English Language Requirement--§ 212.15(g)

Purusant to section 343 of IIRIRA, HHS, in consultation with the Secretary of Education, is required to establish a level of competence in oral and written English which is appropriate for the 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.

The statute vests the Secretary of HHS with the "sole discretion" to determine the standardized tests and appropriate minimum scores required by section 343 of IIRIRA.

The HHS has identified two testing services which conduct a nationally recognized, commercially available, standardized assessment as contemplated in the statute. The two testing services are the Educational Testing Service (ETAS) and the Michigan English Language Assessment Battery (MELAB). The new regulation at § 212.15(g) lists the tests and appropriate scores as determined by HHS for each occupation.

In developing the English language test scores, HHS consulted with the DoE and appropriate health care professional organizations. The HHS also examined a study sponsored in part by NBCOT entitled "Standards for Examinations Assessing English as a Second Language" in arriving at these scores. The scores reflect the current industry requirements for the occupations.

Under this interim regulation, an organization approved to issue certificates may use either of the above-named testing services. It should be noted, however, that HHS has determined that occupational therapists should only take the test administered by ETS. The HHS has advised the Service that it made this determination based on the fact that all 50 states have accepted the NBCOT requirements which list the ETS as the only acceptable examination.

In addition, organizations authorized to issued certifications are encouraged to develop a test specifically designed to measure English language skills and seek HHS approval of the test. While HHS has identified MELAB and ETS for purposes of this interim rule, other testing services may submit information about their testing services to the Service so that HHS and the DOE could review whether the testing service should be included in the final rule.

HHS has advised that graduates of health professional programs in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States are exempt from the English language requirements of section 343 of IIRIRA for the duration of the interim rule. The HHS has determined that, for purposes of this rule, aliens who have graduated from these programs have competency in oral and written English because the level of English that they would need to graduate from these programs is de emed equivalent to the level that would be demonstrated by achieving the minimum passing score on the test described above.

Presentation of the Certificate--§ 212.15(d) and § 245.14

Section 343 of IIRIRA is codified in section 212(a) of the Act as a new ground of inadmissibility. In genral, grounds listed in section 212(a) are bars to admission to the United states which must be overcome when an alien applies for admission. This interim rule provides that the certificate must be presented to a consular officer at the time that the alien applies for an immigrant visa and to the Service at the time of admission or adjustment of status. The certificate must be valid at the time the alien applies for an immigrant visa at a consular post abroad and seeks admission or adjustment of status to that of a permanent resident.

The Service and the DOS will consider, in the context of the proposed rulemaking, whether it would be more efficient to review the certificate as part of the review of the alien's qualifications for classification at the time that a Form I-140 is adjudicated by the Service. In this regard, it should be noted that such a filing procedure has long been used with respect to labor certifications under section 212(a)(5)(A) of the Act.

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 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 proposed rule in order to solicit comment from the public. A continued delay in the implementation of this provision, 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 seek ing 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.

Paperwork Reduction Act of 1995

The information required on the certificate for health care workers showing that the alien possesses proficiency in the skills that affect the provisions of health care services in the United State (as provided in § 212.15(f)) is considered an information collection. Since a delay in issuing this interim rule could create a further backlog with respect to pending applications filed by aliens seeking to immigrate to perform labor in a health care occupation, the INS is using emergency review procedures, for review and clearance by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act (PRA) of 1995.

The OMB approval has been requested by November 13, 1998. If granted, the emergency approval is only valid for 180 days. Comments concerning the information collection should be directed to: Office of Information and Regulatory Affairs (OMB), OMB Desk Officer for the Immigration and Naturalization Service, Office of Management and Budget, Room 10235, Washington, DC 20503.

During the first 60 days of this same period a regular review of this information will also be undertaken. Written comments are encouraged and will be accepted until December 14, 1998. Your comments should address one or more of the following points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The Service, in calculating the overall burden this requirement will place upon the public, estimates that approximately 7,000 certificates will be issued annually. The Service also estimates that it will take the testing entity approximately 2 hours to comply with the requirements. This amounts to 14,000 total burden hours.

Organizations and individuals interested in submitting comments regarding this burden estimate or any aspect of these information collection requirements, including suggestions for reducing the burden, should direct them to: Immigration and Naturalization Service, Director, Policy Directives and Instructions Branch (HQPDI), 425 I Street NW., Room 5307, Washington, DC 20536.