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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