ADVISORY

July 26, 2004 Deadline for Foreign Health Care

Workers to Obtain Certification To Comply With

 Department of Homeland Security Regulations

Homeland Security Extends Deadline For Screening Of Canadian and Mexican Healthcare Workers In U.S.  

The U.S. Department of Homeland Security (DHS) extended the deadline for Mexican and Canadian healthcare workers to obtain a special visa certification to deliver patient care and services in the U.S. The new deadline will be July 26, 2005. The extension will apply only to Mexican and Canadian citizens who were licensed and employed before September 23, 2003, in one of seven specific healthcare occupations, including nursing, and who previously were exempt under the North Atlantic Free Trade Agreement (NAFTA). Please note that healthcare workers from other countries must still abide by the July 26, 2004 deadline for certification.

On July 25, 2003, the U.S. Department of Homeland Security (DHS) issued a final rule, 8 C.F.R. 212.15, implementing Section 343 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which require certain foreign health care workers to obtain a certificate or certified statement from a DHS-approved credentialing organization in order to be admitted into the United States.  Earlier regulations required certification for immigrants (green card holders, aka, lawful permanent residents) seeking admission to or already in the United States.  The new regulations require “nonimmigrants,” that is, non-citizens, coming into or already in the United States temporarily for the purpose of performing labor as health care workers to also obtain the certification.

What is the foreign health care worker certification?

The certification is in the form of a certificate or certified statement from a DHS-approved credentialing organization which documents that an alien seeking admission to the United States to perform labor as a health care worker has met minimum requirements for training, licensure, and English proficiency.  This requirement applies regardless of where the foreign health care worker was educated and whether or not the foreign health care worker is licensed.

Who must obtain a foreign health care worker certificate or certified statement?

Any alien (non-citizen) seeking temporary admission into the United States to perform labor as a health care worker must have a certificate or a certified statement from a DHS-approved credentialing organization as of July 26, 2004.

Does the certification requirement apply to immigrants and nonimmigrants?

Yes.  The DHS regulations effect both alien immigrant (green card holders or lawful permanent residents) and nonimmigrant (non-citizens seeking temporary admission into the United States) health care workers.  However, the regulations effecting immigrant health care workers have been in place for some time.  The regulations effecting alien nonimmigrant health care workers went into effect on September 23, 2003 with a grace period until July 26, 2004.  

What are the seven health care professions for which certification is required?

(1) Licensed practical nurses, licensed vocational nurses and registered nurses;

(2) Occupational therapists;

(3) Physical therapists;

(4) Speech language pathologists and audiologists;

(5) Medical technologists (clinical laboratory scientists);

(6) Physician assistants; and

(7) Medical technicians (clinical laboratory technicians).

See 8 C.F.R. 212.15(c).

Which foreign health care professionals are not required to comply with the certification requirement?

(1)   Physicians;

(2)   Aliens seeking admission to the United States to perform services in non-clinical health care occupations, that is, occupations in which the alien is not required to perform direct or indirect patient care, such as medical teachers, medical researchers, and managers of health care facilities, are not required to obtain the certification.

(3)   Nonimmigrant aliens coming into the United States to receive certain training;

(4)   The spouse and dependent children of immigrant or nonimmigrant aliens; and

(5)   Certain aliens applying for permanent resident status.

 See 8 C.F.R. 212.15(b).

When will nonimmigrant aliens be required to present the certificate or certified statement?

As of July 26, 2004, nonimmigrant aliens will be required to present the certification or certified statement when seeking admission into the United States or when seeking an extension of stay or change in their nonimmigrant status.  Therefore, nonimmigrant aliens who commute into the United States on a daily basis to perform labor in one of the seven specified health care fields will be required to present the certification in order to obtain entry into the United States commencing on July 26, 2004.  Similarly, nonimmigrants who leave the United States and seek to return for the purpose of performing labor in one of the seven specified health care professions must present the certification in order to be re-admitted into the United States on or after July 26, 2004.

What if a nonimmigrant received a temporary visa or TN status for the purpose of performing labor in one of the specified health care occupations during the grace period prior to July 26, 2004? 

The nonimmigrant will still be required to obtain the certificate within one year or for any subsequent application or petition to seek an extension of stay or a change of status.  Our information is that such nonimmigrants will be required to present the certification if they leave the United States before the expiration of one year and seek admission to the United States on or after July 26, 2004 for the purposes of performing labor in one of the seven specified health care occupations.

Does the foreign health care worker certification apply to Trade NAFTA (TN) health care workers from Canada and Mexico?

Yes.  The DHS rule on the certification of foreign health care workers applies to temporary and permanent employment visa holders as well as Trade NAFTA (TN) health care workers from Canada and Mexico.  See 68 F.R. 43904.

Do foreign health care workers who were educated and/or licensed in the United States have to comply with the certification requirement?

Yes.  However, the DHS regulations allow nurses, occupational therapists, physical therapists, and speech language pathologists and audiologists who graduated from certain accredited programs in the United States to undergo a streamlined certification process in which the health care worker is exempt from the educational comparability review and the English language proficiency examination.  See 8 C.F.R. 212.15(i).

What organizations can issue the foreign health care worker certification or certified statement?

The Commission on Graduates of Foreign Nursing Schools (CGFNS), www.cgfns.org,

is authorized to issue (“VisaScreen”) certificates to all seven health care professions covered by the regulations and is also authorized to issue certified statements in lieu of the certificate to qualifying nurses.

The National Board for Certification in Occupational Therapy (NBCOT), www.nbcot.org,  is authorized to issue certificates in the field of occupational therapy.

The Foreign Credentialing Commission on Physical Therapy (FCCPT), www.fccpt.org,

is authorized to issue certificates in the field of physical therapy.     

It is our understanding that there can be significant delays in obtaining the required certification.  We therefore recommend that PEF members who will need the certification take immediate action to apply for the certification with the appropriate credentialing organization.