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INS Interim Regulations for Certification of Foreign Health Care Workers


[Federal Register: October 14, 1998 (Volume 63, Number 198)]

[Rules and Regulations]

[Page 55007-55012]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14oc98-2]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212 and 245

[INS-1879-97]

RIN 1115-AE73

Interim Procedures for Certain Health Care Workers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule, which has been drafted in consultation with
the U.S. Department of Health and Human Services (HHS), amends
regulations of the Immigration and Naturalization Service (Service or
INS) in order to implement, on a temporary basis, certain portions of
section 343 of the Illegal Immigration Reform and Immigrant
Responsibility act of 1996 (IIRIRA) as they relate to prospective
immigrants. Section 343, which was codified at section 212(a)(5)(C) of
the Immigration and Nationality Act (Act or INA), provides that aliens
coming to the United States to perform labor in covered health care
occupations (other than as a physician) are inadmissible unless they
present a certificate relating to their education, qualifications, and
English language proficiency. This requirement is intended to ensure
that aliens possess proficiency in the skills that affect the provision
of health care services in the United States. This rule establishes a
temporary mechanism to allow applicants for immigrant visas or
adjustment of status in the fields of nursing and occupational therapy
to satisfy the requirements of section 343 on a provisional basis. The
Service expects to publish a proposed rule in the near future which
will implement in full the provisions of section 343.

DATES:  Effective date: This rule is effective December 14, 1998.

    Comment date: Written comments must be submitted on or before
February 11, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference the INS No. 1879-97
on your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.

FOR FURTHER INFORMATION CONTACT:

John W. Brown, Adjudications Officer, Benefits Division, Immigration
and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC
20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION: On September 30, 1996, President Clinton
signed the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. 104-208. Section 343 of IIRIRA created a new ground
of inadmissibility at section 212(a)(5)(C) of the Act for aliens coming
to the United States to perform labor in certain health care
occupations. Pursuant to section 343, any alien coming to the United
States for the purpose of performing labor as a health care worker,
other than as a physician, is inadmissible unless the alien presents to
the consular officer, or, in the case or adjustment of status, the
Attorney General, a certificate from the Commission on Graduates of
Foreign Nursing Schools (CGFNS), or an equivalent independent
credentialing organization approved by the Attorney General in
consultation with the Secretary of HHS.

    Under section 343, the certificate must verify that: (1) The
alien's education, training, license, and experience meet all
applicable statutory and regulatory requirements for admission into the
United States under the classification specified in the application;
are comparable with that required for an American health care worker;
are authentic and, in the case of a license, the alien's license is
unencumbered; (2) the alien has the level of competence in oral and
written English considered by the Secretary of HHS, in consultation
with the Secretary of Education (DoE), 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 applicants ability to speak
and write English; and, finally, (3) if a majority of states licensing
the profession in which the alien intends to work recognize a test
predicting the alien's success on the profession's licensing or
certification examination, the alien has passed such a test, or has
passed such an examination.

    Section 343 raises a number of important and difficult issues as to
its scope and proper implementation and requires extensive coordination
between the Service and other Federal agencies. Prior to the
publication of this rule, the Service met with representatives of HHS,
as well as the United States Trade Representative, the Department of
Labor (DOL), the Department of State (DOS), the DoE, the Department of
Commerce (DOC), the CGFNS, the National Board for Certification in
Occupational Therapy (NBCOT), various professional organizations
representing these health care occupations, and many other interested
parties.

The Purpose of the Interim Rule

    The purpose of this interim rule is to establish temporary
procedures which will: (1) Allow the immigration of certain health care
workers into the United States on a permanent basis in order to prevent
the disruption of critical health care services to the public; (2)
provide for the immigration of certain health care workers who were
petitioned on a permanent basis prior to the enactment of IIRIRA; and
(3) establish a temporary mechanism to ensure that nurses and
occupational therapists immigrating to this country have education,
experience, and training which are equivalent to a United States worker
in a similar occupation.

    This interim rule provides a temporary mechanism for implementing
section 343 with respect to nurses and occupational therapists. Aliens
who obtain a certificate in accordance with this interim rule will be
deemed to have satisfied the education, training, and licensing
requirements of section 343. Credentialing organizations verifying that
an alien's education, training, license, and experience meet all
applicable statutory and regulatory requirements for admission into the
United States under the classification specified in the application are
required to determine, to the best of their ability, whether the alien
appears to be classifiable under section 203(b) of the Act. (The
Service has substituted the term ``admission'' for the term ``entry,''
in conformity with section 308(f) of Pub. L. 104-208 which amended the
Act.) Although credentialing organizations are required to make certain
verifications in accordance with this interim rule, the Service is not
in any way deferring or delegating to the credentialing organizations
the authority to make binding determinations regarding the alien's
admissibility into the United States.

[[Page 55008]]

    The decision to include nursing and occupational therapy in this
interim rule was based on information from DOL that there is a
sustained level of demand for foreign-trained workers in these two
occupations. Moreover, organizations with an established track record
in providing credentialing services exist for these two occupations.
For the purposes of this interim rule, the Service finds that these two
criteria allow the implementation of section 343 of IIRIRA on a
temporary basis.

    For the purposes of this interim rule, the term ``sustained level
of demand'' means the presence of an existing demand for foreign health
care workers in a particular occupation that is expected to continue in
the foreseeable future.

    The term ``organizations with an established track record'' means,
for the purposes of this interim rule, an organization which has a
record of issuing actual certificates, or documents similar to a
certificate, that are generally accepted by the state regulatory bodies
as certificates that an individual has met certain minimal
qualifications.

    The two organizations identified in this rule, the CGFNS for nurses
and the NBCOT for occupational therapists, are organizations which have
been issuing certificates, or similar documents, for a period of years
and which have attained credibility with the various professional and
regulatory bodies which deal with the two occupations listed in this
rule. Therefore, the NBCOT and the CGFNS both meet the two criteria
identified for inclusion in this interim rule. The Service has not
identified other credentialing organizations which have an established
track record in providing credentialing services for these two
occupations other than the two organizations discussed in this rule.

    During the period of time that the interim rule is in effect, the
Service will entertain any requests to issue certificates from an
organization which demonstrates a proven track record in issuing
certificates for a health care occupation and where there is a
sustained level of demand for foreign-trained individuals. Such
organizations are encouraged to contact the Service at the address
provided earlier in the rule.

    The implementation of this interim rule on a limited basis also
allows the Service additional time to obtain comment on a number of
issues which extend beyond near-term immigration issues in nursing and
occupational therapy to other policy concerns, such as the overall
impact on the public health and the domestic labor market for a variety
of health care occupations.

    Given the complex nature of the requirements of section 343, the
Service will publish a proposed rule in the near future which will,
among other things, list all the occupations covered by section 343,
further describe the procedures for obtaining and presenting the
certificates, describe the standards required for an organization to
obtain approval to issue certificates, and describe the procedure
whereby an organization's authorization can be terminated by the
Service. The Service believes that major issues such as the scope of
covered occupations, the standards for obtaining authorization to issue
certificates, and the procedure for termination of an organization's
authority to issue certificates are better addressed through proposed
rule making. The Service expects to publish the proposed rule as soon
as possible, within approximately 1 year.

The Service's Temporary Policies and Their Effect

    The Service has issued a number of temporary policy guidelines
which will continue to apply while the Service develops a rule fully
implementing section 343.

Occupations Covered

    The current policy of the Service is that section 343 is applicable
only to the seven occupations listed in the Joint Explanatory Statement
of the Committee of Conference published in the Congressional Record of
September 24, 1996, Nos. 132-133, page H10900. The seven occupations
are: Nursing, physical therapy, occupational therapy, speech language
pathology, medical technology, medical technician, and physician's
assistant.

Nonimmigrant Health Care Workers

    In order to ensure that health care facilities remain fully staffed
and are able to continue to provide the same level and quality of
service to the United States public pending promulgation of a final
rule, the Service and DOS have agreed to exercise authority under
section 212 (d) (3) of the Act and temporarily waive the certification
requirement of section 343 for aliens coming to the United States as
nonimmigrant care workers. The Service and the DOS have agreed to
extend from 6 months to 1 year the period for which such a waiver is
granted. This policy will continue until a final rule is published
which fully implements section 343.

Immigrant Health Care Workers

    There is a two-step process for an alien to become a permanent
resident or enter the United States as an immigrant to perform labor as
a health care worker. In general, a United States employer must file a
Form I-140, Immigrant Petition for Alien Worker, with the Service with
the appropriate supporting documentation. The Form I-140 petition
establishes the alien's eligibility for the employment-based
classification sought. Once the Form I-140 petition is approved by the
Service, the alien may apply for an immigrant visa abroad at a consular
post or apply for adjustment of status to that of a lawful permanent
resident by filing a Form I-485, Application to Register Permanent
Resident of Adjust Status in the United States.

    The Service has no statutory authority to waive the requirements of
section 343 for aliens coming to the United States permanently as
immigrants to perform health care services in this country. Thus, the
Service has adopted an interim policy whereby, instead of denying the
applications for adjustment of status filed by uncertified aliens
seeking to perform labor on a permanent basis in covered health care
occupation, such applications are held in abeyance pending promulgation
of the implementing regulations. Similarly, the DOS has no statutory
authority to issue immigrant visas to such uncertified aliens, and has
held visa applications from such persons in abeyance as well. As a
result, the number of applications for adjustment of status which have
been held in abeyance and the number of aliens unable to obtain
immigrant visas has grown to significant proportions. The four service
centers have advised that they are holding in excess of 11,000 such
adjustment cases in abeyance.

Who Is Affected by the Rule--Sec. 212.15(a), (b) and (c)

    This interim rule will apply to aliens coming to the United States
as immigrants and to aliens applying for permanent residency to perform
labor in the occupations of nurse and occupational therapist. This
interim rule does not apply to any other health care occupation. The
applications of aliens seeking to engage permanently in any of the
other five health care occupations, i.e., physical therapy, speech
language pathology, medical technology, medical technician, and
physician's assistant, listed in the Joint Explanatory Statement
previously cited, will continue to be held in abeyance pending
promulgation of a final regulation implementing section 343.

    This interim rule does not affect the admission of nonimmigrant
aliens coming to the United States to work

[[Page 55009]]

temporarily in any health care field. Nonimmigrants in the fields or
nursing, occupational therapy, physical therapy, speech language
pathology, medical technology, medical technician, or physician's
assistant will continue to be admitted consistent with the Service's
waiver policy previously described.

    At this time, the Service has not extended the application of
section 343 beyond the seven occupations listed in the Joint
Explanatory Statement of the Committee of Conference. The Service, in
consultation with HHS, may include additional health care occupations
in its forthcoming proposed rule and expects to seek public comment on
whether such occupations should be affected by section 343. Until a
final regulation implementing section 343 is promulgated, however, the
Service (as well as DOS) will continue to deem both immigrants and
nonimmigrants in occupations other than the seven listed above to be
exempt from the requirements of section 343. Applications for permanent
resident status filed by aliens to work in the occupations of speech
language pathologist, medical technologist, medical technicians,
physical therapists, and physician assistants, however, will continue
to be held in abeyance until a final rule is published. Further, the
DOS has notified the Service that it will continue its policy of not
issuing immigrant visas to aliens coming to the United States to
perform labor in these five occupations until a final rule is
published.

    The Service has interpreted the term ``performing labor as a health
care worker'' to mean providing direct or indirect health care services
to a patient. Aliens coming to the United States to perform services in
non-clinical health care occupations such as, but not limited to,
medical teachers, medical researchers, managers of health care
facilities, and medical consultants to the insurance industry,
therefore, are not covered by the provisions of section 343.
Individuals employed in these occupations do not perform patient care
and, therefore, are not performing labor in a health care occupation as
contemplated in the statute. Nevertheless, aliens who are indirectly
involved in the performance of patient care, for example, supervisory
nurses, must comply with the provisions of section 343.

    Since the statute specifically refers only to aliens who are
seeking to enter the United States under section 203(b) of the Act for
the purpose of performing labor as health care workers, section 343
does not apply to the spouse and dependent children of such aliens.
Dependent aliens are admitted to the United States for the primary
purpose of family unity and are merely accompanying the principal
alien. Therefore, the admissibility of dependent aliens is not affected
by the provisions of section 343. For similar reasons, it is the
position of the Service that an alien who has applied for adjustment of
status under section 245 of the Act on the basis of a family-sponsored
immigrant petition pursuant to section 203(a) of the Act or on the
basis of an employment-based immigrant petition in a non-health care
occupation does not have to comply with section 343 of IIRIRA.

    Additionally, an alien who applies for adjustment of status
pursuant to sections 209, 210, 245a, 249 or any other section of the
Act is not affected by the provisions of section 343 of IIRIRA. This
distinction derives from the fact that section 343 of IIRIRA applies
only to aliens who are coming to the United States for the primary
purpose of performing labor as a health care worker. Aliens applying
for adjustment of status under these statutory provisions, regardless
of their ultimate professional goal, will not be deemed to be adjusting
status for the purpose of performing labor as a health care worker.

Organization Granted Temporary Approval To Issue Certificates for
Nurses and Occupational Therapists--Sec. 212.15(e)

    This rule grants temporary authorization to the CGFNS to issue
certificates to aliens coming to the United States on a permanent basis
to work in the field of nursing. This rule grants temporary
authorization to the NBCOT to issue certificates to aliens coming to
the United States on a permanent basis to work in the field of
occupational therapy.

    Under this interim rule, CGFNS is authorized to issue certificates
only for the occupation of nurse, for which it has an established track
record of issuing certificates, and not for the occupation of
occupational therapy. Since CGFNS does not have an established track
record of issuing certificates for occupational therapists at this
time, it will be limited to issuing certificates for occupation of
nursing for the validity period of this interim rule.

    The Service defers consideration of whether CGFNS may be authorized
to issue certificates for other health care occupations, including
occupational therapy, until the promulgation of its forthcoming
proposed rule.

    This interim rule authorizes NBCOT, on a temporary basis, to issue
certificates in accordance with section 343 for the occupation of
occupational therapy. NBCOT is authorized to issue such certificates
solely because of NBCOT's proven track record in issuing certificates
for the position of occupational therapist and the current acceptance
of these certificates by the various state regulatory boards in the
field of occupational therapy.

    Insofar as this interim rule addresses the certification
requirements for aliens seeking to immigrate to the United States, the
Service has determined that it is unnecessary to require that the
certificate issued by CGFNS or NBCOT be valid for a specific period of
time beyond the date of admission or adjustment of status. The Service
may nevertheless consider imposing such a validity period in the
context of promulgating its proposed rule.

English Language Requirement--Sec. 212.15(g)

    Pursuant to section 343 of IIRIRA, HHS, in consultation with the
Secretary of Education, is required to establish a level of competence
in oral and written English which is appropriate for the 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.

    The statute vests the Secretary of HHS with the ``sole discretion''
to determine the standardized tests and appropriate minimum scores
required by section 343 of IIRIRA.

    The HHS has identified two testing services which conduct a
nationally recognized, commercially available, standardized assessment
as contemplated in the statute. The two testing services are the
Educational Testing Service (ETAS) and the Michigan English Language
Assessment Battery (MELAB). The new regulation at Sec. 212.15(g) lists
the tests and appropriate scores as determined by HHS for each
occupation.

    In developing the English language test scores, HHS consulted with
the DoE and appropriate health care professional organizations. The HHS
also examined a study sponsored in part by NBCOT entitled ``Standards
for Examinations Assessing English as a Second Language'' in arriving
at these scores. The scores reflect the current industry requirements
for the occupations.

    Under this interim regulation, an organization approved to issue
certificates may use either of the above-named testing services. It
should be noted, however, that HHS has

[[Page 55010]]

determined that occupational therapists should only take the test
administered by ETS. The HHS has advised the Service that it made this
determination based on the fact that all 50 states have accepted the
NBCOT requirements which list the ETS as the only acceptable
examination.

    In addition, organizations authorized to issued certifications are
encouraged to develop a test specifically designed to measure English
language skills and seek HHS approval of the test. While HHS has
identified MELAB and ETS for purposes of this interim rule, other
testing services may submit information about their testing services to
the Service so that HHS and the DOE could review whether the testing
service should be included in the final rule.

    HHS has advised that graduates of health professional programs in
Australia, Canada (except Quebec), Ireland, New Zealand, the United
Kingdom, and the United States are exempt from the English language
requirements of section 343 of IIRIRA for the duration of the interim
rule. The HHS has determined that, for purposes of this rule, aliens
who have graduated from these programs have competency in oral and
written English because the level of English that they would need to
graduate from these programs is deemed equivalent to the level that
would be demonstrated by achieving the minimum passing score on the
test described above.

Presentation of the Certificate--Sec. 212.15(d) and Sec. 245.14

    Section 343 of IIRIRA is codified in section 212(a) of the Act as a
new ground of inadmissibility. In general, grounds listed in section
212(a) are bars to admission to the United states which must be
overcome when an alien applies for admission. This interim rule
provides that the certificate must be presented to a consular officer
at the time that the alien applies for an immigrant visa and to the
Service at the time of admission or adjustment of status. The
certificate must be valid at the time the alien applies for an
immigrant visa at a consular post abroad and seeks admission or
adjustment of status to that of a permanent resident.

    The Service and the DOS will consider, in the context of the
proposed rulemaking, whether it would be more efficient to review the
certificate as part of the review of the alien's qualifications for
classification at the time that a Form I-140 is adjudicated by the
Service. In this regard, it should be noted that such a filing
procedure has long been used with respect to labor certifications under
section 212(a)(5)(A) of the Act.

Good Cause Exception

    This interim rule is effective 60 days from the date of publication
in the Federal Register. The Service invites post-promulgation comments
and will address any such comments in a final rule. For the following
reasons, the Service finds that good cause exists for adopting this
rule without the prior notice and comment period ordinarily required by
5 U.S.C. 553. Although section 343 went into effect on September 30,
1996, due to the complexities of the requirements of section 343, and
the need to coordinate the interests and concerns of a great number of
Federal agencies, the health care sector, and members of the affected
public, the Service is still in the process of developing a proposed
rule in order to solicit comment from the public. A continued delay in
the implementation of this provision, however, could have a negative
effect on the availability of health care in this country, particularly
in medically under-served areas for nursing and occupational therapy,
and will create a further backlog with respect to pending applications
filed by aliens seeking to immigrate to perform labor in a health care
occupation.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in
accordance with 5 U.S.C. 605(b), has reviewed this regulation and, by
approving it, certifies that the rule will not have a significant
economic impact on a substantial number of small entities. This rule
has been drafted in a way to minimize the economic impact that it has
on small business while meeting its intended objective. The health care
workers who will be issued certificates are not considered small
entities as the term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the
small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget (OMB) for review.

Executive Order 12612

    The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of E.O. 12988.

Paperwork Reduction Act of 1995

    The information required on the certificate for health care workers
showing that the alien possesses proficiency in the skills that affect
the provisions of health care services in the United State (as provided
in Sec. 212.15(f)) is considered an information collection. Since a
delay in issuing this interim rule could create a further backlog with
respect to pending applications filed by aliens seeking to immigrate to
perform labor in a health care occupation, the INS is using emergency
review procedures, for review and clearance by the Office of Management
and Budget (OMB) in accordance with the Paperwork Reduction Act (PRA)
of 1995.

    The OMB approval has been requested by November 13, 1998. If
granted, the emergency approval is only valid for 180 days. Comments
concerning the information collection should be directed to: Office of
Information and Regulatory Affairs

[[Page 55011]]

(OMB), OMB Desk Officer for the Immigration and Naturalization Service,
Office of Management and Budget, Room 10235, Washington, DC 20503.

    During the first 60 days of this same period a regular review of
this information will also be undertaken. Written comments are
encouraged and will be accepted until December 14, 1998. Your comments
should address one or more of the following points:

    (1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;

    (2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to
be collected; and

    (4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.

    The Service, in calculating the overall burden this requirement
will place upon the public, estimates that approximately 7,000
certificates will be issued annually. The Service also estimates that
it will take the testing entity approximately 2 hours to comply with
the requirements. This amounts to 14,000 total burden hours.

    Organizations and individuals interested in submitting comments
regarding this burden estimate or any aspect of these information
collection requirements, including suggestions for reducing the burden,
should direct them to: Immigration and Naturalization Service,
Director, Policy Directives and Instructions Branch (HQPDI), 425 I
Street NW., Room 5307, Washington, DC 20536.

List of Subjects

8 CFR Part 212

    Administrative practice and procedures, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;

ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.

    2. Section 212.15 is added to read as follows:

Sec. 212.15  Certificates for foreign health care workers.

    (a) Inadmissible aliens. With the exception of the aliens described
in paragraph (b) of this section, any alien coming to the United States
for the primary purpose of performing labor in a health care occupation
listed in paragraph (c) of this section is inadmissible to the United
States unless the alien presents a certificate as described in
paragraph (f) of this section.

    (b) Inapplicability of the ground of inadmissibility. The following
aliens are not subject to this ground of inadmissibility:

    (1) Aliens seeking admission to the United States to perform
services in a non-clinical health care occupation. A non-clinical
health-care occupation is one where the alien is not required to
perform direct or indirect patient care. Occupations which are
considered to be non-clinical include, but are not limited to, medical
teachers, medical researchers, managers of health care facilities, and
medical consultants to the insurance industry;

    (2) The spouse and dependent children of any immigrant alien who is
seeking to immigrate in order to accompany or follow to join the
principal alien; and

    (3) Any alien applying for adjustment of status to that of a
permanent resident under any provision of law other than an alien who
is seeking to immigrate on the basis of an employment-based immigrant
visa petition which was filed for the purpose of obtaining the alien's
services in a health care occupation described in paragraph (c) of this
section.

    (c) Occupations affected by this provision. With the exception of
the aliens described in paragraph (b) of this section, any alien
seeking admission to the United States to perform labor in one of the
following health care occupations, regardless of where he or she
received his or her education or training, is subject to this
provision:

    (1) Licensed Practical Nurses, Licensed Vocational Nurses, and
Registered Nurses.

    (2) Occupational Therapists.

    (d) Presentation of the certificate. An alien described in
paragraph (a) of this section who is applying for admission as an
immigrant seeking to perform labor in a health care occupation as
described in this section must present a certificate to a consular
officer at the time of visa issuance and to the Service at the time of
admission or adjustment of status. The certificate must be valid at the
time of visa issuance and admission at a port-of-entry, or, if
applicable, at the time of adjustment of status.

    (e) Organizations approved by the Service to issue certificates for
health care workers. (1) The Commission on Graduates of Foreign Nursing
Schools is authorized to issue certificates under section 343 for the
occupation of nurse. (2) The National Board for Certification in
Occupational Therapy is authorized by the Service to issue certificates
under section 343 for the occupation of occupational therapist.

    (f) Contents of the certificate. A certificate must contain the
following information:

    (1) The name and address of the certifying organization;

    (2) A point of contact where the organization may be contacted in
order to verify the validity of the certificate;

    (3) The date of the certificate was issued;

    (4) The occupation for which the certificate was issued;

    (5) The alien's name, and date and place of birth;

    (6) Verification that the alien's education, training, license, and
experience are comparable with that required for an American health
care worker of the same type;

    (7) Verification that the alien's education, training, license, and
experience are authentic and, in the case of a license, unencumbered;

    (8) Verification that the alien's education, training, license, and
experience meet all applicable statutory and regulatory requirements
for admission into the United States as an immigrant under section
203(b) of the Act. This verification is not binding on the Service; and

    (9) Verification either that the alien has passed a test predicting
success on the occupation's licensing or certification examination,
provided such a test is recognized by a majority of States licensing
the occupation for which the certificate is issued, or that the alien
has passed the occupation's licensing or certification examination.

    (g) English testing requirement. (1) With the exception of those
aliens described in paragraph (g)(2) of this

[[Page 55012]]

section, every alien must meet certain English language requirements in
order to obtain a certificate. The Secretary of Health and Human
Services has determined that an alien must have a passing score on one
of the two tests listed in paragraph (g)(3) of this section before he
or she can be granted a certificate.

    (2) Aliens exempt form the English language requirement. Aliens who
have graduated from a college, university, or professional training
school located in Australia, Canada (except Quebec), Ireland, New
Zealand, the United Kingdom, and the United States are exempt from the
English language requirement.

    (3) Approved testing services.

    (i) Michigan English Language Assessment Battery (MELAB).
 
   (ii) Test of English as a Foreign Language, Educational Testing
Service (ETS).

    (4) Passing scores for various occupations. (i) Occupational
therapists. An alien seeking to perform labor in the United States as
an occupational therapist must obtain the following scores on the
English tests administered by ETS: Test Of English as a Foreign
Language (TOEFL), Paper-Based 560, Computer-Based 220; Test of Written
English (TWE): 4.5; Test of Spoken English (TSE): 50. Certifying
organizations shall not accept the results of the MELAB for the
occupation of occupational therapists. Aliens seeking to obtain a
certificate to work as an occupational therapist must take the test
offered by the ETS. MELAB scores are not acceptable for these
occupations.

    (ii) Registered nurses. An alien coming to the United States to
perform labor as a registered nurse must obtain the following scores to
obtain a certificate: ETS: TOEFL: Paper-Based 540, Computer-Based 207;
TWE: 4.0; TSE: 50; MELAB: Final Score 79; Oral Interview: 3+.

    (iii) Licensed practical nurses and licensed vocational nurses. An
alien coming to the United States to perform labor as a licensed
practical nurse or licensed vocational nurse must have the following
scores to be issued a certificate: ETS: TOEFL: Paper-Based 530,
Computer-Based 197; TWE: 4.0; TSE: 50; MELAB: Final Score 77; Oral
Interview: 3+.

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE

    3. The authority citation for part 245 continues to read as
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.

    4. Section 245.14 is added to read as follows:

Sec. 245.14.  Adjustment of status of certain health care workers.

    An alien applying for adjustment of status to perform labor in a
health care occupation as described in 8 CFR 212.15(c) must present
evidence at the time he or she applies for adjustment of status, and,
if applicable, at the time of the interview on the application, that he
or she has a valid certificate issued by the Commission on Graduates of
Foreign Nursing Schools or the National Board of Certification in
Occupational Therapy.

Dated: October 6, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-27522 Filed 10-13-98; 8:45 am]
BILLING CODE 4410-01-M

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