TO SUBMIT HEALTH CARE WORKER CERTIFICATION
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:
Practical Nurses, Licensed Vocational Nurses, and Registered Nurses;
Speech Language Pathologists
Medical Technologists (Clinical Laboratory Scientists);
Physicians Assistants; and
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.
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 .
Immigrant Health Care Workers:
For Those Outside The
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
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.
For Those In The
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 –
failed to maintain, continuously, a lawful status;
engaged in unauthorized employment; or
otherwise violated the terms and conditions of the alien’s
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.
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
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
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.