States. In addition, the
authority granted to CGFNS and NBCOT to issue certificates was granted
on a temporary basis until the Service published a final rule
implementing all the provisions of section 343 of IIRIRA.

What criteria did the Service use in the first interim rule to grant
authorization to CGFNS and NBCOT to issue certificates?

    The first interim rule provided that an organization must meet two
criteria in order to be granted authorization to issue certificates
pursuant to section 343 of IIRIRA. First, the organization had to
establish that there was a sustained level of demand for foreign-
trained workers in the occupation and, second, the organization has to
show that it had an established track record in providing credentialing
services in the occupation.
    For purposes of the first interim rule, the Service defined the
term ``sustained level of demand'' as the presence of an existing
demand for foreign health care workers in a particular occupation that
is expected to continue in the foreseeable future.
    The first interim rule defined the term ``organization with an
established track record'' as an organization that has a record of
issuing actual certificates, or documents similar to a certificate,
that are generally accepted by the state regulatory bodies as
certifying that an individual has met certain minimal qualifications.
    The rule also provided that, during the period of time that the
first interim rule was in effect, the Service would entertain any
requests to issue certificates from an organization that could
demonstrate that it met the two criteria.

What is the purpose of this interim rule?

    The purpose of this interim rule is to provide notice that the
Service has granted CGFNS the authority to issue certificates pursuant
to section 343 of IIRIRA, on a temporary basis, to foreign-trained
health care workers coming to the United States as immigrants or
applicants for adjustment of status to work in the occupations of
occupational therapist and physical therapist. This rule also provides
notice that the Service has granted FCCPT the authority to issue
certificates pursuant to section 343 of IIRIRA, on a temporary basis,
to foreign-trained health care workers coming to the United States as
immigrants, or applicants for adjustment of status to work in the
occupation of physical therapist.
    This rule does not give authorization to CGFNS or FCCPT to issue
certificates to aliens seeking temporary admission to the United States
as nonimmigrant aliens to perform services in these or other health
care occupations. Aliens' applications for admission as nonimmigrants
will be processed pursuant to the Service's temporary policies that
were described in the preamble to the Service's first interim rule. The
authorization provided for in this interim rule remains in effect until
the publication of a final rule.

[[Page 23176]]

    This interim rule also lists the passing scores for the English
language tests for the occupation of physical therapist.

Have CGFNS and FCCPT met the criteria to obtain authorization
described in the first interim rule?

    Pursuant to the criteria described in the first interim rule, CGFNS
and FCCPT have made formal applications to the Service seeking
authorization to issue certificates to foreign health care workers.
CGFNS has applied for authorization to issue certificates to foreign-
trained health care workers in the occupations of occupational
therapist and physical therapist. FCCPT has applied for authorization
to issue certificates in the occupation of physical therapist. The
applications were supported by evidence addressing the two criteria
described in the first interim rule.
    In order to secure more current and detailed information relating
to issues in the field of health care, the Service sought the opinion
of the Secretary of HHS as to whether CGFNS and FCCPT met the two
criteria described in the first interim rule. Based on the Secretary's
opinion and the evidence submitted, the Service finds CGFNS has met the
two criteria discussed in the rule for the occupations of occupational
therapist and physical therapist. Likewise, FCCPT has met the two
criteria for the occupation of physical therapist.

Does CGFNS have a proven track record?

    The Service finds that CGFNS has an established track record in
issuing certificates because it has experience in administering the
examination that predicted success of foreign-trained educated nurses
under the previous H-1A visa category. In addition, CGFNS has
experience beyond nursing with regard to educational comparability and
credentials evaluation. CGFNS, through their credential evaluation
service, has evaluated foreign credentials, including educational
degrees and foreign licenses, for psychiatric technicians, physician
assistants, emergency medical technicians, and other occupations.
    The CGFNS has an extensive database covering health-related
academic programs in foreign countries, much of which is applicable
beyond nursing. Finally, with the establishment of ``Professional
Standards Committees,'' CGFNS has developed certification standards
that may be used to assess comparability for the occupation of physical
therapy and occupational therapy.

Does FCCPT have a proven track record?

    The FCCPT is the credentialing organization of the Federation of
State Boards of Physical Therapy (the Federation). The membership of
the Federation, established 1986, includes all of the state regulatory
bodies responsible for the examination and licensure of physical
therapist in all 50 states. The Federation develops and recommends
educational, English language proficiency, and other standards adopted
by state regulatory agencies.
    The FCCPT currently performs credential evaluations for individuals
entering on temporary visas that are accepted by 17 states. As part of
the evaluation, the organization reviews English language proficiency,
licensure status and proof that a current license is in good standing
with the licensure authorities, and, finally, equivalency of education.
Based on the credentials evaluation provided by FCCPT, these states
will issue temporary licenses pending the taking of the National
Physical Therapy Examination.
    Further, the Federation developed the Course Work Evaluation Tool
to establish educational standards for credentialing foreign-educated
physical therapists that are currently used by 19 states. The
Federation worked with the NBCOT to jointly develop common English
language proficiency standards, including the identification of
necessary examinations and passing scores for English language
proficiency examinations administered by the Educational Testing
Service. HHS adopted these standards in its recommendation to the
Attorney General regarding appropriate English language proficiency
tests scores for physical therapists and occupational therapists as set
forth in the first interim rule.

Is There a Sustained Level of Demand for Physical Therapists?

    According to data compiled by the Department of Labor, the number
of job openings for physical therapists continues to remain high. The
second highest number of job openings certified under the H-1B program
is for the occupation of therapist. Physical therapists, in turn,
comprise the largest component of this occupation. Based on these
findings, the Service has determined that the second criteria relating
to the demand of foreign-trained workers for the occupation of physical
therapists has been met.
    The Service previously determined in the first interim rule that
there was a sustained level of demand in the field of occupational
therapy for foreign-trained health care workers.
    Based on the foregoing, it is the decision of the Service that
CGFNS should be granted authorization to issue certificates to foreign
health care workers in the fields of occupational therapist and
physical therapist subject to the terms and conditions of the first
interim rule. Further, the FCCPT, as the credentialing unit associated
with the Federation, is granted the authority to issue certificates to
foreign health care workers in the field of physical therapist.

What are the Passing English Test Scores for Physical Therapists?

    The HHS has determined that physical therapists must obtain the
following scores on the English tests administered by the Educational
Testing Service (ETS): Test of English as a Foreign Language (TOEFL):
paper-based 560, computer-based 220; Test of Written English (TWE):
4.5; Test of Spoken English (TSE): 50.
    HHS has advised that the Michigan English Language Assessment
Battery (MELAB) is not an appropriate test for physical therapists or
occupational therapists. HHS has advised that MELAB scores are not
acceptable to the licensing and accrediting organizations involved with
these two occupations. In addition, the exemptions for the English
language tests described in Sec. 212.15(g)(2) apply to the occupation
of physical therapy.

Does this Interim Rule Alter any of the Service's Policies With
Respect to the Admission of Nonimmigrant Health Care Workers?

    No. This rule merely grants authorization to CGFNS and the FCCPT to
issue certificates to foreign-trained health care workers seeking
admission as immigrants or adjustment of status in two additional
occupations. It does not alter any of the Service's policies with
respect to the admission of nonimmigrant aliens coming to perform
services in health care occupations that were described in the first
interim rule.

How does This Rule Amend the Existing Regulation?

    This interim rule amends the regulation at Sec. 212.15(c) by adding
the occupation of physical therapist to the list of occupations.
    This interim rule also amends the regulation at Sec. 212.15(e) to
add the occupations of physical therapist and occupational therapist to
the list of occupations for which CGFNS can issue certificates. This
rule also adds FCCPT

[[Page 23177]]

as an organization authorized to issue certificates in the occupation
of physical therapist.
    Finally, this regulation amends the regulation at Sec. 212.15(g) to
list the passing English scores for the occupation of physical
therapist.

Good Cause Exception

    This interim rule is effective 60 days from the date of publication
in the Federal Register. The Service invites post-promulgation comments
and will address any such comments in a proposed rule or the resulting
final rule. For the following reasons, the Service finds that good
cause exists for adopting this rule without the prior notice and
comment period ordinarily required by 5 U.S.C. 553. Although section
343 went into effect on September 30, 1996, due to the complexities of
the requirements of section 343, and the need to coordinate the
interests and concerns of a great number of Federal agencies, the
health care sector, and members of the affected public, the Service is
still in the process of developing a more comprehensive proposed rule
to implement section 343 in order to solicit comment from the public. A
continued delay in the implementation of this provision in the
particular manner set out in this interim rule, however, could have a
negative effect on the availability of health care in this country,
particularly in medically under-served areas for nursing and
occupational therapy, and will create a further backlog with respect to
pending applications filed by aliens seeking to immigrate to perform
labor in a health care occupation.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in
accordance with 5 U.S.C. 605(b), has reviewed this regulation and, by
approving it, certifies that the rule will not have a significant
economic impact on a substantial number of small entities. This rule
has been drafted in a way to minimize the economic impact that it has
on small business while meeting its intended objective. The health care
workers who will be issued certificates are not considered small
entities as the term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget (OMB) for review.

Executive Order 12612

    The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.

List of Subjects 8 CFR Part 212

    Administrative practice and procedures, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, part 212 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.

2. Section 212.15 is amended by:
    a. Revising paragraph (c) introductory text;
    b. Adding a new paragraph (c)(3);
    c. Revising paragraph (e); and by
    d. Revising paragraph (g)(4)(i), to read as follows:

Sec. 212.15  Certificates for foreign health care workers.

* * * * *
    (c) Occupations affected by this provision. With the exception of
the aliens described in paragraph (b) of this section, any alien
seeking admission to the United States as an immigrant or any alien
applying for adjustment of status to a permanent resident to perform
labor in one of the following health care occupations, regardless of
where he or she received his or her education or training, is subject
to this provision:
* * * * *
    (3) Physical Therapists.
* * * * *
    (e) Organizations approved by the Service to issue certificates for
health care workers.
    (1) The Commission on Graduates of Foreign Nursing Schools is
authorized to issue certificates under section 343 for the occupations
of nurse, physical therapist, and occupational therapist.
    (2) The National Board for Certification in Occupational Therapy is
authorized by the Service to issue certificates under section 343 for
the occupation of occupational therapist.
    (3) The Foreign Credentialing Commission on Physical Therapy is
authorized by the Service to issue certificates under section 343 for
the occupation of physical therapist.
* * * * *
    (g) * * *
    (4) Passing scores for various occupations. (i) Occupational and
physical therapists. An alien seeking to perform labor in the United
States as an occupational therapist or physical therapist must obtain
the following scores on the English tests administered by ETS: Test Of
English as a Foreign Language (TOEFL), Paper-Based 560, Computer-Based
220; Test of Written English (TWE): 4.5; Test of Spoken English (TSE):
50. Certifying organizations shall not accept the results of the MELAB
for the occupation of occupational therapist or physical therapist.
Aliens seeking to obtain a certificate to work as an occupational or
physical therapist must take the test

[[Page 23178]]

offered by the ETS. The MELAB scores are not acceptable for these
occupations.
* * * * *
    Dated: April 27, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-10819 Filed 4-27-99; 4:39 pm]
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