New Homeland Security Regulation Requires Certification for Nurses and Other Healthcare Workers

In late July of this year, the Department of Homeland Security (DHS) published a final regulation regarding certification of some nonimmigrant healthcare workers. According to Section 212(a)(5)(C)and section 212(r) of the Immigration and Nationality Act, certain healthcare workers, including nurses, are required to either obtain certification, or demonstrate that they meet alternative certification requirements. These workers must also meet certain English language testing requirements.

According to this regulation, individuals seeking to enter the U.S. primarily to work as healthcare workers (with the exception of physicians) must either provide a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or provide equivalent credentials. Healthcare workers affected by this regulation include nurses (licensed practical nurses, licensed vocational nurses and registered nurses), physical therapists, speech-language pathologists and audiologists, occupational therapists, medical technologists and technicians and physician assistants.

Previous to this final regulation, the INS and Department of State had waived the foreign healthcare worker certification requirement for healthcare workers until the final regulations were concrete. This final regulation requires these healthcare workers to present certification to the DHS each time they apply for admission to the U.S. The regulation will take effect September 23, 2003. However, the DHS will continue to use the waiver at its discretion for a period of one year. According to the DHS:

“During [this one-year period], the DHS will admit and approve applications for extension of stay and/or change of status for nonimmigrant healthcare workers. Also, during the one-year period the temporary admission, extension of stay, or change of status of a nonimmigrant healthcare worker will be subject to the following changes:

(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 healthcare worker certification within 1 year of the date of admission or the date of the decision 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 stay or change the alien’s nonimmigrant status must include proof that the alien has obtained the healthcare worker certification if the extension of stay or change of status is sought for the primary purpose of the alien’s performing labor in an affected healthcare occupation.

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U.S. Plans to Drastically Cut the Number of H1-B Visas Issued

The US proposes to drastically reduce the amount of employment visas it offers to “highly qualified” employees from 195,000 to 65,000 by the month’s end. This reduction will be implemented October 1, unless Congress acts to change the directive. Most experts, however, do not believe Congress will do anything to stop the reduction.

This change will affect the amount of H1-B visas issued per year. H1-B visas have been traditionally used to import high-tech employees to the U.S.; most of these employees come from the South Asian subcontinent.

The reduction in issued H1-B visas, according to Senators Orrin Hatch (R-UT) and Patrick Leahy (D-VT), is a means to address the high level of unemployment in the U.S. “Given the weakness of our current economy, and the rising unemployment we have experienced under President Bush’s stewardship,” says Leahy, “many who supported the increase in 2000 now believe that 65,000 visas are sufficient.”

But high tech employers feel the reduction will do more to hurt the U.S. economy than help it. Employers assert that foreign workers are necessary in today’s economy, and that it is an impossible feat to find enough American workers with the advanced education, skills, and expertise needed to fuel high-tech industries based in the U.S.

It is expected that immigration attorneys will be faced with an exorbitant amount of requests from companies seeking to apply for H1-B visas prior to the reduction.

Analysis of The L-1 Visa (Intracompany Transferee) Reform Act of 2003

On September 17, Senator Chambliss (R-GA) introduced the “L-1 Visa (Intracompany Transferee) Reform Act of 2003.” Narrower in scope than previous L legislation, this bill would modify only the L-1B visa program, re-instate the 1 year work requirement for blanket applicants, and mandate collection of L-1 program statistical data.

Specifically, this legislation would:

Modify INA Section 214(c)(2) to prevent an L-1B visa holder from being primarily stationed at the worksite of another employer in cases where: The L-1B visa holder will be controlled and supervised by an unaffiliated employer, or The placement of the L-1B visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection in order to perform a duty involving specialized knowledge specific to the petitioning employer. Strike from INA Section 214(c)(2)(A) the provision permitting the 6 month work requirement for L-1 blanket petitions.

Require Department of Homeland Security to maintain statistics on petitions filed for L-1 visas, including the number of L-1B petitions approved in total as well as the number of L-1B petitions approved where the visa holder will work primarily offsite.

If enacted, the legislation will go into affect 180 days after the date of enactment.

Source: AILA

State Department Extends Deadline to Update Passports to Visa Waiver Program Participants

The U.S. State Department has extended for one more year their target date to limit access to the U.S. to only individuals with machine-readable passports. This extension is directly related to the 27 countries that participate in the visa waiver program. Many of these countries have not yet been able to update their passports to match U.S. proposed regulations.

The countries in the visa waiver program include nations in Western Europe, Japan and Australia, and it is presupposed that the majority of their citizens would not attempt to work in the U.S. illegally.

This extension applies to all but one of the countries participating in the visa waiver program. Belgium cannot apply in this extension. This deadline has applied to Belgium since May 2003, because of U.S. concerns about the security of Belgian passports.

The other 26 countries have been given a new deadline of October 26, 2004, by which they must introduce “biometric identifiers” in the passports of their citizens. These identifiers should include digital data about either the person’s facial features or their fingerprints.

The Visa Waiver Program enables citizens of participating countries to travel to the U.S. for pleasure or business for 90 days or less without officially obtaining a U.S. visa. While most interested parties do not need to apply for a visa, certain exceptions do apply. Some travelers still need to apply for a visa, including people who plan to work or study in the U.S., stay more than 90 days, or people who might otherwise be ineligible for a visa. Travelers who have previously been denied visas, who have criminal records or who may be ineligible to enter the U.S. on the VWP, should contact the nearest U.S. Embassy or Consulate before attempting to use the VWP to enter the U.S.

Cuban Singers Unable to Enter US to Attend Latin Grammys

In a public relations fiasco last week, the U.S. Department of State did not process in time visas to allow Cuban musicians to attend the Latin Grammys. According to State Department spokesman, Richard Boucher, “We all know that Cuba is on the State Sponsors of Terrorism list, and therefore all Cubans have to get appropriate handling for their visas, and it takes a while.” Boucher went on to state that the aforementioned Cuban musicians did not turn their visa applications in soon enough to for the applications to be processed.

In response to questions regarding the Cubans missing from the Latin Grammys, Boucher stated: “Here, we have people who have applied very late in the process, and we’re trying to do what we can for them. But I can’t promise we can get it all done in time. You can’t expect us to do all the necessary, legally required, and prudent checks in a very, very short length of time with an event coming up in a few days.”