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INS Letter Discussing Foreign
Health Care Workers


Jan 28, 1997

From:	Office of Examination (HQEXM)

To:	Regional Directors
	District Directors
	Service Center Directors
	Director, Office of Administrative Appeals
	Officers-in-Charge
	Officer of Field Operations
	Immigration Officer Training Academies

Background

Section 343 of the Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRAIRA) created a new exclusion ground 
for "any alien who seeks to enter the United States for the 
purpose of performing labor as a health-care worker, other 
than a physician."  The new section 212(a)(5)(C) of the 
Immigration and Nationality Act (Act) requires that all 
aliens who seek adjustment of status under section 245 of 
the Act or apply for an immigrant visa based on an 
employment-based immigrant classification to work as health-
care workers are excludable unless they have a certificate 
from the Commission on Graduates of Foreign Nursing Schools 
(CGFNS) or a certificate from an equivalent credentialing 
organization approved by the Attorney General, in 
consultation with the Department of Health and Human 
Services, verifying the alien's training, licensing, 
experience, and competency in English appropriate to the 
position in which the alien will be employed.  Section 343 
of the IIRAIRA was effective on September 30, 1996, the date 
the President signed the legislation.  While it is clear 
that a certificate from CGFNS will be required for all 
aliens who seek to enter the United States to perform 
services as registered nurses, the Service has yet to 
determine which occupations are "health-care professions" 
and which entities will be designated credentialing 
organizations for other health care professions.  The effect 
of section 343 of the IIRAIRA on nonimmigrant petitions and 
entries is addressed in these instructions.

I. 	Adjudication of Employment-Based Petitions

Until further notice, service centers must continue to 
adjudicate Form I-140 petitions filed on behalf of 
beneficiaries who will be working as health-care workers 
under the current regulations and policies.  In adjudicating 
a Form I-140 petition filed on behalf of a health-care 
worker, the service centers should not consider this new 
exclusion ground.

II. 	Eligibility to Apply for Adjustment of Status

Until further notice, a beneficiary of an approved 
employment-based immigrant petition who will be working as a 
health-care worker remains eligible to file for adjustment 
of status, notwithstanding this provision.  The beneficiary 
will be eligible to apply for employment authorization and, 
if necessary, advance parole.

III. 	Adjudication of the Adjustment of Status 
Application

A.	Registered Nurses

Effective immediately, Service offices may not grant an 
application for adjustment of status for an alien who is 
applying for adjustment of status based on an approved 
employment-based petition (Form I-140) to work as a 
registered nurse unless the alien presents or the alien's 
file or petition includes a CGFNS certificate issued to the 
alien.  If the applicant does bit gave a CGFNS certificate, 
the application for adjustment of status much be held in 
abeyance until the applicant can obtain a CGFNS certificate.

B.	Other Health-Care Workers (Except Registered Nurses or 
Physicians)

All other applications for adjustment of status filed by 
aliens who are the beneficiaries of approved employment-
based immigrant petitions to work as health care workers, 
except registered nurses and physicians, must be held in 
abeyance until further notice.  If an application for 
adjustment of status is held in abeyance, the applicant may 
continue to apply for employment authorization and if 
necessary, advance parole.  While Congress did not define 
the term "health-care worker" in the legislation, the 
legislative history indicates that the term included 
physical therapist, occupational therapist, speech-language 
pathologist, medical technologist and technician, physician 
assistant and other occupations.  See Conf. Rep. 104-828, 
104th Cong., 2nd Sess. 226.

IV.	Nonimmigrants

Congressional intent is clear that, notwithstanding any 
international trade agreements or treaties, a "health-care 
worker" subject to prescreening under this section should 
include any alien, except a physician, seeking an immigrant 
or nonimmigrant visa as a nurse, physical therapist, 
occupational therapist, speech-language pathologist, medical 
technologist and technician, physician assistant.  The 
majority of affected visa and visa-exempt applicants will be 
applying upon service-approved petitions.  Canadian TN 
immigrants may be the only non-petition based visa 
classification to fall within this affected class of 
inadmissibility.

In order to provide sufficient time to devise operating 
procedures and the selection of certifying organizations, 
the Department of State (State) and the Service have agreed 
to a blanket waiver of inadmissibility under section 
212(a)(5)(c) for nonimmigrant health care workers lacking 
the required CGFNS certificate or other certification 
pursuant to section 212(d)(3)(A) until such time as 
appropriate certification procedures have been put in place.  
The Service will also waive inadmissibility under section 
212(a)(5)(c) pursuant to section 212(d)(3)(B) for aliens 
already in possession of nonimmigrant visas or who are visa-
exempt aliens, including Canadians applying for admission as 
TN's.  Under this blanket waiver, Service officers at U.S. 
Ports-of-Entry and foreign pre-clearance sites may accept 
applications for waivers.  Any other wise admissible 
nonimmigrant health-care worker who receives a waiver for 
section 212(a)(5)(c) inadmissibility shall be authorized 
admission into the United States with a single-entry Form I-
94 with a validity date of six (6)MONTHS.  Otherwise 
admissible dependents covered by the blanket policy will 
also be authorized admission into the United States for a 
time coinciding with that of the principal alien.

V.	Immigrants

While the Department of State has ceased issuing immigrant 
visas to aliens seeking to enter the United States for the 
purpose of performing labor as health-care workers, a number 
of aliens may seek entry as immigrants without the required 
certification.  The Service has no legal authority to admit 
them as immigrants.  Consequently, alien health-care workers 
(other than physicians) who are applying for admission with 
immigrant visas based upon offers on employment in the 
health care field must be placed in exclusion or removal 
proceedings unless the alien is already in possession of the 
required CGFNS certiface.  Any dependents will also be 
placed in exclusion proceedings.

If there are any questions concerning this provision, please 
contact Michael Straus, HQBEN, at (202)514-5014.

Louis D. Crocetti, Jr.
Associate Commissioner

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