December 7, 2002
Director, Regulations and Forms Services Division
Immigration and Naturalization Service
425 I Street NW
Room 4034
Washington, D.C. 20536
RE: Department of Justice/Immigration and Naturalization Service Proposed
Rule on Certificates for Certain Health Care Workers
Dear INS Director:
In regard to the above referenced matter, please accept the following comments
from the law firm of Hammond Law Group, LLC based in Cincinnati, Ohio. Hammond
Law Group, LLC represents healthcare facilities throughout the U.S. in
sponsoring foreign-born healthcare workers on both a temporary basis and a
permanent basis.
It is unfortunate that the Immigration and Naturalization Service is
considering issuing regulations that create further obstacles for foreign-born
healthcare workers. It is common knowledge that the U.S. is in the midst of a
severe healthcare shortage that the Department of Labor expects to continue
until at least the year 2010. During a time when we need Congress, the
Department of Labor and the Department of Justice to work together to make the
immigration process for foreign-born healthcare professionals conducive to the
U.S. healthcare needs, the Immigration and Naturalization has, through these
proposed regulations, created requirements for certifications that will delay
the immigration process.
I. Scope of the Certification Requirements
The proposed regulations apply to both non-immigrants and immigrants. The
regulations seek to require all healthcare workers, whether coming to the U.S.
on a temporary visa or a permanent visa, to obtain a VisaScreen. This is
problematic for several reasons. First, a temporary visa is intended to be a
relatively quick visa option. However, if a person must first obtain a
VisaScreen before obtaining a temporary visa that will create delays of
several months since ICHP generally takes several months to issue a
VisaScreen. Second, CGFNS (through its VisaScreen agency known as ICHP) has
routinely been slow in issuing VisaScreens with the current demand of issuing
VisaScreens to foreign nationals seeking immigrant visas. If the regulations
require non-immigrants to obtain VisaScreens, the delays will certainly
increase. Furthermore, since all the non-immigrant healthcare workers who are
currently in the U.S. will need to obtain VisaScreens before applying for
their extension of status or upon returning to the U.S. from a trip, the
organization will be inundated with thousands of applications over the next
few years. Although additional organizations may receive authorization to
issue certifications, there will undoubtedly be a time delay before such
organizations are established, approved and operating efficiently.
If the INS makes the VisaScreen applicable to healthcare professionals in the
U.S. on a temporary status there ought to be, at the very least, a
grace-period for those that are already here in the U.S. This can be done much
the same way as the current INS Regulations allow some nonimmigrant workers to
continue working for up to 240 days while an extension is pending, as per 8
CFR 274a.12(b)(19). Furthermore, the INS should impose a time limit for
organizations to process VisaScreens and should strictly enforce the time
limit.
The proposed regulations also require foreign-born healthcare professionals
who are educated, trained and licensed in the U.S. to obtain a VisaScreen.
This requirement belies logic. The purpose of the VisaScreen is threefold: (1)
show that the person has passed either the CGFNS exam or the NCLEX exam; (2)
show that the education is equivalent to a U.S.-based education; and (3) show
that the foreign national is proficient in the English language. These
requirements are implicitly met if the person has in fact been educated and
licensed in the U.S. It is unlikely that a foreign-born person would have
earned a U.S. degree unless he/she was proficient in English. A foreign born
person would not have earned the state license if she had not already passed
the NCLEX exam. A foreign-born person’s U.S. education is obviously equivalent
to a U.S. education. Therefore, the requirement of a VisaScreen for
foreign-born healthcare professionals who have already received their
education and licensure in the U.S. is simply redundant.
II. English language requirements for Certification
We appreciate the efforts of the INS to approve two more organizations, namely
TOEIC and IELTS, to administer the English language proficiency exams. The
practice of authorizing additional agencies creates healthy competition among
the organizations and often creates better service delivery.
III. Criteria for organizations seeking to issue certifications
We appreciate the efforts of the INS to encourage other organizations to seek
approval to issue certifications. We believe this will create an incentive for
current organizations to process applications more quickly. With regard to the
procedure for organizational approval we recommend the following: (1) the INS
should impose upon itself processing time guidelines so that we can be
confident that the INS will process the applications in a timely manner; (2)
the INS should maintain on its website a list of organizations that are
approved to issue certifications; (3) the INS should require the organization
to submit a plan for the timely processing of applications and the INS should
review whether authorized credentialing organizations actually issue
certifications in a timely manner; and (4) the INS should review authorized
organizations based upon credible evidence of a violation rather than random
reviews/audits. Since the INS has a limited amount of time and resources, the
INS should review organizations only if there is credible evidence from any
source concerning the organization.
The regulations propose to add a fee and a form (Form I-905, Application for
Authorization to Issue Certification for Health Care Workers). Since the form
has not yet been created, we suggest that the INS not issue any final
regulations requiring certifications until the INS first provides notice and a
comment period for the new form. Otherwise, the INS may implement a system
whereby all health care workers need a certification at a time when there is
not currently enough credentialing organizations to meet the demand.
In sum, many of the provisions of the proposed regulations impair the ability
of healthcare facilities to sponsor foreign-born healthcare workers and could
have a deadly affect on the provision of healthcare in the U.S.
FROM HAMMOND LAW GROUP, LLC
Michael F. Hammond, Esq.
Sherry L. Neal, Esq.
Christopher T. Musillo, Esq.
Hammond Law Group, LLC
3311 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202