30.12 Nonimmigrant Health Care Workers.

(a) General .

Under section 212(a)(5)(C) of the Act, an alien who seeks admission to the United States for the primary purpose of performing labor as a health care worker, other than a physician, is inadmissible unless he or she presents a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent credentialing organization. Section 212(r) of the Act provides an alternate certification process for nurses. The certification generally verifies that the alien’s training, license, expe rience, and English-language ability meet minimum standards and are comparable with that required for an American health care worker of the same type.. Any equivalent credentialing organizations must be approved by the Department of Homeland Security (DHS) in consultation with the Secretary of Health and Human Services.

(b) Health Care Occupations Requiring Certification .

The health care occupations requiring certification are nurses (licensed practical nurses, licensed vocational nurses, and registered nurses), physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists (also known as clinical laboratory scientists), medical technicians (also known as clinical laboratory technicians) and physician assistants.

(c) Affected Nonimmigrant Classifications .

Nonimmigrants coming for the primary purpose of performing work as a health care worker will most likely be in the H-1B, H- 1C, J, O, and TN Classifications, although they may be petitioned for in other classifications.

(d) Certification Not Required .

Certification is required for all nonimmigrants who are entering for the primary purpose of performing labor as a health care worker. Accordingly, a nonimmigrant entering the United States to receive training in an occupation, including an F-1 or H-3 nonimmigrant receiving practical training or a J-1 nonimmigrant coming to undertake a training program in a medical field, is not required to obtain certification. The nonimmigrant spouse and dependent children of an immigrant or nonimmigrant alien subject to the certification requirement are not required to obtain certification.

(e) Authorized Credentialing Organizations .

CGFNS is authorized to issue health care worker certificates for all 7 occupations. The National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certificates for occupational therapists only. The Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certificates for physical therapists only.

(f) Implementation Dates .

(1) Prior to July 26, 2004, the DHS will admit and approve applications for extension of stay or change of status for nonimmigrant health care workers without requiring certification. The temporary admission, extension of stay, or change of status of such a nonimmigrant will be subject to the following conditions:

(i) The admission, extension of stay, or change of status may not be for a period longer than 1 year from the date of the decision, even if the relevant provision of 8 CFR 214.2 would ordinarily permit the alien’s admission for a longer period;

(ii) The alien must obtain the requisite health care worker certification within 1 year of the date of decision to admit the alien or to extend the alien’s stay or change the alien’s status; and,

(iii) Any subsequent petition or application to extend the period of the alien’s authorized status or change the alien’s status must include proof that the alien has obtained the health care worker certification if the extension or stay or change of status is sought for the primary purpose of the alien’s performing labor in an affected health care occupation. If the alien is adjusting status, all eligibility requirements must be met at the time of filing the application for adjustment of status. 8 CFR 103. 2(b)(12). Therefore, a health care worker in one of the affected occupations must submit evidence of certification at the time the adjustment of status is filed.

(2) On or after July 26, 2004, if an alien seeks admission to the United States, a change of status, or an extension of stay, the alien must provide evidence of health care worker certification if his or her primary purpose for coming to or remaining in the United States is employment in one of the affected health care occupations. The DHS will then exercise its discretion to waive the certification requirement only on a case by case basis.

(g) Applications for Authorization to Issue Health Care Worker Certificates .

Credentialing organizations may seek authorization from USCIS issue health care worker certificates. An organization must apply for authorization by submitting Form I-905, Application for Authorization to Issue Certification for Health Care Workers, to the Nebraska Service Center (NSC). The application must be accompanied by the appropriate filing fee. The NSC will issue a receipt notice, and then forward the packet to the Department of Health and Human Services (HHS):

[(b)(2) or (b)(7)(E)]

Once HHS has reviewed the application, it will return the Form I-905 and any accompanying documents to the NSC with a formal recommendation on whether or not the credentialing organization should be authorized to issue health care worker certificates for the requested occupations. The NSC will issue a final decision to the applicant advising the applicant whether or not the Form I-905 has been approved. Though DHS will give great weight to the HHS recommendation, the final authority to approve or deny the application rests with the DHS. If the application is approved, the NSC will advise the applicant that it has been authorized to issue health care certificates for a period of five years and notify the public through publication in the Federal Register. The approval notice must list all of the health care occupations for which the organization is authorized to issue certificates. If the application for authorization is not approved, the applicant will have 30 da ys in which to appeal the decision to the Administrative Appeals Office.

Credentialing organizations that seek to extend their authorization must file an application on Form I-905 prior to the expiration of the five-year authorization period. If an organization’s authorization expires prior to USCIS approval of the extension application, the organization will not be authorized to issue health care worker certificates until the USCIS approves the extension application. At the time the authorization extension is filed, the DHS will review the credentialing organization to ensure continued compliance with the regulatory standards. In addition, the DHS reserves the right to conduct a review of the approval at any time within the 5-year period. If the DHS determines that an organization has been convicted, or the directors or officers of an authorized credentialing organization have individually been convicted, of the violation of state or federal laws, or other information is developed such that the fitness of the organization to continue to issue certificates or certified statemen ts is called into question, the DHS shall automatically terminate authorization for that organization. The DHS will provide notice, including the basis for the termination, to the organization.

(h) Information on the Certificates .

A certifying organization generally must verify that the foreign health care workers’ education, training, licensing, experience and English competency meet all statutory and regulatory requirements of section 212(a)(5)(C) of the Act or, for certain nurses, section 212(r) of the Act. The health care worker certificate or certified statement must contain the following elements:

· The name, address, and telephone number of the credentialing organization, and a point of contact to verify the validity of the certificate or certified statement;

· The date the certificate or certified statement was issued;

· The health care occupation for which the certificate was issued; and

· The alien’s name, and date and place of birth.