Posts Tagged ‘Nurses’

Health Care Worker Certificate Requirement Presents Timing Issues

Wednesday, May 29th, 2019 by W. Scott Railton

Certain health care workers are required to have health care worker certificates in order to be admitted.  (Authority:  INA §212(a)(5)(c))  The certificate, often referred to by the trademarked name VisaScreen®, serves as an evaluation in regards to education, training, license, experience, and English proficiency.  The application process can take months unless expedited, and involves expense.  The certificate therefore presents a key timing issue for immigration purposes.

The occupations requiring certificates include:

  • Nurses (Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses )
  • Physical Therapists
  • Occupational Therapists
  • Speech-language Pathologists and Audiologists
  • Medical Technologists (also known as Clinical Laboratory Scientists)
  • Medical Technicians (also known as Clinical Laboratory Technicians)
  • Physician Assistants

Even if the health care worker trained in the U.S., they still must acquire the certificate. Also, NAFTA TN workers are required to obtain the certificate, as well as other nonimmigrant and immigrant applicants who are arriving for health care purposes. The certificate is not required, though, if a person is applying for permanent residence based on another purpose, such as an immediate relative spouse.

The Commission on Graduates of Foreign Nursing Schools (www.cgfns.org) is authorized to issue certifications to all 7 health care occupations.   Additionally, the National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certifications for occupational therapists, and the Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certifications for physical therapists.

The health care certificate serves as verification of education equivalency, licensing eligibility, and requisite English language skills. The Screen includes an English language proficiency examination. For registered nurses, the health care certificate also includes verification that the RN has passed either CGFNS’s qualifying exam, NCLEX-RN, or for select years and provinces its predecessor, the State Board Test Pool Examination.

For immigrant petitions, credentials will be reviewed by USCIS at the I-140 stage, but the actual certification is not required until the adjustment or consular processing stage. For nonimmigrants, the certificate must be available at time of visa issuance and admission.

There is an expedited procedure.  There are also certain exceptions, relating to English language proficiency (e.g. graduate of certain schools in Canada, Australia, Ireland, U.K., or U.S., as well as educational comparability in certain professions).

Certifications are issued for only five years, and must be used for admission, extension or change of status, or adjustment, within that period. See 8 CFR 212.15(n)(4). If not used, a new certification is required subsequent to expiration. If used, but now expired, a limited renewal must be obtained, to verify no adverse actions have occurred, and to confirm anew English competency. See 8 CFR 212.15(k)(4)(viii).

It is not uncommon for U.S. Customs and Border Protection to deny admission to a health care worker for lack of a certificate, or because a certificate is now expired. This can be a difficult situation, for employer and employee, which may be avoided through attention to the requirement and timing. Another issue that comes up from time to time is a denial of entry for certain radiation related professionals, who do not require the certificate, but are asked for one just the same. Training issues like this have to be handled on a case by case basis.

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Administrative Actions Making Immigration Harder

Wednesday, April 5th, 2017 by W. Scott Railton

I am often asked whether the Trump Administration is impacting immigration law. The headline news concerns travel bans from certain countries and refugees, and this indeed is impacting noncitizens. I routinely hear from professionals who are concerned about their eligibility for benefits under the new administration. Their anxiety is real. Human Resource Departments feel the stress too, as key employees send emails and phone busy staff, with palpable concern. The undocumented communities are very anxious about police coordinating with ICE, as the Administration makes overtures towards “sanctuary” cities and enforcement policies.

Here are a few things that have occurred recently that may not be getting as much press coverage:
1. USCIS recently issued a memo revoking old guidance on computer programmers, and encouraging adjudicators to take a longer look at whether computer programmer positions are actually specialty occupations. Information technology professionals cover about half of the annual quota for H-1Bs professionals.

2. Recently, some ports of entry began to say that Advanced Nurse Practitioners do not qualify for TN status as registered nurses, despite historic practice. This means there is increased risk in traveling abroad for RNs who are ARNPs, as well as with renewals. It does not appear this is a universal interpretation.

3. Premium processing for H-1Bs–which guarantees 15 day adjudication for the price of $1225- is suspended as of April 3rd. USCIS has a considerable backlog on H-1Bs that they need to manage, but there is no confidence that they’ll be able to do this without this program, which, by the way, generates substantial revenues. In particular, physicians who complete their residencies and take on new fellowships on July 1st are particularly concerned.

4. Searches of electronic media at the border have gone up considerably. The Guardian referred to this as a digital strip search. CBP asks for a password, and then takes a person’s phone or computer to another room, and comes back a while later, having scanned photos, emails, and other confidential information. Often, they offer no reason for the search—they just claim the authority and proceed.

5. The border is also asking more frequently whether a person has ever smoked or used marijuana. If the person responds yes, during a sworn statement, the agency is then finding the person inadmissible and requiring them to get a waiver. Waivers cost $585 for Canadians, and take months to process.

6. The Department of State has issued cables to its consular officers requiring them to “improve visa applicant vetting” and to implement “the concepts undergirding the Presidential memorandum.” Also, a hiring freeze was ordered, which will eventually further backlog appointments.

7. Contractors are lining up to build the wall.

8. ICE is deporting persons who have had deferred action and persons who are showing up for USCIS appointments. These have included family members, DREAMers, and other non-criminals.

Make no mistake—the Administration is not just focused on illegal immigration. The Administration is focused on limiting all immigration, and is implementing immigration procedures which effectively do this, even before pursuing a legislative agenda. These measures add complexity and require added time for all immigration processes.

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Posted in General, Scott Railton |

USCIS Issues Guidance on H-1B Petitions for Nursing Occupations

Friday, July 25th, 2014 by W. Scott Railton

USCIS issued guidance recently for determining whether or not a nursing position meets the definition of an “specialty occupation.”  Specialty occupations are typically eligible for H-1B and E-3 professional work visas. The guidance advises that with the increase of nursing specialization, adjudicators need to take a careful case-by-case approach to analyzing whether an individual position is a specialty occupation.  This is good news in light of the challenges hospitals and medical facilities have faced in obtaining H-1Bs for key nurse personnel.

The memo begins by clearly stating that the standard Registered Nurse position does not qualify for H-1B classification. The memo then notes that there is are three typical paths to obtaining an RN: a bachelor’s of science degree (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program. The memo also notes that the increasingly, nurses are obtaining the Bachelor’s degree first, and that the private sector favors more highly educated nurses.

The memo lists a number of specializations in nursing: addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, peri-operative, rehabilitation, and other nurses. Depending on the facts of each case, some of these specializations may qualify as specialty occupations. The memo also offers a “non-exhaustive” list of Advanced Practice Registered Nurse occupations that may be specialty occupations: Certified Nurse-Midwife (CNM), Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

The memo advises adjudicators and stakeholders that the the appropriate evidentiary standard for determining whether a position is a specialty occupation is the “preponderance” standard, which means whether it is more likely than not. To evaluate the cases, adjudicators are instructed to weigh such factors in the record as (1) the nature of the petitioner’s business; (2) industry practices; (3) a detailed description of the duties to be performed within the petitioner’s business operations; (4) advanced certification requirements; (5) ANCC Magnet Recognized status; (6) clinical experience requirements; (7) training in the specialty requirements; and (8) wage rate relative to others within the occupation.

Time will tell how this plays out, but this memo opens the door for employers to pursue H-1Bs more confidently in cases where Registered Nurses are particularly specialized.

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