INS Memorandum Discussing Foreign Health Care Workers
Date: June 6, 1997
Subject:Instructions on the Processing of Certain Foreign
Health Care Workers: IIRAIRA Section 343
All District Directors
All Service Center Directors
All Regional Directors
Office of Field Operations
All Regional Counsels
All District Counsels
Director of Training - Artesia
Director of Training - Glynco
From: Office of Examinations (HQEXAM)
The purpose of this memorandum is to provide you with additional
information with respect to the processing of foreign health care workers
affected by section 343 of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRAIRA). As you know, this office published a
memorandum dated January 28, 1997 which provided initial guidance with
respect to the implementation of section 343. This memorandum updates
certain portions of the January 28 memorandum.
Effective immediately, the only health care occupations covered by
212(a)(5)(C) of the Act, as added by section 343 of IIRAIRA are the
following: nurses, physical therapists, occupational therapists, speech
language pathologist, medical technologist, medical technicians and
physician assistants. An alien coming to the United States to perform
health care services in any other occupation, either as an immigrant or a
nonimmigrant, is not subject to a determination of admissibility under INA
212(a)(5)(C). You will be notified as additional occupations are added to
this listing. This is a significant change from the January 28 memorandum
which applied the statutory provision to all health care workers. This
memorandum limits the applicability of the statutory provision to
occupations listed in the conference report.
Nonimmigrants-Waiver of Inadmissibility
The January 28 memorandum indicated that the INS and the Department of
State (DOS) had 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 TNs. Under this blanket waiver,
Service officers at U.S. Ports-of-Entry and foreign pre-clearance sites may
accept applications for waivers. Any otherwise 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
Field Offices are hereby notified that this waiver should be granted
without the filing of a formal application or fee. Further, any otherwise
admissible nonimmigrant health-care worker granted a waiver of this
provision shall be authorized admission into the United States with a
single-entry Form I-94 valid for six (6) months except in the case of
aliens who reside in and commute from contiguous territories. These
aliens shall be issued a multiply-entry Form I-94 valid for six (6) months.
This procedure will be effective until further notice.
Nonimmigrants-Change of Status or Extensions of Temporary Stay
Applicants for change of nonimmigrant status or for an extension of
temporary stay under a nonimmigrant visa category involving a health care
occupation may also be granted a waiver of 212(a)(5)(C) inadmissibility,
without form or fee, and may be granted an extension of stay of 1 year or
for the requested period of the extension of time if less than 1 year.
Service officers are reminded that the waiver procedures discussed above
relate solely to nonimmigrant aliens and do not apply to immigrant aliens.
The statutory authority to grant waivers under 212(d)(3) of the Act applies
to aliens seeking classification/admission as nonimmigrant aliens.
Pursuant to the instructions contained in the January 28 memorandum with
respect to the processing of immigrant health care workers, applications
for adjustment of status filed by aliens who are the beneficiaries of
approved employment-based immigrant petitions to work as health care
workers must be held in abeyance until further notice.
An interagency task force has been established for the purposes of devising
a procedure to implement section 343. The Service will issue a rule in the
near future to implement section 343 of IIRAIRA. You will be advised of
any further developments as soon as they occur.
In part III of the January 28 memorandum, the INS discussed the
certification requirements for registered nurses. The memorandum implied
that a nurse could adjust status in the United States if the nurse obtained
a certification from the Commission on Foreign Nursing Schools (CGFNS).
Unfortunately, the certification contemplated in the memorandum has not
been developed by the CGFNS. The current CGFNS certificate is not
equivalent to the certification discussed in section 343 of IIRAIRA. There
are at least two differences between the two certifications. As a result,
a nurse may not adjust status in the United States or be admitted to the
United States on an immigrant visa until such time as the nurse obtains a
certificate issued under the provisions of section 343 of IIRAIRA. Nurses
seeking entry into the United States as nonimmigrant aliens should be
processed pursuant to the instructions contained in the section of this
memorandum discussing waivers.
Service officers should not advise an alien to obtain a certificate from
CGFNS since the current certificate does not overcome this ground of
inadmissibility. This provision applies to both aliens educated in the
United States and abroad.
For further information, please contact Adjudications Officer John W. Brown
Louis D. Crocetti, Jr.