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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.
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