Additional Authorization to Issue Certificates for Foreign Health Care Workers

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS 1979-99]

RIN 1115-AF43

Additional Authorization to Issue Certificates for Foreign Health

Care Workers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The interim rule amends the regulations of the Immigration and

Naturalization Service (Service) to grant, on a temporary basis,

authorization to the Commission on Graduates of Foreign Nursing Schools

(CGFNS) to issue certificates to foreign health care workers in the

occupations of occupational therapy and physical therapy. This rule

also grants the Foreign Credentialing Commission on Physical Therapy

(FCCPT) the authority to issue certificates to foreign-trained physical

therapists. The rule is written in response to formal requests by CGFNS

and FCCPT to obtain permission to issue certificates to foreign-trained

workers coming to the United States in the occupations of occupational

therapy and physical therapy on a permanent basis. This rule ensures

that foreign-trained occupational therapists and physical therapists

have the same training, education, and licensure as similarly employed

United States workers.

[[Page 23175]]

This interim rule applies only to aliens seeking admission as

immigrants to perform services in these two health care occupations.

Aliens seeking temporary admission to the United States as nonimmigrant

aliens to perform services in these or other health care occupations

are not covered by this interim rule. The Service and the Department of

State temporarily have waived the certification requirement of section

343 of the Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) for aliens coming to the United States as nonimmigrant health

care workers. This policy will continue until a final rule is published

which fully implements section 343.

DATES: Effective date: This interim rule is effective June 29, 1999.

Comment date: Written comments must be submitted on or before June

29, 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, please reference the INS No. 1979-99

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) 514-3228.

SUPPLEMENTARY INFORMATION:

What is Section 343 of IIRIRA?

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 new ground of inadmissibility at

section 212(a)(5)(C) of the Immigration and Nationality Act (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 of adjustment of status, the Attorney General,

a certificate from the CGFNS, or an equivalent independent

credentialing organization approved by the Attorney General in

consultation with the Secretary of Health and Human Services (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, 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 applicant's 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.

On October 14, 1998, the Service published an interim rule in the

Federal Register at 63 FR 55007 that implemented certain portions of

section 343 of IIRIRA as it related to occupational therapists and

nurses coming to the United States on a permanent basis. For purposes

of this discussion, the interim rule published on October 14, 1998, is

referenced as ``the first interim rule.''

What provisions were contained in the Service's interim rule

published on October 14, 1998?

In the first interim rule, which became effective on December 14,

1998, the Service granted authorization to CGFNS and the National Board

for Certification in Occupational Therapy (NBCOT) to issue certificates

to foreign-trained health care workers in the fields of nursing and

occupational therapy, respectively. the rule, however, limited the

authority of CGFNS and the NBCOT to the issuance of certificates to

aliens coming permanently to the United States. In addition, the

authority granted to CGFNS and NBCOT to issue certificates was granted

on a temporary basis until the Service published a final rule

implementing all the provisions of section 343 of IIRIRA.

What criteria did the Service use in the first interim rule to grant

authorization to CGFNS and NBCOT to issue certificates?

The first interim rule provided that an organization must meet two

criteria in order to be granted authorization to issue certificates

pursuant to section 343 of IIRIRA. First, the organization had to

establish that there was a sustained level of demand for foreign-

trained workers in the occupation and, second, the organization has to

show that it had an established track record in providing credentialing

services in the occupation.

For purposes of the first interim rule, the Service defined the

term ``sustained level of demand'' as 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 first interim rule defined the term ``organization with an

established track record'' as an organization that has a record of

issuing actual certificates, or documents similar to a certificate,

that are generally accepted by the state regulatory bodies as

certifying that an individual has met certain minimal qualifications.

The rule also provided that, during the period of time that the

first interim rule was in effect, the Service would entertain any

requests to issue certificates from an organization that could

demonstrate that it met the two criteria.

What is the purpose of this interim rule?

The purpose of this interim rule is to provide notice that the

Service has granted CGFNS the authority to issue certificates pursuant

to section 343 of IIRIRA, on a temporary basis, to foreign-trained

health care workers coming to the United States as immigrants or

applicants for adjustment of status to work in the occupations of

occupational therapist and physical therapist. This rule also provides

notice that the Service has granted FCCPT the authority to issue

certificates pursuant to section 343 of IIRIRA, on a temporary basis,

to foreign-trained health care workers coming to the United States as

immigrants, or applicants for adjustment of status to work in the

occupation of physical therapist.

This rule does not give authorization to CGFNS or FCCPT to issue

certificates to aliens seeking temporary admission to the United States

as nonimmigrant aliens to perform services in these or other health

care occupations. Aliens' applications for admission as nonimmigrants

will be processed pursuant to the Service's temporary policies that

were described in the preamble to the Service's first interim rule. The

authorization provided for in this interim rule remains in effect until

the publication of a final rule.

[[Page 23176]]

This interim rule also lists the passing scores for the English

language tests for the occupation of physical therapist.

Have CGFNS and FCCPT met the criteria to obtain authorization

described in the first interim rule?

Pursuant to the criteria described in the first interim rule, CGFNS

and FCCPT have made formal applications to the Service seeking

authorization to issue certificates to foreign health care workers.

CGFNS has applied for authorization to issue certificates to foreign-

trained health care workers in the occupations of occupational

therapist and physical therapist. FCCPT has applied for authorization

to issue certificates in the occupation of physical therapist. The

applications were supported by evidence addressing the two criteria

described in the first interim rule.

In order to secure more current and detailed information relating

to issues in the field of health care, the Service sought the opinion

of the Secretary of HHS as to whether CGFNS and FCCPT met the two

criteria described in the first interim rule. Based on the Secretary's

opinion and the evidence submitted, the Service finds CGFNS has met the

two criteria discussed in the rule for the occupations of occupational

therapist and physical therapist. Likewise, FCCPT has met the two

criteria for the occupation of physical therapist.

Does CGFNS have a proven track record?

The Service finds that CGFNS has an established track record in

issuing certificates because it has experience in administering the

examination that predicted success of foreign-trained educated nurses

under the previous H-1A visa category. In addition, CGFNS has

experience beyond nursing with regard to educational comparability and

credentials evaluation. CGFNS, through their credential evaluation

service, has evaluated foreign credentials, including educational

degrees and foreign licenses, for psychiatric technicians, physician

assistants, emergency medical technicians, and other occupations.

The CGFNS has an extensive database covering health-related

academic programs in foreign countries, much of which is applicable

beyond nursing. Finally, with the establishment of ``Professional

Standards Committees,'' CGFNS has developed certification standards

that may be used to assess comparability for the occupation of physical

therapy and occupational therapy.

Does FCCPT have a proven track record?

The FCCPT is the credentialing organization of the Federation of

State Boards of Physical Therapy (the Federation). The membership of

the Federation, established 1986, includes all of the state regulatory

bodies responsible for the examination and licensure of physical

therapist in all 50 states. The Federation develops and recommends

educational, English language proficiency, and other standards adopted

by state regulatory agencies.

The FCCPT currently performs credential evaluations for individuals

entering on temporary visas that are accepted by 17 states. As part of

the evaluation, the organization reviews English language proficiency,

licensure status and proof that a current license is in good standing

with the licensure authorities, and, finally, equivalency of education.

Based on the credentials evaluation provided by FCCPT, these states

will issue temporary licenses pending the taking of the National

Physical Therapy Examination.

Further, the Federation developed the Course Work Evaluation Tool

to establish educational standards for credentialing foreign-educated

physical therapists that are currently used by 19 states. The

Federation worked with the NBCOT to jointly develop common English

language proficiency standards, including the identification of

necessary examinations and passing scores for English language

proficiency examinations administered by the Educational Testing

Service. HHS adopted these standards in its recommendation to the

Attorney General regarding appropriate English language proficiency

tests scores for physical therapists and occupational therapists as set

forth in the first interim rule.

Is There a Sustained Level of Demand for Physical Therapists?

According to data compiled by the Department of Labor, the number

of job openings for physical therapists continues to remain high. The

second highest number of job openings certified under the H-1B program

is for the occupation of therapist. Physical therapists, in turn,

comprise the largest component of this occupation. Based on these

findings, the Service has determined that the second criteria relating

to the demand of foreign-trained workers for the occupation of physical

therapists has been met.

The Service previously determined in the first interim rule that

there was a sustained level of demand in the field of occupational

therapy for foreign-trained health care workers.

Based on the foregoing, it is the decision of the Service that

CGFNS should be granted authorization to issue certificates to foreign

health care workers in the fields of occupational therapist and

physical therapist subject to the terms and conditions of the first

interim rule. Further, the FCCPT, as the credentialing unit associated

with the Federation, is granted the authority to issue certificates to

foreign health care workers in the field of physical therapist.

What are the Passing English Test Scores for Physical Therapists?

The HHS has determined that physical therapists must obtain the

following scores on the English tests administered by the Educational

Testing Service (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.

HHS has advised that the Michigan English Language Assessment

Battery (MELAB) is not an appropriate test for physical therapists or

occupational therapists. HHS has advised that MELAB scores are not

acceptable to the licensing and accrediting organizations involved with

these two occupations. In addition, the exemptions for the English

language tests described in Sec. 212.15(g)(2) apply to the occupation

of physical therapy.

Does this Interim Rule Alter any of the Service's Policies With

Respect to the Admission of Nonimmigrant Health Care Workers?

No. This rule merely grants authorization to CGFNS and the FCCPT to

issue certificates to foreign-trained health care workers seeking

admission as immigrants or adjustment of status in two additional

occupations. It does not alter any of the Service's policies with

respect to the admission of nonimmigrant aliens coming to perform

services in health care occupations that were described in the first

interim rule.

How ddoes This Rule Amend the Existing Regulation?

This interim rule amends the regulation at Sec. 212.15(c) by adding

the occupation of physical therapist to the list of occupations.

This interim rule also amends the regulation at Sec. 212.15(e) to

add the occupations of physical therapist and occupational therapist to

the list of occupations for which CGFNS can issue certificates. This

rule also adds FCCPT

[[Page 23177]]

as an organization authorized to issue certificates in the occupation

of physical therapist.

Finally, this regulation amends the regulation at Sec. 212.15(g) to

list the passing English scores for the occupation of physical

therapist.

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 proposed rule or the resulting

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 more comprehensive proposed rule

to implement section 343 in order to solicit comment from the public. A

continued delay in the implementation of this provision in the

particular manner set out in this interim rule, 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.

List of Subjects 8 CFR Part 212

Administrative practice and procedures, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

Accordingly, part 212 of 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 amended by:

a. Revising paragraph (c) introductory text;

b. Adding a new paragraph (c)(3);

c. Revising paragraph (e); and by

d. Revising paragraph (g)(4)(i), to read as follows:

Sec. 212.15 Certificates for foreign health care workers.

* * * * *

(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 as an immigrant or any alien

applying for adjustment of status to a permanent resident 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:

* * * * *

(3) Physical Therapists.

* * * * *

(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 occupations

of nurse, physical therapist, and occupational therapist.

(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.

(3) The Foreign Credentialing Commission on Physical Therapy is

authorized by the Service to issue certificates under section 343 for

the occupation of physical therapist.

* * * * *

(g) * * *

(4) Passing scores for various occupations. (i) Occupational and

physical therapists. An alien seeking to perform labor in the United

States as an occupational therapist or physical 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 therapist or physical therapist.

Aliens seeking to obtain a certificate to work as an occupational or

physical therapist must take the test

[[Page 23178]]

offered by the ETS. The MELAB scores are not acceptable for these

occupations.

* * * * *

Dated: April 27, 1999.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 99-10819 Filed 4-27-99; 4:39 pm]

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