Post by wmwong5877 on Dec 13, 2003 8:51:58 GMT 7
Guys the following was taken from shusterman.com/oct03.html#4:
* VisaScreen Policy Reversed - In the October 2003 issue of SHUSTERMAN'S
IMMIGRATION UPDATE, we informed our readers that the CIS had issued a memo
(on
September 22) which would require nurses and other health care workers to
submit a VisaScreen certificate together with their applications for
adjustment
of status. We asked you to write to the CIS and oppose this new policy.
See
shusterman.com/oct03.html#4
We are very pleased to announce that the CIS has informed the American Immigration Lawyers Association (AILA) at a recent liaison meeting that
VisaScreen certificates need NOT be submitted simultaneously with the I-485.
Such certificates will be required, as before, when the CIS adjudicates the I-485.
Health Care Workers: New BCIS Memo Is Wrong Rx for RNs
On September 23, the final BCIS regulations pertaining to certificates for health care workers became effective.
The regulations apply the health care certificate requirement to nonimmigrant nurses, medical technologists and technicians, occupational and physical therapists, physicians' assistants, audiologists and speech language pathologists beginning on July 26, 2004.
For links to the complete text of the regulations and our FAQ, see our August 2003 newsletter at
shusterman.com/aug03.html#3
On September 22, the day before the new regulations became effective, the BCIS issued a memorandum guiding government officers in implementing the rules. Most of this memo is fairly straightforward and non-controversial.
However, Section E of the memo which is entitled "Effect of Final Rule on Immigrants" states as follows:
Immigrant health care workers are currently required to present certification to the Department of State at the time of immigrant visa issuance or to the DHS at the time of adjustment of status. If the alien is adjusting status, all eligibility requirements must be met at the time of filing the application for adjustment of status. 8 C.F.R. 203.2 (b)(12). Therefore, a healthcare worker in one of the affected occupations must submit evidence of certification at the time the adjustment of status is filed. (Emphasis added.)
As far as we can tell, the new regulations do not affect immigrant health care workers. Since the health care certificate requirement was enacted into law in 1996, the INS/BCIS has not required the certificate to be submitted until the application for adjustment of status is adjudicated, an event which usually occurs some two years after the filing date. Thus, the memo goes way beyond interpreting the new regulations, and dramatically alters former BCIS policy. One would have thought that if such a drastic change in policy was completed by the BCIS, it would have been announced in the proposed regulations in October 2002 or in the final regulations issued on July 25, 2003.
Hopefully, this is simply a mistake, and the BCIS will issue a revised memorandum. If not, beleaguered hospitals will be deprived of the opportunity to hire thousands of licensed nurses and allied health care professionals, further adding to the national shortage of such workers.
The health care certificate process requires that written and spoken English examinations be scheduled and passed; that the results be transmitted to approved credentialing organization; that foreign licenses be certified as being unencumbered; and that the education and training received abroad be comparable to U.S. education and training. The process can take anywhere from six months to two years or more. Most health care workers will not be able to comply with this new requirement during the pendency of their nonimmigrant stays in the U.S., and will be forced to return to their home countries.
The effect of the new policy on the hiring of registered nurses will be particularly pronounced. Unlike most allied health care professionals, RNs are usually ineligible for H-1B status. Hospitals are suffering a shortage of over 126,000 RNs according to the American Hospital Association. The BCIS's new policy will be to eliminate one of the few means that health care providers have to hire foreign-born nurses in a matter of months, rather than years.
Furthermore, since the BCIS memo conflicts with the new regulations, which controls? Regulations are published in the Federal Register and have the force of law. Agency memoranda are not published in the Federal Register and do not have the force of law. It is likely the apparent conflict will be resolved when a health care worker not in possession of a certificate is denied adjustment of status for that reason and renews his or her application in removal proceedings before an Immigration Judge. Then Immigration Judges, the Board of Immigration Appeals and, ultimately, the Federal Courts will decide whether the regulations or Section E of the memo controls.
We link to the BCIS memo from both our "Registered Nurses" and our "Allied Health Professionals" pages at shusterman.com/toc-rn.html#3 and shusterman.com/toc-ahp.html#6A
We suggest that all interested health care providers, workers and immigration attorneys consider writing to the BCIS and requesting that the September 22 memo be revised. We have drafted a sample letter which may be accessed at shusterman.com/bcismemo92203.html
Just FYI ...
* VisaScreen Policy Reversed - In the October 2003 issue of SHUSTERMAN'S
IMMIGRATION UPDATE, we informed our readers that the CIS had issued a memo
(on
September 22) which would require nurses and other health care workers to
submit a VisaScreen certificate together with their applications for
adjustment
of status. We asked you to write to the CIS and oppose this new policy.
See
shusterman.com/oct03.html#4
We are very pleased to announce that the CIS has informed the American Immigration Lawyers Association (AILA) at a recent liaison meeting that
VisaScreen certificates need NOT be submitted simultaneously with the I-485.
Such certificates will be required, as before, when the CIS adjudicates the I-485.
Health Care Workers: New BCIS Memo Is Wrong Rx for RNs
On September 23, the final BCIS regulations pertaining to certificates for health care workers became effective.
The regulations apply the health care certificate requirement to nonimmigrant nurses, medical technologists and technicians, occupational and physical therapists, physicians' assistants, audiologists and speech language pathologists beginning on July 26, 2004.
For links to the complete text of the regulations and our FAQ, see our August 2003 newsletter at
shusterman.com/aug03.html#3
On September 22, the day before the new regulations became effective, the BCIS issued a memorandum guiding government officers in implementing the rules. Most of this memo is fairly straightforward and non-controversial.
However, Section E of the memo which is entitled "Effect of Final Rule on Immigrants" states as follows:
Immigrant health care workers are currently required to present certification to the Department of State at the time of immigrant visa issuance or to the DHS at the time of adjustment of status. If the alien is adjusting status, all eligibility requirements must be met at the time of filing the application for adjustment of status. 8 C.F.R. 203.2 (b)(12). Therefore, a healthcare worker in one of the affected occupations must submit evidence of certification at the time the adjustment of status is filed. (Emphasis added.)
As far as we can tell, the new regulations do not affect immigrant health care workers. Since the health care certificate requirement was enacted into law in 1996, the INS/BCIS has not required the certificate to be submitted until the application for adjustment of status is adjudicated, an event which usually occurs some two years after the filing date. Thus, the memo goes way beyond interpreting the new regulations, and dramatically alters former BCIS policy. One would have thought that if such a drastic change in policy was completed by the BCIS, it would have been announced in the proposed regulations in October 2002 or in the final regulations issued on July 25, 2003.
Hopefully, this is simply a mistake, and the BCIS will issue a revised memorandum. If not, beleaguered hospitals will be deprived of the opportunity to hire thousands of licensed nurses and allied health care professionals, further adding to the national shortage of such workers.
The health care certificate process requires that written and spoken English examinations be scheduled and passed; that the results be transmitted to approved credentialing organization; that foreign licenses be certified as being unencumbered; and that the education and training received abroad be comparable to U.S. education and training. The process can take anywhere from six months to two years or more. Most health care workers will not be able to comply with this new requirement during the pendency of their nonimmigrant stays in the U.S., and will be forced to return to their home countries.
The effect of the new policy on the hiring of registered nurses will be particularly pronounced. Unlike most allied health care professionals, RNs are usually ineligible for H-1B status. Hospitals are suffering a shortage of over 126,000 RNs according to the American Hospital Association. The BCIS's new policy will be to eliminate one of the few means that health care providers have to hire foreign-born nurses in a matter of months, rather than years.
Furthermore, since the BCIS memo conflicts with the new regulations, which controls? Regulations are published in the Federal Register and have the force of law. Agency memoranda are not published in the Federal Register and do not have the force of law. It is likely the apparent conflict will be resolved when a health care worker not in possession of a certificate is denied adjustment of status for that reason and renews his or her application in removal proceedings before an Immigration Judge. Then Immigration Judges, the Board of Immigration Appeals and, ultimately, the Federal Courts will decide whether the regulations or Section E of the memo controls.
We link to the BCIS memo from both our "Registered Nurses" and our "Allied Health Professionals" pages at shusterman.com/toc-rn.html#3 and shusterman.com/toc-ahp.html#6A
We suggest that all interested health care providers, workers and immigration attorneys consider writing to the BCIS and requesting that the September 22 memo be revised. We have drafted a sample letter which may be accessed at shusterman.com/bcismemo92203.html
Just FYI ...