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R 262224SZ DEC 96
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY ASMARA
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
INFO USINS WASHDC

UNCLAS STATE 262058

VISAS

E.O. 12958: N/A

TAGS: CVIS
SUBJECT: P.L. 104-208 update No. 13: INA 212(a)(5): Labor Certification 
Changes

REF: (A) State 210953, (B) State 208799, (C) State 219622, (D) State 
227459, (E) State 226596, (F) State 225256, (G) State 225321, (H) State 
229819, (I) State 232219, (J) State 239978, (K) State 245754

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Summary
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1.	This cable is the thirteenth in a series providing information on the 
recent immigration act which was part of the omnibus legislation signed by 
the president on September 30.  The following provides the text of the 
revised INA 212(a)(5) and new INA 204(i) and a discussion of their impact 
on consular processing.  End Summary.

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Text of INA 212(a)(5) as amended by section 343 of Pub. L. 104-208
================
2.	Revised statutory language is set forth below.

	212(a)(5) Labor Certification and Qualifications for Certain 
Immigrants. -

	(A)	Labor Certification. - 

(i)	In general. - any alien who seeks to enter the United States for 
the purpose of performing skilled or unskilled labor is inadmissible, 
unless the secretary of labor determined and certified to the 
Secretary of State and the Attorney General that -

(i)	There are not sufficient workers who are 
-able, willing, qualified (or equally qualified in the case 
of an alien described in clause (i) and available at the 
time of application for a visa and admission to the United 
States and at the place where the alien is to perform such 
skilled or unskilled labor, and 
(ii) 	the employment of such alien will not adversely affect 
the wages and working conditions of workers in the United States 
similarly employed.

(ii)	Certain aliens subject to special rule for purposes of clause 
(i)(1), an alien described in this clause is an alien who -

(i)	is a member of the teaching profession, or
(ii)	has exceptional ability in the sciences or arts;
(iii)	Professional Athletes -
(i)	In general - a certification made under clause (i) with respect to a 
professional athlete shall remain valid with respect to the athlete after 
the athlete changes employer, if the new employer is a team in the same 
sport as the team which employed the athlete when the athlete first applied 
for the certification.

(ii)	Definition - for purposes of subclause (i), the term "professional 
athlete" means an individual who is employed as an athlete by -

(aa)	a team that is a member of an association of 6 or more 
professional sports teams whose total combined revenues exceed 
$10,000,000 per year, if the association governs the conduct of its 
members and regulates the contests and exhibitions in which its member 
teams regularly engage; or

(bb)	any minor league team that is affiliated with such an 
association.

(B)	Unqualified physicians. - an alien who is a graduate of a medical 
school not accredited by a body or bodies approved for the purpose by the 
secretary of education (regardless of whether such school of medicine is in 
the United States) and who is coming to the United States principally to 
perform services as a member of the medical profession is inadmissible, 
unless the alien (i) has passed parts I and II of the National Board of 
Medical Examiners Examination (or an equivalent examination as determined 
by the Secretary of Health and Human Services) and (ii) is competent in 
oral and written English.  For purposes of the previous sentence, an alien 
who is a graduate of a medical school shall be considered to have passed 
parts I and II of the National Board of Medical Examiners if the alien was 
fully and permanently licensed to practice medicine in a state on January 
9, 1988, and was practicing medicine in a state on that date.

(C)	Uncertified foreign health-care workers. - any alien who seeks to 
enter the United States for the purpose of performing labor as a health 
care worker, other than a physician, is inadmissible unless the alien 
presents to the consular officer, or, in the case of an adjustment of 
status, the Attorney General, a certificate from the Commission on 
Graduates of Foreign Nursing Schools, or a certificate from an equivalent 
independent credentialing organization approved by the Attorney General in 
consultation with the Secretary of Health and Human Services, in verifying 
that -

(i)	the alien's education, training, license, and experience -
(i)	meet all applicable statutory and regulatory requirements for 
entry into the United States under the classification specified in the 
application;
(ii)	are comparable with that required for an American health-care 
worker of the same type; and
(iii) are authentic and, in the case of a license, unencumbered;
(ii)	the alien has the level of competence in oral and written English 
considered by the Secretary of Health and Human Services, in consultation 
with the Secretary of Education, 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; and
(iii)	if a majority of states licensing the profession in which the 
alien intends to work recognize a test predicting the success on the 
profession's licensing or certification examination, the alien has passed 
such a test or has passed such an examination.

For purposes of clause (i), determination of the standardized tests 
required and of the minimum scores that are appropriate are within the sole 
discretion of the Secretary of Health and Human Services and are not 
subject to further administrative or judicial review.

(i)	Application of grounds. - the grounds for inadmissibility of aliens 
under subparagraphs (A) and (B) shall apply to immigrants seeking admission 
or adjustment of status under paragraph (2) or (3) of INA 203(b).

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Discussion of Above Changes
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3.	212(a)(5)(A)(iii) - professional athletes
The purpose of this amendment is obviously to allow professional athletes 
in the major leagues to move among the teams of that same league without 
requiring the employing team to file a new petition on behalf of the 
beneficiary athlete.  The major leagues' practice of moving athletes among 
the teams through free agency and frequent trades is now reflected in and 
facilitated by U.S. immigration law.  This law contemplates a situation 
where a player has changed teams subsequent to the filing of the labor 
certification but prior to a new visa application.  No formal instructions 
have yet been formulated by INS; but in the interim, if a consular officer 
encounters such a situation, he/she has at least two options.  First, the 
consular officer may accept a letter from the new employer/team verifying 
that the applicant athlete is now in their employ and that the employing 
team is either a team in a qualifying league of a minor league team 
affiliated with a major league team in a qualifying league.  On the other 
hand, if the consular officer is unsure of the applicability of this 
provision, submit the case to VO/L/A for an advisory opinion.  The 
Department will seek to devise a procedure with the INS, so that the 
record/file will clearly reflect that this provision applies, thus, 
avoiding not only any need for the officer to investigate further but, 
also, any delay in processing of the immigrant visa.

4.	212(a)(5)(C): Foreign Health-Care Workers

This section renders ineligible all foreign health care workers coming for 
the purpose of performing labor as a health care worker unless the alien 
"presents to the consular officer, or in the case of an adjustment of 
status, the Attorney General" a certificate from the CGFNS (Commission on 
Graduates of Foreign Nursing Schools) or an independent certifying agency 
approved by the Attorney General and verifying compliance with the several 
requirements listed in the statute (above).  The conference report leaves 
no doubt about congressional intent on the issue.  The report states: 
"Notwithstanding any international trade agreements or treaties a health 
care worker subject to prescreening under this section should include any 
alien seeking an immigrant or nonimmigrant visa as nurse, physical 
therapist, occupational therapist, speech-language pathologist, medical 
technologist and technician, and physician assistant."  The definitional 
list is left to the agencies to identify in the regulations.

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212(d)(3)(A) and (B) Waivers for Nonimmigrants Ineligible under INA 
212(a)(5)(C)
==========

5.	The majority of affected visa applicants will be applying based upon 
INS approved petitions:  Immigrant petitions in the EB2 and EB3 categories, 
and, if found applicable to nonimmigrants, H-1B, J, perhaps L, and Mexican 
TN's.  Canadian TN's do not need visas but may seek visa issuance.  The 
Canadian TN category may be the only nonimmigrant visa classification not 
requiring a petition that is affected by the new law.

As this ground of ineligibility became effective September 30, 1996, the 
agencies charged with administering the new law have not had adequate time 
to establish implementing guidelines.  In order to provide sufficient time 
to devise operating procedures and the selection of one or more certifying 
organizations, the Department and INS have agreed to waive ineligibility 
under INA 212(a)(5)(C) pursuant to INA 212(d)(3)(A) on a blanket basis for 
nonimmigrant aliens until further notice.  INS will also provide a blanket 
waiver of 212(a)(5)(C) ineligibilities under INA 212(d)(3)(B) for visa-
exempt Canadians applying for admission as TN's.

Alien health care workers who receive waivers for INA 212(a)(5)(C) 
ineligibilities should be issued visas limited to single entry with six-
month validity.

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INA 212(a)(5)(C) as it applies to immigrant visa applicants
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6.	Per the above, aliens who are seeking to the enter the United States 
as immigrants for the purpose of performing labor as health-care workers 
are required to be certified as set forth in 212(a)(5)(C).  since a 
certification process does not now exist (other than for physicians and 
nurses), alien health care workers who are applying for immigrant visas 
based upon offers of employment in the health care field should be refused 
under INA 212(a)(5)(C) pending the implementation of the required 
certification procedure.

Posts should make every reasonable effort to identify and notify those 
immigrant health care workers who: (1) have been issued visas on the basis 
of offers of employment in the health care field since September 30, 1996, 
(2) lack the required health care certification, and (3) have not already 
traveled and been admitted to the united States.  Since the Immigration and 
Naturalization Service has no legal authority to admit immigrant alien 
health care workers without an appropriate certification, visas for health 
care workers who have not already been admitted, and who are lacking 
certification, should be revoked in accordance with INA 221(i) (See also 
22CFR 42.82) until such time as an appropriate certification program has 
been established and the applicant presents the required certification.

Absent a technical correction to P.L. 104-208 that would move INA 
212(a)(5)(C)'s effective date into the future, developing and implementing 
a certification program may well be protracted as it necessarily requires 
coordination among State, INS, Education, and Health and Human Services.  
The field will be informed as soon as implementing procedures have been 
established.

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Treaty Obligations
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7.	The Department will be working with other interested agencies not only 
to develop the necessary implementing procedures, but, also, to find a way 
to address the concerns raised by the potential conflict with certain U.S. 
International Treaty obligations apropos nonimmigrant visa issuance.

8.	Minimize Considered

Talbott