Visa Screen Certifications Not Required for TNs
Posted Jul 25, 2004
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The Visa Screen Certification requirement for certain nonimmigrant foreign health care workers was supposed to become effective on July 26, 2004. This requirement for the certification of certain health care workers was enacted in 1999. However, it was not until July 2003 that the Department of Homeland Security (DHS) published the final regulations that implemented this law and specified the certification requirements for the affected health care workers. The regulation, however, delayed the effective date for one year, until July 26, 2004. These developments were reported to Murthy-Bulletin readers on August 1, 2003 in our article, New Requirements for Foreign Health Care Professionals, as well as in our October 10, 2003 article, USCIS Memo on Certification of Health Care Workers, both available on MurthyDotCom.
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Visa Screen Required for Certain Professionals
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The DHS certification requirement applies to a limited group of health care occupations: nurses (including licensed vocational, licensed practical, and registered); occupational therapists; speech language pathologists and audiologists; physician assistants; medical technologists (also known as clinical laboratory scientists); and medical technicians (also known as clinical laboratory technicians). Doctors and foreign nationals seeking to work in non-clinical health care occupations, including medical teachers, medical researchers, and health care facility managers, are excluded from this requirement.
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DHS will now require affected foreign health care workers to obtain a certification of their credentials when seeking nonimmigrant status to work in the United States. On a separate note, most such workers who enter on an immigrant visa or obtain permanent residence within the U.S. are required to complete the Visa Screen certification. The certification will be required by the Consular Officer at the visa issuance stage, by a CBP Officer when seeking admission to the U.S., and by USCIS when applying to extend or change status. The regulation requires certification for nonimmigrant categories, including the popular H1B visa, though many nurses and other health care workers may not qualify for H1B status since the work does not require a person with a baccalaureate degree. Foreign nationals applying for the F-1 visa, J-1 visa, or the H-3 visa are exempt from the visa screen requirements.
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Extension of Visa Screen for TNs until July 2005
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The TN visa, available to certain Canadian and Mexican citizens, is also subject to the visa screen certification requirement. DHS announced on July 19, 2004, however, that there will be a limited extension of the exemption for TNs. The extension, valid for a year, will exempt TN health care workers who were licensed in the U.S. and employed as TN nonimmigrant health care workers before September 23, 2003. DHS acknowledged that this extension was necessary to avoid greater hardship on border area health care systems.
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What this new requirement means for affected foreign health care workers already in the U.S. is that they need the Visa Screen Certificate in order to extend or change their statuses or to reenter the U.S. after travel on or after July 26, 2004. It is possible for other persons to obtain a waiver on a case-by-case basis, but it is unlikely that many of these waivers will be granted.
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Clarification Added
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The interim rule also clarifies that, while the USCIS cannot grant an extension of status or a change of status for those health care workers who do not have the required certification, the USCIS is permitted to grant an I-129 approval for consular processing. This would give the foreign health care worker the opportunity to seek a visa once s/he has the required certification. A change of status or extension of status will not be approved for a person who obtained the certification more than one year after the initial date of admission, change of status, or extension of stay as a health care worker.
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Purpose of the Visa Screen Certification
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The Visa Screen Certificate verifies that a foreign national’s credentials and license are comparable to that required of an American health care worker, that the worker meets all the legal requirements for entry into the U.S. in the requested visa classification, and the credentials are authentic. The Visa Screen also certifies that the health care worker has the required level of English competence. For nurses, it also certifies that they have passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) exam or the National Council Licensure Examination for Registered Nurses (NCLEX-RN).
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Credentialing Agencies
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The Visa Screen Certificate can be issued by the CGFNS to any of the affected health care workers. However, DHS has authorized other organizations to issue Visa Screen Certificates for specific occupations. For example, physical therapists may also apply to the Foreign Credentialing Commission on Physical Therapy and occupational therapists may apply to the National Board for Certification and Occupational Therapy. A list of all organizations authorized to issue Visa Screen Certificates to affected health care workers is maintained by DHS and available on the USCIS WebSite.
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Registered nurses may be eligible to meet the regulation’s requirement with a Certified Statement in certain instances. An RN can apply for the Certified Statement by meeting five criteria. These are:

• the RN has an unrestricted, authentic and unencumbered license in the state of intended employment

• s/he has passed the NCLEX-RN exam

• his or her nursing program of instruction was in English

• the nursing program was located in a designated country

• and the nursing program was in operation before November 12, 1999 or approved by CGFNS or equivalent approved credentialing organization.

Period of Validity of the Visa Screen Certification
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Both the Visa Screen Certificate and Certified Statement must be used within five years of the date issued. The certification document will only be valid longer than five years if it is used at least once during the initial five-year period. If the Visa Screen Certificate or Certified Statement expires, the affected foreign health care worker must apply for a new certification to comply with the DHS regulation.
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Although the regulation requires each credentialing organization to explain how it will process applications in a timely manner, nothing is stated regarding how quickly a Visa Screen Certificate or Certified Statement must be issued. Foreign nationals affected by this requirement would serve themselves well to apply as promptly as possible to avoid and/or minimize any delays.
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The laws establishing the requirements for applicants seeking entry to the United States for work in the health care industry continue to rapidly evolve and change. The Law Office of Sheela Murthy is committed to continuing to provide the most current information on U.S. immigration laws to MurthyDotCom and MurthyBulletin readers.