WHEN TO SUBMIT HEALTH CARE WORKER CERTIFICATION

WHEN TO SUBMIT HEALTH CARE WORKER CERTIFICATION

By: Roman P. Mosqueda, Esq.

As of September 23, 2003, for permanent employment (immigrant) workers, and as of July 26, 2004, for temporary employment (nonimmigrant) workers, aliens seeking admission to the United States as health care workers are required to present a certification that he or she has met the minimum requirements for training, licensure and English proficiency.

The seven (7) health care occupations requiring such certification issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent credentialing organization are:

1. Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses;

2. Occupational Therapists;

3. Physical Therapists;

4. Speech Language Pathologists and Audiologists;

5. Medical Technologists (Clinical Laboratory Scientists);

6. Physicians Assistants; and

7. Medical Technicians (Clinical Laboratory Technicians).

The health care worker certification (VisaScreen Certificate issued by CGFNS/ICHP) is good for five (5) years and needs to be renewed before the 5-year period is up.

The regulations require that the certification should be presented to the Consular Officer of the Department of State at the time of interview for immigrant visa issuance, or to the Department of Homeland Security (United States Citizenship and Immigration Services) at the time of admission, change of status, or request for extension of stay by a nonimmigrant health care worker.

For Nonimmigrant Health Care Workers (H-1C, H-1B, J, O, or TN):

The final regulation of the Department of Homeland Security (DHS) requiring certification of foreign health care workers was published on July 25, 2003, and became effective on September 23, 2003.

But the DHS waived the ground of inadmissibility for nonimmigrant health care workers without the certification, for a period of one year after publication of its final rule.

So, starting July 26, 2004, an alien nonimmigrant seeking admission to the United States, change of status, or extension of stay to perform labor as a health care worker must provide evidence of health care worker certification.

For an nonimmigrant health care worker, (usually H-1C, H-1B, J, O, or TN applicant), the health care worker certification will be required at the time of filing of the application for extension of stay or change of status with the United States Citizenship and Immigration Services.

And in the case of an alien applying for a nonimmigrant health care worker visa abroad, the health care worker certification will be required at the time of filing of the application for nonimmigrant health care worker visa with the appropriate U.S. Consular Post .

For Immigrant Health Care Workers:

A. For Those Outside The

United States:

The employer’s Form I-140, Immigrant Petition For Alien Worker, can be filed with the appropriate Service Center (California Service Center for California-based employers) with supporting documentation, even though the alien health care worker outside of the United States does not have the health care worker certification.

But at the time of application for immigrant visa and interview and issuance thereof, the alien health care worker will be required to present the health care worker certification, for the immigrant’s visa to be issued at the U.S. Consular Post.

B. For Those In The

United States:

An alien health care worker may be eligible to adjust to lawful permanent resident status here in the United States, if he or she has not overstayed, or incurred unlawful presence.

But even if he or she has overstayed or has incurred unlawful presence, Section 245(i) of the Immigration and Nationality Act may allow him or her to adjust here, if he or she is grandfathered by the filing of an application for labor certification or a family petition (I-130) on or before April 30, 2001.

And Section 245(k) of the same Act allows priority workers, professionals with advanced degrees etc., and skilled workers and professionals and other workers, such as health care workers, who are eligible to receive immigrant visas, to adjust status here, if -

“1. the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

2. the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days –

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

Thus, health care workers, such as registered nurses and physical therapists and others are given by Section 245(k) of the Act an extra six-month period from expiration of authorized stay to adjust status in the United States, if their immigrant’s visas are immediately available.

Certification At The Time Of Filing Of Adjustment Application:

If the alien health care worker is adjusting status, all eligibility requirements must be met at the time of filing the application for adjustment of status. See September 22, 2003 Memorandum of William R. Yates, Associate Director for Operations, United States Citizenship and Immigration Services, citing 8 CFR 103.2(b)(12).

If the alien health care worker is in the United States and the employer is filing only Form I-140 petition, then the Service Center or District Director may adjudicate it, even without the health care worker certification.

This would be the case of an alien health care worker here, who can no longer adjust here for overstaying, or has to adjust, if still eligible, before the Immigration Judge because he or she is in removal (formerly called deportation) proceedings.

Concurrent Filing Of I-140 and I-485:

If the alien health care worker is eligible to adjust here, and the I-140 (Immigrant Petition for Alien Worker, $190 filing fee), I-485 (Application to Register Permanent Residence or To Adjust Status, $315 filing fee plus $70 fingerprinting fee) and I-765 (Application for Employment Authorization, $175 filing fee) are concurrently filed, the health care worker certification must be submitted with the filing of the application for adjustment of status (I-485).

Indeed, the September 22, 2003 Yates Memorandum cited above categorically states that: “Therefore, a health care worker in one of the affected occupations must submit evidence of certification at the time the adjustment of status is filed.”

And by regulation effective since July 31, 2002, the Service has authorized concurrent filing of I-140 and I-485 applications for EB1 (priority workers), EB2 (professionals with advanced degrees etc.) and EB3 (skilled workers, professionals etc.) categories, when an immigrant visa is immediately available.

Alien health care workers trained in the United States or in possession of valid state licenses are still required to present the certification or a Section 212(r) certified statement for qualified registered nurses.