The INS has issued a field memorandum providing further guidance on processing health care worker cases in the absence of a regulation required by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”).
Section 343 of IIRAIRA creates a new exclusion ground for “any alien who seeks to enter the United States for the purpose of performing labor as a health-care worker, other than a physician.” The only way to enter is to have a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or a certificate from an equivalent credentialing organization approved by the INS. The INS has not determined which specific occupations fall under the “health-care worker” label. The agency has also not determined which entities will be designated credentialing organizations.
According the INS memo, INS Service Centers are required to continue adjudicating I-140 petitions for health care workers. Workers with approved I-140s can then apply for adjustment of status, employment authorizations and travel documents. Nurses who obtain CGFNS certificates can complete processing. If the applicant does not have a CGFNS certificate, the application will be held in abeyance until a certificate is obtained. For other health-care workers, applications for adjustment will be held in abeyance until the INS issues a regulation. Though the INS has not officially defined “health care worker”, the agency is using IIRAIRA’s legislative history in order to determine to include physical therapists, occupational therapists, speech language pathologists, medical technologists and technicians, physician assistants and other occupations.
For nonimmigrants, the INS and the Department of State have agreed on a blanket waiver of inadmissibility under the new law for helath care orkers lacking the CGFNS certificate or other certificate required under IIRAIRA. The waiver will remain in place until the INS issues the required regulation. Waived in applicants will be given a single-entry I-94 for a six month validity period. Spouses and children will only be granted a length of stay as long as the principal applicant.
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