Interim Procedures for Certain Health Care Workers

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.

-----------------------------------------------------------------------

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, pleaser 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)

Purusant 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 genral, 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