The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the federal Immigration and Nationality Act to establish a new basis for excluding certain alien healthcare workers. The new law does not apply to doctors or to alien healthcare workers who already have permanent resident status.
Under the new law, covered alien healthcare workers may not obtain new authorization to work in the United States or renew existing authorization to work in the United States until their education credentials and language skills are certified by a designated agency. However, the new provision has not yet been applied to bar any foreign healthcare worker or to refuse renewal of work authorization for an otherwise eligible worker. A blanket waiver of the new exclusion has allowed healthcare workers to obtain and to renew authorization to enter and work in the United States without the required certification. The waiver was instituted by the Immigration & Naturalization Service (INS) pending issuance of rules implementing the new certification requirement.
As of yet, no rules have been written. Rule making to implement a federal statute is a long and complex process and can take months or years from the time a statute is enacted. It is impossible to know when the rules enacting the healthcare worker certification requirement will be issued. In the meantime, foreign healthcare workers are being allowed to enter and work in the United States under the blanket waiver of the certification requirement.
Until the INS does issue rules prescribing the procedure for certification, most foreign healthcare workers may continue to apply to enter and work in the United States or to extend authorization to work in the United States exactly as they would have had there been no certification amendment. There are two groups of foreign healthcare workers, however, on whom the certification requirement may have immediate impact: healthcare workers in TN status and registered nurses.
TN Healthcare Workers
Canadian healthcare workers already working in the United States under TN status will find upon application to extend their status that the extension period has been shortened from one year to six months. In anticipation of the promulgation of rules to implement the healthcare worker certification requirement, the INS has limited entry and renewal for TN healthcare workers in the United States to six months rather than the previously available year-long period. The INS by this means intends to impose the certification requirement sooner rather than later with respect to a TN healthcare worker's work authorization.
Registered Nurses
The second group immediately affected by the new certification amendment is registered nurses. Unlike other alien healthcare workers, nurses must make a decision regarding whether to undertake a certification process immediately.
The new statute requires that uncertified foreign healthcare workers obtain a "certificate from the Commission on Graduates of Foreign Nursing Schools [CGFNS], or a certificate from an equivalent independent credentialing agency approved by the Attorney General" of the United States. (To date the Attorney General has approved no "equivalent" certification agencies for healthcare workers.) When the certification requirement became law, however, INS instructed its field offices not to accept any healthcare worker certifications, including CGFNS certifications, until the rules clarifying and implementing the certification process are published in the Federal Register.
CGFNS, however, took a different view. CGFNS informed the INS that it has a claim under the amended statute to provide healthcare certification examinations even though there are no implementing rules yet. In August 1997, CGFNS wrote INS declaring its intention to begin processing foreign healthcare worker certifications at an unspecified date in the near future. To handle the new certification process, CGFNS established the International Commission on Healthcare Professions (ICHP) to oversee CGFNS's certification examinations and credentials valuation. ICHP has been actively distributing information and soliciting applications from registered nurses for its certification program, which it calls VisaScreen.
Applicants to the ICHP VisaScreen program are asked to complete an application and to provide supporting documentation. In addition, because applicants for healthcare certification are required by the new law to pass a designated English language sufficiency test, ICHP provides contact information for organizations administering those English language proficiency examinations. Depending upon the services required by the applicant, total certification fees for VisaScreen can amount to several hundred dollars.
Although CGFNS through ICHP already has made available extensive application materials and has announced the VisaScreen program throughout the immigration and consular network, its appeal for nurses to begin immediately to apply for certification through VisaScreen is without regulatory support and without recognition by INS that the VisaScreen process will comply with INS rules once they are promulgated.
In response to CGFNS's August 1997 announcement that it would go ahead with its ICHP VisaScreen certification program, INS immediately notified all its field offices that prior to the promulgation of INS rules implementing the healthcare worker certification amendment, the INS will not, repeat, will not accept any certification that has been developed and issued to meet the requirements of the amended Immigration and Nationality Act by CGNFS or by any other equivalent independent credentialling organization. The INS issued a public announcement to this effect on September 11, 1997.
The tension between the INS and CGFNS/ICHP over the certification of alien registered nurses leaves nurses facing a dilemma. They may submit a VisaScreen application for certification to ICHP in order to comply as early as possible with the certification requirement, only to risk learning ultimately that the ICHP certification process does not comply with rules set by the INS to enact the certification requirement.
On the other hand, a nurse who does not want to pay for a certification that ultimately may be unacceptable to INS, and who chooses to wait until the rules are promulgated in order to know what certification will be required, may fear being caught in a squeeze with insufficient time left, by the time the rules are issued, to complete the certification process before a currently valid non-immigrant status expires.
Recommendation
Registered nurses should not be afraid to wait for the INS rules before initiating the process to meet the certification requirement. There is no need for nurses to apply to the CGFNS/ICHP VisaScreen program before the INS issues its rules. The INS will allow TN nurses 6-month extensions of status as reasonably necessary for them to meet the requirement after the rules are issued.
The INS is aware that the certification process will take time. In particular, the INS is aware that there will be long waits for the required language testing. The rules implementing the certification procedure will allow for a certain amount of lead time before certification will be required, and extensions of TN status will be granted to allow reasonable time for nurses to obtain certification as the new rules require.
As with all immigration matters, it is important for alien healthcare workers and their employers to be alert for information from the INS regarding the new certification requirement. The INS reports that it expects to put out a memorandum to its field offices before the end of 1997 clarifying appropriate treatment of the certification requirement pending the issuance of the new rules.
Leigh McCarthy concentrates her practice in the areas of employment law, including business immigration matters, and estate planning.