Under Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), aliens seeking to enter the US as a health care worker in either non-immigrant or immigrant status (other than physicians) are excludable unless the alien presents documentation to certify adequate credentials. The INS is charged with issuing regulations describing what a certification must contain and how a health care worker can obtain such certification. Approvals of health care worker cases have come to a standstill since the INS has failed to issue any regulations.
Recently, the Commission of Graduates of Foreign Nursing Schools (“CGFNS”) informed the INS and the public that it intended to begin at the end of August. According to CGFNS, it has statutory authority under INA 212(a)(5)(C) to administer healthcare certification examinations irrespective of the absence of implementing INS regulations. Shortly thereafter, the INS released a memorandum to all of its offices stating that it will not accept any certifications issued by CGNS or any equivalent independent credentialing organization prior to the promulgation of INS regulations implementing Section 343 of IIRAIRA. The INS failed to state when it intends to issue regulations. In the mean time, CGNFS has already begun sending out information packets to persons seeking certification. Whether CGFNS is correct in its interpretation may have to be settled by the courts or by INS issuing regulations.
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