Immigration Law Advisory Bulletin
Effective July 26, 2004, Certificates Required
for Certain Nonimmigrant Health Care Workers
By Christopher
R. Helm and Richard
M. Rawson
[July 2004]
The purpose of this advisory bulletin is to alert employers in
the health care industry who may be affected by a 1996 immigration
law that will take effect on July 26, 2004, and require foreign
workers in designated health care occupations to obtain a health
care certificate (popularly known as a “VisaScreen™”)
before certain immigration benefits may be granted. Physicians are
not subject to the requirement. The categories of foreign health
care workers affected include:
- Nurses (including Registered Nurses and Licensed Vocational/Practical
Nurses), physical therapists, occupational therapists, speech
language pathologists, medical technologists (Clinical Laboratory
Scientists), medical technicians (Clinical Laboratory Technicians),
and physician assistants.
- Those workers who seek admission to the United States in nonimmigrant
work visa status on or after July 26, 2004.
- Those for whom an initial visa petition is filed, or Canadians
who apply for a work visa at the border, on or after July 26,
2004.
- Workers already in the United States whose extension or change
of visa status will be approved on or after July 26, 2004.
History
Under Section 343 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRAIRA), immigrant and nonimmigrant
health care workers in certain occupations are required to possess
a health care certificate before they can be admitted to the United
States, extend their status, or receive work authorization. The
purpose of the health care certificate is to ensure that foreign
health care workers’ education, experience, training and English-language
ability are equivalent to that of U.S. health care workers. On July
25, 2003, the final rule related to Section 343 was published by
the Department of Homeland Security and became effective on Sept.
23, 2003. While applicants of immigrant visas (green cards) based
on employment in one of the designated health occupations have been
required to present a health care certificate since IIRAIRA became
effective in September 1996, nonimmigrant health care workers have
been exempt from the certificate requirement and were granted a
one year transition period when the final rule was published in
2003. Pursuant to the final rule, nonimmigrant workers must present
a health care certificate in order to be admitted to the United
States, to have an extension of stay or change of status approved,
or to receive work authorization on or after July 26, 2004.
Implementation effects on affected workers
Nonimmigrant health care workers affected by the health certificate
requirement are likely to be in the United States, or
to be seeking admission to the United States, in H-1C, H-1B, J,
O, or TN nonimmigrant visa classification. The certificate
requirement does not apply to foreign workers admitted to perform
services in a nonclinical health care occupation or foreign workers
coming to the United States to receive training in a health care
worker occupation.
Foreign health care workers who seek admission to the
United States in nonimmigrant status on or after July 26th,
2004, to work in their field of health care will be
deemed to be “inadmissible” and denied admission unless
they can provide evidence of health care certification. Prior to
July 26th, the Citizenship and Immigration Services (CIS) of the
Department of Homeland Security will approve petitions to extend
a nonimmigrant health care worker’s stay or to change the
visa status of such a worker without a health care certificate.
Any such petitions filed during the one year transition period when
the final rule was published will be approved for a period no longer
than one year from the date of the decision. Such workers, therefore,
must take action to obtain a health care certificate to file with
any subsequent extension petition. While the approval of the petition
will permit such workers to remain in the United States and work,
they should avoid traveling outside the United States until they
possess a certificate to present when they seek admission upon returning
to the United States.
One group to whom the certificate requirement applies consists
of health care workers for whom an initial visa petition
is being filed to enable them to begin working in the United States.
A U.S. employer filing a petition with the CIS for H, J, or O status
for such a worker must include a health care certificate with the
petition. A Canadian worker who applies for TN status
at a U.S. Port of Entry will be required to present a health care
certificate at the time of application. While health
care workers who are abroad and intend to work in J-1 status are
not required to first obtain CIS approval before applying for their
visa at a U.S. consular post, they must present a certificate when
they submit their J-1 visa application at the post.
Another group of workers who will be required to present a health
care certificate is those who are already in the United
States and need to extend their nonimmigrant work visa status to
continue working in their health care field or are in the United
States in another visa category (such as F-1 student status) and
need to change their visa status in order to begin working as a
health care worker. When a U.S. employer files a petition
to extend the status of such a worker or to change the worker’s
visa status to one which permits employment in the United States,
the petition must be accompanied by a health care certificate.
A third group of health care workers who will be impacted by the
health care certificate requirement is those workers
who are already employed in the United States based on their nonimmigrant
work visa status, but who need to or wish to travel outside the
United States. This group includes Canadian workers
who live in Canada and commute daily to their work place in the
United States. Beginning on July 26, 2004, such workers will be
required to present a health care certificate every time they seek
admission to the United States to work.
Foreign health care workers who are already working
in the United States in valid nonimmigrant visa status before July
26, 2004, but do not yet have their health care certificate,
should remain in the United States until they possess a certificate.
Such workers who have not begun the process to obtain a health care
certificate should do so immediately, particularly if a petition
to extend their status will need to be filed in less than six or
seven months. If they do not receive their certificate in time for
the employer to file an extension petition, the worker may be required
to stop working temporarily and may need to take steps to avoid
staying in the United States without authorization. Traveling outside
the United States on or after July 26th and before they obtain a
health care certificate may make them inadmissible and unable to
return to the United States.
Solutions
U.S. employers who need to petition the CIS for work authorization,
extension of stay, or change of status for foreign health care workers
who are unlikely to have a health care certificate by July 26th,
should file a petition without delay and employers of Canadians
in professions which qualify for TN status, should have the workers
apply for TN status at the border before July 26th. Health care
workers who are outside the United States, including Canadians,
must be admitted to the United States in their new visa status before
July 26th. It may be possible for Canadian health care workers to
be admitted to the United States in new TN status before July 26th
because TN workers can apply at the border without first obtaining
CIS approval. It is unlikely, however, that foreign workers for
whom a petition has yet to be approved as of mid-July will be issued
an approval notice in time to obtain a visa in their passport and
be admitted to the United States before July 26th. Canadians are
exempt from the requirement to obtain a visa and may be able to
be admitted to the United States before July 26th if they have a
timely CIS approval notice in hand.
Delay of effective date
In recent months, a number of health care-related organizations
have been lobbying Secretary Tom Ridge of the Department of Homeland
Security and members of the U.S. Congress to extend for an additional
year the waiver of the health care certificate for nonimmigrant
workers. In March 2004, members of the Committee on the Judiciary
of the U.S. Senate wrote a letter to Secretary Ridge urging him
to delay the effective date of the certificate provision to Oct.
1, 2005. As of July 12, 2004, no delay has been approved.
If you have questions or would like more
information, please contact any member of DWT’s immigration
practice team, including:
James
M. Mei, Portland, (503) 778-6315, JimMei@dwt.com
This Immigration Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
inimmigration law. It is not intended, nor should it be used, as
a substitute for specific legal advice as legal counsel may only
be given in response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright
Tremaine LLP.
return to Advisory Bulletins
main page
|
