Additional Authoriztion to Issue Certificates for Foreign Health Care Workers [64 FR 23174] [FR 20-99]

DOCUMENT NUMBER: FR20-99

FEDERAL REGISTER CITE: 64 FR 23174

DATE OF PUBLICATION: April 30, 1999

BILLING CODE 4410-10

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.

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.

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 comi ng 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 consult ation 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 examinat ion, 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 NBC OT 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.