Proposed Rules Federal Register63313Vol. 67, No. 198Friday, October 11, 2002
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 212, 214, 245, 248 and 299
[INS 2080–00]
RIN 1115–AE73
Certificates for Certain Health CareWorkers
AGENCY: Immigration and NaturalizationService, Justice.
ACTION: Proposed rule.
SUMMARY: This rule specifies the organizations already authorized to issue health care workers certificates, and sets up procedures for authorizing additional organizations, including an appeals process in the event that requests for authorization are denied.
In addition, this rule proposes to add the requirement that all nonimmigrants coming to the United States for the primary purpose of labor as health care workers, including those seeking a change of status, be required to submita health care worker certification.
Previously, the Service had implemented health care workercertification requirements through three interim regulations.
This proposed rule expands on those three interim rules and allows for a comment period.
Finally, the Immigration and Naturalization Service (Service)proposes amendments to a previously created form that will alloworganizations to formally seek authorization to issue certificates to health care workers in a uniform manner.
Publication of this proposed rule will ensure more uniformity in the adjudication of petitions and admissibility determinations for aliens seeking to enter the United States to engage in labor as health care workers.
DATES: Written comments must be submitted on or before December 10, 2002.
ADDRESSES: Please submit written comments to the Director,
Regulations and Forms Services Division,
Immigration and Naturalization Service,
425 I Street, NW., Room 4034,
Washington, DC 20536.
To ensure proper handling, please reference INS No. 2080–00 on your correspondence.
Comments may also be submitted electronically to the Service atinsregs@usdoj.gov.
When submitting comments electronically, please include INS No. 2080–00 in the subject box.
Comments are available for public inspection at the above address by calling (202) 514–3048 to arrange for anappointment.
FOR FURTHER INFORMATION CONTACT:
Mari F. Johnson,
Adjudications Officer,
Office of Adjudications,
Immigration and Naturalization Service,
425 I Street, NW., Room 3214,
Washington, DC 20536
telephone (202) 353–8177.
SUPPLEMENTARY INFORMATION:
What Are the Provisions of Sections 212(a)(5)(C) and (r) of the Immigration and Nationality Act (Act)?Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Public Law 104–208, 110 Stat. 3009, 636–37 (1996), created a new ground of inadmissibility now codified at section 212(a)(5)(C) of the Act, 8 U.S.C. 1182(a)(5)(C).
It provides that, subject to section 212(r) of the Act, analien who seeks to enter the United States for the purpose of performing labor as a health care worker, other than a physician, is inadmissible unless the alien presents a certificate from the Commission on Graduates of ForeignNursing Schools (CGFNS) or an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of the Department of Healthand Human Services (HHS) verifying 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 classificationspecified in the application; are comparable with that required for an American health care worker of the same type; are authentic; and, in the case of a license, 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, 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(3) If a majority of States licensing the profession in which the alien intends to work recognize a test predicting anapplicant’s success on the profession’s licensing or certification examination,the alien has passed such a test, or haspassed such an examination.
Section 4(a) of the Nursing Relief forDisadvantaged Areas Act of 1999(NRDAA), Public Law 106–95, nowcodified at section 212(r) of the Act, 8U.S.C. 1182(r), created an alternativecertification process for aliens who seekto enter the United States for thepurpose of performing labor as a nurse.
In lieu of a certification under thestandards of section 212(a)(5)(C) of theAct, an alien nurse can present to theconsular officer (or in the case of anadjustment of status, the AttorneyGeneral) a certified statement fromCGFNS (or an equivalent independentcredentialing organization approved forthe certification of nurses) that:
(1) The alien has a valid andunrestricted license as a nurse in a Statewhere the alien intends to be employedand that such State verifies that theforeign licenses of alien nurses areauthentic and unencumbered;
(2) The alien has passed the NationalCouncil Licensure Examination(NCLEX); and
(3) The alien is a graduate of a nursingprogram that meets the followingrequirements:
(i) The language of instruction wasEnglish; and
(ii) The nursing program was locatedin a country which:(A) was designated by CGFNS no laterthan 30 days after the enactment of theNRDAA, based on CGFNS’’ assessmentthat designation of such country isjustified by the quality of nursingeducation in that country, and theEnglish language proficiency of thosewho complete such programs in thatcountry; or(B) was designated on the basis ofsuch an assessment by unanimousagreement of CGFNS and any equivalentcredentialing organizations which theAttorney General has approved for thecertification of nurses; and
(iii) The nursing program:
(A) was in operation on or beforeNovember 12, 1999; or
(B) has been approved by unanimousagreement of CGFNS and any equivalentcredentialing organizations which theAttorney General has approved for thecertification of nurses.
CGFNS designated the followingcountries for purposes of this alternatecertification: Australia, Canada, Ireland,New Zealand, South Africa, the UnitedKingdom, and the United States.
How Has the Service ImplementedThese Requirements?Section 212(a)(5)(C) of the Act becameeffective upon enactment on September30, 1996.
Shortly thereafter, the Servicemet and conferred with HHS, theDepartment of Labor (DOL), theDepartment of Education (DoED), theDepartment of Commerce (DOC), theOffice of the United States TradeRepresentative (USTR), and DOS toreach consensus on the best approachfor implementation of the newprovision.
In addition, the Service metwith interested private organizationsincluding CGFNS, the AmericanOccupational Therapists Association,the National Board for Certification inOccupational Therapy (NBCOT), theFederated State Board of PhysicalTherapy, and the American PhysicalTherapy Association.
The Service has implemented section343 of IIRIRA and NRDAA, via threeinterim rules published in the FederalRegister as follows:
(1) Interim Procedures for CertainHealth Care Workers, 63 FR 55007 (Oct.14, 1998) (codified at 8 CFR 212.15 and245.14)(the first Interim Rule);
(2) Additional Authorization to IssueCertificates for Foreign Health CareWorkers, 64 FR 23174 (April 30, 1999)(amending § 212.
15)(the second InterimRule); and
(3) Additional Authorization to IssueCertificates for Foreign Health CareWorkers; Speech Language Pathologistsand Audiologists, MedicalTechnologists and Technicians, andPhysician Assistants, 66 FR 3440 (Jan.16, 2001) (amending § 212.15)(the thirdInterim Rule).
These current regulatory provisionsshall remain in effect until thisproposed rule is adopted as a final rule.
What Were the Provisions of the FirstInterim Rule?The Service in consultation with HHSinitially identified, on the basis of thelegislative history, seven categories ofhealth care workers subject to theprovisions of section 212(a)(5)(C) of theAct.
See H.R. CONF. REP. NO. 104–828at 227 (1996).
The seven categories arenurses, physical therapists,occupational therapists, speechlanguagepathologists, medicaltechnologists (also known as clinicallaboratory scientists), medicaltechnicians (also known as clinicallaboratory technicians) and physicianassistants.
See 63 FR at 55008.
In the first Interim Rule, the Serviceauthorized CGFNS and the NBCOT toissue certificates to immigrant nursesand occupational therapistsrespectively, established the appropriateEnglish language competency levels forforeign nurses and occupationaltherapists, and specified exemptionsfrom English language proficiencytesting.
The first Interim Rule wasadopted without the notice andcomment period ordinarily required by5 U.S.C. 553, the AdministrativeProcedure Act, because the Servicefound that delay in the establishment ofa certification process could adverselyaffect the provision of health care,particularly in medically underservedareas for nursing and occupationaltherapy.
The Service identified twocriteria to support the temporaryauthorization of CGFNS and the NBCOTto issue certificates to immigrant nursesand occupational therapists: (1) Theexistence of a sustained level of demandfor foreign workers for the particularoccupation exists; and (2) the fact thatthese are both organizations with anestablished track record in providingcredentialing services.
The first Interim rule applied only to immigrants.
The Service and DOS exercised their discretion under section 212(d)(3) of the Act, 8 U.S.C. 1182(d)(3),to waive the foreign health care workercertification requirement fornonimmigrant health care workers untilpromulgation of final implementingregulations.
The Service and DOSexercised their waiver discretion aftercarefully considering the complexity ofthe implementation issues, includinghow the health care certificaterequirements affect United Statesobligations under internationalagreements, and the need for health carefacilities across the country to remainfully staffed and provide a high qualityof service to the public.
The waiver ofinadmissibility applies to nonimmigranthealth care workers already inpossession of nonimmigrant visas andvisa exempt aliens, including Canadiansapplying for classification under section214(e) of the Act, 8 U.S.C. 1184(e)(TNclassification).
Under currentprocedures, a formal application or feeis not required for a nonimmigranthealth care worker to obtain the waiver.
Nonimmigrant health care workers areadmitted on a multiple entry Form I–94,Arrival—Departure Record, for one year.
In addition, otherwise admissibledependents are also authorizedadmission into the United States for thespecific dates of stay authorized for theprincipal alien.
A new waiver is notrequired if the nonimmigrant healthcare worker makes an application foradmission to the United States duringthe validity period of the previouslyissued Form I–94.
Nonimmigrantsapplying for TN classification are notrequired to pay the admission feedescribed at 8 CFR 214.6(f) whenapplying for admission during thevalidity period of the previously issuedForm I–94.
Finally, nonimmigranthealth care workers are eligible forextensions of the waiver andcorresponding extensions of stay inincrements of one year.
What Were the Provisions of the SecondInterim Rule?In the second Interim Rule, theService temporarily authorized CGFNSto issue certificates to immigrantoccupational therapists and physicaltherapists, temporarily authorized theForeign Credentialing Commission onPhysical Therapy (FCCPT) to issuecertificates to immigrant physicaltherapists, and established theappropriate English languagecompetency levels for physicaltherapists.
The Service, in consultation withHHS, evaluated CGFNS’ and FCCPT’sapplications for authorization to issuecertificates under the criteria in the firstInterim Rule.
The Service found thatboth CGFNS and FCCPT met the‘‘established track record’’ criterion, andconcluded that there was a sustainedlevel of demand for occupationaltherapists and for physical therapists.
What Were the Provisions of the ThirdInterim Rule?In the third Interim Rule, the Servicetemporarily authorized CGFNS to issuecertificates to immigrant speechlanguagepathologists and audiologists,medical technologists (also known asclinical laboratory scientists), physicianassistants, and medical technicians (alsoknown as clinical laboratorytechnicians), listed the passing scoresfor the English language tests for thosehealth care occupations, and amendedthe regulations concerning whichorganizations may administer theEnglish language tests.
The Service alsomodified the criteria it had used in thefirst and second Interim Rules totemporarily authorize organizations toissue certificates to immigrant healthcare workers.
By the time the third Interim Rule wasadopted, the Service had experiencedtremendous administrative difficulty inpromulgating permanent regulationsimplementing 8 U.
S.C.
1182(a)(5)(C) dueto the complexity of the issues to beaddressed, particularly the issuesconcerning the impact on United Statesobligations under various internationalagreements.
While the Service and DOShad exercised their discretion undersection 212(d)(3) of the Act totemporarily waive the inadmissibility ofnonimmigrant health care workers,thereby permitting nonimmigrant healthcare workers to be admitted to theUnited States without a certification,they lacked the statutory authority towaive the inadmissibility of immigranthealth care workers.
Accordingly, theService and DOS were unable toadjudicate the petitions of thoseimmigrant health care workers notcovered by the first or second InterimRules.
The immigrant petitions andadjustment applications for speechlanguagepathologists and audiologists,medical technologists/clinicallaboratory scientists, physicianassistants, and medical technicians/clinical laboratory technicians had beenheld in abeyance for several years.
Recognizing that it was unable toexecute its adjudicative functions withrespect to this growing backlog, theService did not rely on the criterion ofa ‘‘sustained level of demand’’ for theimmigrant workers in question.
The Service found that CGFNS had an established track record in issuingcertificates for the additionaloccupations.
What Were the Provisions of the H–1CRule?
The Service also published a relatedrule in response to the passage of theNRDAA, Petitioning Requirements forthe H–1C Nonimmigrant Classificationunder Public Law 106–95, 66 FR 31107(June 11, 2001) (amending 8 CFR214.2(h)).
Among other things, the NRDAA created an alternativecertification process for foreign nursesonly, as provided in section 212(r) of theAct.
In the H–1C rule, the Serviceannounced that it would continue towaive the certification requirements fornonimmigrant nurses, pending thepromulgation of new regulationsimplementing both certificationprocesses.
That is the purpose of thisproposed rule.
It should be noted that in the H–1CRule, the Service incorrectly stated thattwo interim rules had beenpromulgated, which authorizedcredentialing organizations to issuecertifications to immigrant health careworkers in three occupations.
In fact, aspreviously described, with thepublication of the third Interim Rule,the Service had authorized credentialingorganizations to issue certifications inall seven of the health care occupationsinitially identified as subject to thecertification requirements.
What Does This Rule Propose?
This rule proposes to implement acomprehensive process for thecertification of foreign health careworkers under sections 212(a)(5)(C) and(r) of the Act.
It addresses foreign healthcare workers coming to the UnitedStates on a temporary basis(nonimmigrant aliens) as well as on apermanent basis (immigrants).
This rule proposes to amend 8 CFR212.15 by:
(1) Specifying which organizations areauthorized to issue certificates(§ 212.15(e));
(2) Describing the required content ofthe certificate itself (§ 212.15(f));
(3) Specifying the English languagerequirements for certification(§ 212.15(g));
(4) Implementing the alternativecertification process for foreign nursesand the required content of the certifiedstatement (§ 212.15(h));
(5) Describing the procedure toqualify as a certifying organization(§ 212.15(j));
(6) Listing the standards that anorganization must meet in order toobtain and retain authorization to issueforeign health care worker certifications(§ 212.15(k)); and
(7) Providing for periodic review ofthe performance of certifyingorganizations (§ 212.15(l)) and thetermination of their authority(§ 212.15(m)).
This rule proposes to amend 8 CFR103.1 by specifying at new paragraphs(f)(3)(iii)(QQ) and (RR) that theAssociate Commissioner forExaminations exercises appellatejurisdiction over applications forauthorization to issue foreign healthcare worker certifications, and thetermination of authorization to issueforeign health care worker certifications.
This rule proposes to amend 8 CFR103.7(b) (1) by adding a fee for filing Form I–905, Application forAuthorization to Issue Certification forHealth Care Workers.
This form waspreviously approved for use in order toensure that organizations formallyseeking authorization to issue healthcare worker certificates or certifiedstatements will be able to submitcomplete and uniform applications.
This form has not yet been implementedby the Service.
This rule proposes to amend 8 CFR214.
1(h) by adding a requirement thatan alien who seeks to enter the UnitedStates for the purpose of performinglabor in a health care occupation mustpresent a foreign health care workercertification to the Service inaccordance with 8 CFR 212.
15(d).
This rule proposes to remove text at8 CFR 245.14 relating to the adjustmentof status of certain health care workers.
This provision is duplicated by theprovisions of 8 CFR 212.15(d).
This rule proposes to amend 8 CFR248.3 by adding paragraph (i) tomandate that a nonimmigrant seeking achange of status to perform labor in ahealth care occupation must submit aforeign health care worker certification.
Who Is Subject to the Health CareCertification Requirements?
After the Service’s consideration ofthe relevant statutory provisions,legislative history, judicial precedent,international agreements, and otherproposed rulemakings, and afterextensive consultations that the Servicehas had with other agencies, thisproposed rule takes the position that therequirements of section 212(a)(5)(C)apply to both immigrants andnonimmigrants who seek to enter theUnited States for the purpose ofperforming labor as a health careworker.
Physicians, however, areexplicitly exempted from thecertification requirement by the statuteand, therefore, are not covered by thisrule.
With respect to immigrants, thecertification requirement applies to bothaliens overseas who are seeking animmigrant visa before traveling to theUnited States, and aliens in the UnitedStates who are applying for adjustmentof status to that of a permanent resident.
The Service interprets the statutorylanguage, ‘‘any alien who seeks to enterthe United States for the purpose ofperforming labor as a health care worker* * *’’ with respect to immigrants, tolimit the scope of this provision toaliens with an approved employmentbased(EB) preference petition undersection 203(b) of the Act, 8 U.S.C. 1153(b), to perform labor in a coveredhealth care occupation.
Therefore, analien who has applied for an immigrantvisa or adjustment of status, pursuant toa family sponsored petition undersection 203 (a) of the Act, 8 U.S.C. 1153(a), or pursuant to an EB preferencepetition for a non-health careoccupation, or pursuant to section 209of the Act, 8 U.S.C. 1159 (adjustment ofstatus of refugees), or pursuant tosection 210 of the Act, 8 U.S.C. 1160(special agricultural workers), or pursuant to section 240A of the Act, 8U.S.C. 1229 (b) (cancellation of removal),or pursuant to section 249 of the Act, 8U.S.C. 1259 (record of admission forpermanent residence), or pursuant toany other statutory provision relating toadmission as an immigrant, is notsubject to the requirements of section212(a)(5)(C) of the Act.
With respect to nonimmigrants, theproposed rule applies the certificationrequirement to all aliens who haveobtained nonimmigrant status for thepurpose of performing labor as a healthcare worker, including, but not limitedto, those aliens described in sections101(a)(15)(H), (J), and (O) of the Act, 8U.S.C. 1101(a)(15), and aliens enteringpursuant to section 214(e) of the Act, 8U.S.C. 1184(e), as TN professionals.
The Service is proposing that anonimmigrant entering the UnitedStates to receive training in anoccupation listed at 8 CFR 212.
15(c)will not be required to obtain a healthcare certification.
This includes F–1nonimmigrants receiving practicaltraining and J–1 nonimmigrants comingto the United States to undertake atraining program in a medical field.
Inthe Service’s view, nonimmigrantsentering the United States to receivetraining in a health care occupation falloutside the ambit of section 212(a)(5)(C)of the Act because they are notindependently performing the full rangeof duties of their occupation, andtherefore are not entering for thepurpose of performing labor as a healthcare worker.
Finally, the Service has concludedthat the health care certificationrequirement should not be applied tothe spouse and dependent children ofan immigrant or nonimmigrant alien.
Dependent aliens enter the UnitedStates for the primary purpose ofaccompanying the principal alien, not toperform labor as a health care worker,or in any other field.
A dependent alienderives his or her nonimmigrant statusfrom his or her familial relationshipwith the principal alien.
Therefore,while he or she may be permitted towork in some circumstances, he or sheis not required to work in a particularoccupational field or for a specificemployer to maintain his or her status.
Accordingly, regardless of whether ornot a dependent alien may intend towork in a health care occupation listedat 8 CFR 212.
15(c), while accompanyingthe principal alien to the United States,he or she would not be subject to thehealth care worker certificationrequirement.
The Service is very interested in andinvites public comment on theappropriate scope of the certificationrequirement.
Are Foreign Health Care Workers WhoHave Been Trained in the United States,or Who Are In Possession of a ValidState License, Subject to the HealthCare Certification Requirement?
After passage of IIRIRA, the Servicereceived a number of inquiries andcomments regarding whether a foreignhealth care worker in possession of afull and unrestricted license issued bythe State of intended employmentwould be required to obtain a certificateunder section 212(a)(5)(C) of the Act.
After carefully considering the plainlanguage of the statute, and uponconsultation with HHS, the Service hasconcluded that possession of a Statelicense does not exempt a foreign healthcare worker from compliance with thecertification requirement.
First, section212(a)(5)(C) of the Act applies to allaliens coming to perform labor as healthcare workers, except for physicians andfor registered nurses who can meet thealternative requirements in section212(r) of the Act.
Nothing in the text ofsection 212(a)(5)(C) of the Act relievesalien health care workers of thisrequirement, on the ground that theywere trained in the United States or arealready licensed here.
Moreover, oneaspect of the required certification is thecertification that any State license thealien may already have isunencumbered.
Indeed, had Congressintended to exempt such aliens from thecertification requirement, it would nothave explicitly provided that thecertification must document the fact ofan alien’s successful passage of any testor examination that is accepted asevidence of an applicant’s likely successon a State licensing examination, if amajority of States recognize such a prelicensingtest or examination.
Inaddition, in NRDAA, Congressexplicitly addressed whether a foreignnurse, in possession of a full andunrestricted license issued by the Stateof intended employment, should besubject to the certification requirement.
NRDAA created a less onerous,alternative method of certification forforeign nurses who have unrestrictedState licenses and meet certain otherconditions, as provided in section 212(r)of the Act.
The fact that Congress haschosen not to provide a less rigorousalternative certification option to Statelicensedforeign health care workersother than nurses supports the inferencethat Congress intended State-licensedforeign health care workers to complywith the certification process.
In addition to the statutory scheme,there are policy considerations thatmitigate in favor of applying thecertification requirement to Statelicensedforeign health care workers.
The State screening process alonewould not demonstrate that the othertwo prongs of the certificationrequirement, English languagecompetency, and comparable trainingand unencumbered licensing, had beenmet.
First, the State screening processdoes not always measure Englishproficiency.
Secondly, HHS has advisedthe Service that the State screeningprocess may not always discoverencumbrances and restrictions on alicense.
The statute and legislative history aresilent with respect to whether foreignhealth care workers, who received theirtraining in the United States, are subjectto the certification process.
While suchaliens would satisfy the comparabletraining certification requirements, theirlicensure would not be verified, asrequired by the statute.
Given the lackof evidence of congressional intent thatsuch aliens be exempt from the reach ofsection 212(a)(5)(C) of the Act, theService has concluded that foreignhealth care workers who received theirtraining in the United States mustcomply with the certificationrequirement.
The Service, however, would not beopposed to permitting credentialingorganizations to develop a modified orstreamlined certification process forforeign health care workers who hold anunrestricted State license, or who havebeen trained in the United States.
TheService invites comments regarding thefeasibility of having a more streamlinedcertification process for those who trainin the United States or who are alreadylicensed here, and regarding specificproposals on how to adopt such apolicy.
The critical issue would bewhether, as a matter of its ownprofessional judgment, theappropriating credentialing organizationconsiders its appropriate to certify analien’s satisfaction of the substantiverequirements of section 212(a)(5)(C) ofthe Act on the basis of the alien’s havingbeen trained or licensed in the UnitedStates.
Which Health Care Occupations AreSubject to 8 U.S.C. 1182(a)(5)(C)?
As previously noted, after passage ofIIRIRA the Service identified, on thebasis of the legislative history, sevencategories of health care workers subjectto the health care certificationrequirements. See H.R. CONF. REP. NO.104–828 at 227 (1996).
The sevencategories are nurses, physicaltherapists, occupational therapists,speech-language pathologists, medical
technologists (also known as clinicallaboratory scientists), medicaltechnicians (also known as clinicallaboratory technicians) and physicianassistants. See the first Interim Rule.
The conference report also providedthat the Service could designateadditional health care occupationssubject to certification by regulation.
Since the Service has limited agencyexpertise with health care occupationsand issues, it has consulted extensivelywith HHS, the agency generallyresponsible for overseeing health careoccupations and other related healthcare issues in the United States, withrespect to the question of whether aliensin additional health care occupationsshould be required to comply with 8U.S.C. 1182(a)(5)(C).
The Service and HHS have identifiedtwo factors relevant to the considerationof which health care occupations fallunder the ambit of section 212(a)(5)(C)of the Act.
The first factor is whether thehealth care occupation generallyrequires a license in a majority of theStates.
This factor reflects the States’historical and practical experience indistinguishing between those healthcare occupations requiring extensiveregulation and those occupations thatdo not.
The second factor is whether thehealth care worker has a direct effect onpatient care, or in other words whethera health care worker in that occupationcould reasonably pose a risk to patienthealth.
Under this rule, health care workerssuch as, but not limited to, medicalteachers, medical researchers, managersof health care facilities, and medicalconsultants to the insurance industrywould not be required to comply withthe certification requirement.
Incontrast, health care workers, such assupervisory physical therapists, whomay not typically be involved in handsonpatient care but do have a directeffect on patient care, would be subjectto the certification requirements.
TheService invites comments on whetherthe list of health care occupationsshould be expanded, addressing its useof these two factors to determine whichhealth care workers are subject tocertification, and whether particularoccupations should be added to the list.
The Service acknowledges that the jobdescription of certain occupations thatcould be added to the list, such as a‘‘clinical social worker,’’ may differ inother countries from the U.S. definitionof a ‘‘clinical social worker.
’’ Thesedifferences may create confusion aboutwho exactly is subject to certification.
Asolution may lie in explicitly definingeach health care occupation, subject tocertification, in the final rule.
Accordingly, the Service invitescomments regarding the need to definea health care occupation that is subjectto certification.
How Will an Alien Submit the ForeignHealth Care Worker Certification to theService?The statutory language at section212(a)(5)(C) of the Act requires certainaliens seeking to enter the United Statesfor the purpose of performing labor asa health-care worker to present acertificate from CGFNS or an equivalentcredentialing organization to theconsular officer or, in the case of anadjustment of status, the AttorneyGeneral.
Accordingly, the requirementthat the certificate be presented to aconsular officer at the time of visaissuance and to the Service at the timeof admission or adjustment of statuswill continue.
When an alien seeking entry to theUnited States to perform labor in aparticular health care occupation hasalready presented the certification andbeen admitted as a nonimmigrant, animmigrant, or has adjusted to permanentresident status, he or she will not berequired to present the certificate againwhen he or she makes futureapplications for admission to the UnitedStates to perform labor in that particularhealth care occupation.
Thepresentation of a Form I–94 issued tothe alien at the initial admission to theUnited States, or a fee receipt showingthat the alien was processed foradmission under the North AmericanFree Trade Agreement after this rule isadopted in final form, can be used, ifrequired, as evidence that the alien haspreviously presented a foreign healthcare worker certificate for a particularhealth care occupation.
Similarly, suchan alien will not be required to againpresent the foreign health care workercertificate to the Service, with anapplication for extension of status toperform labor in that particular healthcare occupation.
It should be noted thatthese proposed regulations do not affector diminish the authority of Stateregulatory bodies with respect towhether an alien is permitted tocontinue employment as a health careworker in that particular State.
This rule proposes to add a new§ 248.
3(i) to outline the procedure forsubmitting the certificate to the Servicewhen an application is made to changenonimmigrant status within the UnitedStates.
Upon the effective date when this ruleis published as a final rule,nonimmigrants who have alreadyentered the United States under awaiver of inadmissibility under section212(d)(3) of the Act and are working ashealth care workers will be required topresent a certificate to the Service onlyif, at any point in the future, they filean application for an extension of stay,or apply for admission to the UnitedStates, whichever event occurs first.
The Service welcomes comments andsuggestions on how this procedure canbe modified or altered to betteraccommodate the aliens affected by thisprovision.
How Will an Organization ObtainAuthorization To Issue Health CareCertificates?
The statute provides that a foreignhealth care worker must present acertificate from CGFNS or an equivalentcredentialing organization or, in thecase of certain foreign nurses, a certifiedstatement from CGFNS or an equivalentcredentialing organization.
In thelegislative history to IIRIRA, theconferees identified seven health careoccupations (which are currentlyreflected in § 212.
15(c)).
It is reasonableto infer from the statutory designation ofCGFNS as a credentialing organizationthat Congress considered CGFNS topossess the resources and expertise toissue certificates in at least those sevendesignated health care occupations.
Accordingly, the Service will notrequire CGFNS to apply forcredentialing status with respect tothose seven health care occupations.
However, CGFNS will be required tosubmit information regarding itscertification processes via filing of FormI–905, Application for Authorization toIssue Certification for Health CareWorkers, without fee with the Director,Nebraska Service Center, in order toenable the Service to review the contentof certificates for the seven health careoccupations, and content of certifiedstatements for nurses, and ensurecompliance with the universalstandards set forth in this rule.
Likeother credentialing organizations,CGFNS will also be subject to ongoingreview by the Service, and terminationof credentialing status fornoncompliance with this rule.
It is less clear, however, that Congressconsidered whether CGFNS possessedthe expertise to issue certificates forhealth care occupations other than theseven identified in the legislativehistory.
Therefore, although CGFNS’statutory designation creates a strongpresumption of expertise with respect toall health care occupations, the Servicewill require CGFNS to file anapplication on Form I–905 with feeunder the procedures outlined atproposed § 212.
15(j), for credentialingstatus with respect to any health care
occupation other than the sevenidentified in the legislative history.
Organizations, other than CGFNS,may be approved to issue certificates orcertified statements by submission ofForm I–905 to the Director, NebraskaService Center, with fee.
The fee forForm I–905 will be $230.
The Servicewill submit Form I–905 to the Office ofManagement and Budget for approvalpursuant to the Paperwork ReductionAct of 1995.
For purposes of administrative easeand efficiency, the Service willcentralize all requests for designation asa credentialing organization at theNebraska Service Center, regardless ofthe geographical location of therequesting organization.
Centralizationof these requests will enable personnelat the Nebraska Service Center toestablish and maintain the appropriatecontacts with HHS and DoED to assistin the adjudication of applications forcredentialing status.
The Service willaccord significant weight to the opinionof HHS in the adjudication ofapplications for credentialing statusbecause of that agency’s expertise withcredentialing requirements for healthcare occupations and health care issues.
It should be noted, however, that theService may deny a request forauthorization on grounds unrelated tocredentialing requirements for healthcare occupations or health care issues,despite a favorable HHS opinion.
The Form I–905 will require theorganization seeking credentialingstatus to:
(1) Provide a point of contact and awritten, detailed description of theorganization and how the organizationmeets the standards described in 8 CFR212.15(k);
(2) List the health care occupations forwhich the organization is seekingapproval to issue certificates, anddescribe the organization’s expertise ineach health care occupation for whichapproval to issue certificates is sought;
(3) Describe how it will processapplications and issue certificates on atimely basis; and(4) Describe the procedure it hasdesigned in order for the Service toverify the validity of a certificate.
The Service will provide theorganization with a written decision onits application.
An organization grantedauthorization to issue certificates mustagree to provide the Service with allrequested documentation and to allowthe Service access to its records relatingto the certification process.
If theapplication is denied, the Service willexplain the reason(s) for the denial.
Applications that are denied by theService may be appealed to theAdministrative Appeals Office pursuantto 8 CFR 103.3.
The Service is planning to add neworganizations that are approved to issuecertificates and certified statements to§ 212.
15(e) via publication of an interimrule in the Federal Register.
In thealternative, the Service is consideringdesignating, by a separate andcomprehensive public notice in theFederal Register, the list oforganizations approved to issuecertification.
The Service would alsomaintain this list on its website athttp://www.ins.usdoj.gov.
This methodwould allow the Service to update thelist of authorized organizations morequickly than through publication ofinterim rules.
The Service seekscomment on whether this alternativemethod of maintaining a list ofauthorized organizations would betterserve the public.
More than one organization may beapproved by the Service to issuecertificates for the same health careoccupation.
An alien may obtain acertificate from any organizationauthorized to issue certificates for thatoccupation.
This rule also provides thatthe Service’s approval will be for a 5-year period of time subject to the reviewprocess described in 8 CFR 215.
15(l).
The Service proposes to extend thetemporary authorization of CGFNS,NBCOT, and FCCPT to issue health carecertificates and/or certified statementsuntil adjudication of their credentialingstatus under this final rule.
How Did the Service Decide That theForm I–905 Application Fee Should Be$230?
The Service believes that it isreasonable to identify a currentapplication whose process is similar tothe requirements outlined under§ 212.15(k) in order to select anappropriate fee to charge organizationswho wish to be authorized to issuehealth care worker certifications.
Organizations filing health care workercertification applications are requestingthat the Service review their resources,including staffing and financial andmaterial resources, their ability toevaluate foreign credentials, and theirability to conduct examinations outsidethe United States.
The current Servicepetition whose process is most similarto the application process forauthorization to issue health careworker certification is the Form I–17,Petition for Approval of School forAttendance by Nonimmigrant Student,which is currently used by otherorganizations that seek approval toadmit nonimmigrant students.
Indeveloping fees, the Service mustcomply with guidance provided in theOffice of Management and Budget(OMB) Circular A–25.
This guidancedirects Federal agencies to charge the‘‘full cost’’ of providing benefits whencalculating fees that provide a specialbenefit to recipients.
Section 6(d) ofOMB Circular A–25 defined ‘‘full cost’’as including ‘‘all direct and indirectcosts to any part of the FederalGovernment of providing a good,resource, or service.
’’ In its most recentreview of immigration andnaturalization benefits, the Serviceidentified the current full cost of theForm I–17 to be $230.
The Servicedetermined that a $230 fee for the FormI–17 would underwrite the Service’sprocessing and administrative costsincurred in the Form I–17 adjudicationprocess, such as staffing, training ofService personnel, and adjudication ofthe petitions.
The Service will thus use$230 for the fee for the Form I–905 untilthe next biennial fee review, as requiredby the Chief Financial Officers Act of1990, Public Law 101–576, 104 Stat.2838.
What Are the Standards anOrganization Must Meet in Order ToObtain Authorization To IssueCertificates?This proposed rule lists the standardsan organization must substantially meetin order to be authorized to issuecertificates at § 212.15(k).
Anorganization seeking approval to issuecertificates or certified statementsshould submit evidence addressing eachof the standards.
These standards weredeveloped by HHS in order to ensurethat an organization meets therequirements contemplated by Congress.
In drafting these standards, HHS drewupon the legislative history to IIRIRA,and drew extensively from thestandards of the National Commissionfor Certifying Agencies, a nationallyrecognized body that accredits certifyingorganizations.
There are four guidingprinciples to the standards:
(1) The Attorney General should notapprove a credentialing organization,unless the organization is independentand free of material conflicts of interestregarding whether an alien receives avisa;
(2) The organization shoulddemonstrate an ability to evaluate boththe foreign credentials appropriate forthe profession, and the results ofexaminations for proficiency in theEnglish language appropriate for thehealth care field in which the alien willbe engaged;
(3) The organization should alsomaintain comprehensive and currentinformation on foreign educational
institutions, ministries of health, andforeign health care licensingjurisdictions; and
(4) If the health care field is one forwhich a majority of the States require apredictor examination (currently, this isdone only for nursing), the organizationshould demonstrate an ability toconduct the examination outside theUnited States.
Since the statute and the reportlanguage intend to ensure that aliensentering the United States for purposesof performing labor as a health careworker are of the same quality as UnitedStates trained workers, the HHS hasdetermined that this can be assured byrequiring that organizations issuingcertificates be held to a select group ofstandards.
The Service is concerned thatin the absence of strict standards,unqualified organizations may obtainauthorization from the Service to issuecertificates that could ultimately haveadverse consequences for health care inthe United States.
Since the provisionsof section 212(r) of the Act appear toshare with section 212(a)(5)(C) the goalof ensuring a high quality of health careservice in the United States, the Servicewill use the same standards toadjudicate applications fromcredentialing organizations under eitherprovision.
The Service welcomes commentsfrom the public and from interestedorganizations regarding the proposedstandards.
Specifically, the Service isconcerned that an organization seekingauthorization to issue certificates maymeet most, but not all of the proposedstandards.
The Service seeks commenton the question of whether aprospective credentialing organization’sinability to meet all of the proposedstandards should preclude the Servicefrom authorizing the organization toissue certificates.
Also, the Service seekspublic comment on the question ofwhether the proposed standards shouldbe considered as guidelines, or as strictcriteria that would preclude anorganization from qualifying.
Finally,the Service invites public comment onthe question of how a prospectivecredentialing organization can meet therequirement that it demonstrate that it isindependent and free of materialconflicts of interest regarding whetheran alien receives a visa.
How Will the Service MonitorOrganizations Authorized To IssueCertificates or Certified Statements?
The Service intends to develop aregulatory process to monitorcredentialing organizations, includingCGFNS.
This process will ensure that acredentialing organization continues tofollow the standards described in thisrule.
The Service proposes to reviewand reauthorize the credentialingorganizations every 5 years.
This ruleproposes that the Service will notify thecredentialing organization in writing ofthe results of the review andreauthorization.
If the Service developsadverse information with respect to theperformance of the organization, theService may institute terminationproceedings.
Comments from the publicregarding the frequency of review, e.
g.
,review as part of the 5-yearreauthorization, or an annual orbiannual review, the nature of thereview, and whether reviews, ifconducted separately fromreauthorization, should be targetedversus random, would be of greatassistance in the development of areview process.
In particular, as part of the reviewprocess, the Service proposes to assesswhether an authorized credentialingorganization has issued certificates in atimely manner so as to minimize anydelays that may affect an alien’s abilityto proceed with his or her applicationfor an immigration benefit, and to assesswhether the fee charged for a certificateunduly impairs an alien’s ability to seekan immigration benefit.
Accordingly,the Service seeks comments on whatmight constitute a reasonable period oftime within which a credentialingorganization would be required to issuecertificates, and regarding whatmethodology the Service should use inassessing whether a fee constitutes anobstacle to obtaining an immigrationbenefit.
How will the Service terminate anOrganization’s Authorization?
Upon notification that an authorizedcredentialing organization has beenconvicted, or the directors or officers ofan authorized credentialing organizationhave individually been convicted of aviolation of state or federal laws, suchthat the fitness of the organization tocontinue to issue certificates is calledinto question, the Service shallautomatically terminate authorization toissue certificates via notice to thecredentialing organization.
Upon receipt of information that thecredentialing organization is no longercomplying with the standards containedin § 212.
15(k), or upon receipt ofinformation that termination of theorganization’s approval is otherwisewarranted, the Service will issue aNotice of Intent to TerminateAuthorization to Issue Certificates toForeign Health Care Workers to thecredentialing organization.
Thecredentialing organization will be given30 days from the date of the Notice ofIntent to Terminate Authorization toIssue Certificates to Foreign Health CareWorkers to rebut or cure the allegationsmade in the Service’s notice.
Thirty days after the date of theNotice of Intent to Terminate, theService will request an opinion fromHHS regarding whether theorganization’s authorization should beterminated.
The Service shall accordHHS’ opinion great weight indetermining whether the authorizationshould be terminated.
Afterconsideration of the organization’sresponse, if any, to the Notice of Intentto Terminate, and of HHS’ opinion, theService will provide the organizationwith a written decision.
The Service’s decision terminating anorganization’s authorization may beappealed to the Administrative AppealsOffice pursuant to 8 CFR 103.
3.
Termination of credentialing status willoccur on the date of the decision andremain in effect until and unless theterminated organization reapplies, withfee, for credentialing status and isapproved, or its appeal of thetermination decision is sustained by theAdministrative Appeals Office.
There isno waiting period for an organization tore-apply for credentialing status.
What Actions Will the Service TakeWhen It Finds That an Alien CertificateHolder Was Not Eligible To Receive theCertificate at the Time That It WasIssued?A credentialing organization mustdevelop policies and procedures forrevocation of certificates at any time ifit finds that the certificate holder wasnot eligible to receive the certificate atthe time it was issued.
These policiesand procedures include notification tothe Service that a certificate has beenrevoked.
The Service may then take anyappropriate action, including revocationof the petition, and initiation of removalproceedings against the individual alienunder section 240 of the Act.
What Will the Foreign Health CareWorker Certificate or Foreign NursesCertified Statement Look Like?The proposed regulation at § 212.
15(f)describes the content of the certificate.
The proposed regulation at § 212.
15(h)describes the content of the certifiedstatement.
They will generally containthe following information:
(1) the name, designated point ofcontact to verify the validity of thecertificate, address, and telephonenumber of the certifying organization;
(2) the date the certificate was issued;
(3) the health care occupation forwhich the certificate was issued; and
(4) the alien’s name, and date andplace of birth.
It should be noted that the certificateor certified statement does notconstitute professional authorization topractice in that health care occupation.
What Are the Requisite EnglishLanguage Scores for Certification?
HHS, in consultation with DoED, isrequired to establish a level ofcompetence in oral and written Englishappropriate for the health care field inwhich the alien will be engaged, asshown by an appropriate score on oneor more nationally recognized,commercially available, standardizedassessments of the applicant’s ability tospeak and write.
The statute vests theSecretary of HHS with the ‘‘solediscretion’’ to determine thestandardized tests and appropriateminimum scores.
In developing theEnglish language test scores, HHSconsulted with DoED and appropriatehealth care professional organizations.
HHS also examined a study sponsoredin part by NBCOT entitled ‘‘Standardsfor Examinations Assessing English as aSecond Language.
’’ The scores reflectthe current industry requirements forparticular health care occupations.
HHS has identified four testingservices which conduct a nationallyrecognized, commercially available,standardized assessment ascontemplated in the statute.
The fourtesting services are the EducationalTesting Service (ETS), the MichiganEnglish Language Assessment Battery(MELAB), the Test of English inInternational Communication (TOEIC)Service International, and theInternational English Language TestingSystem (IELTS).
The proposedregulation at § 212.
15(g) lists the testsand appropriate scores as determined byHHS for each occupation.
As an alternative to listing the testsand appropriate scores by regulation orinterim rule, the Service is consideringdesignating, by a separate andcomprehensive public notice in theFederal Register, the list of tests andappropriate scores.
The Service wouldalso maintain this list on its website athttp://www.
ins.
gov.
This method wouldallow the Service to update the list oftests and scores more quickly thanthrough publication of interim rules.
The Service seeks comment on whetherthis alternative method of providing thepublic with the lists of tests andappropriate scores would better servethe public.
Other testing services are encouragedto submit information concerning theirtesting services to the Service, for HHSand DoED review, and credentialingorganizations are encouraged to developa test specifically designed to measureEnglish language skills and to seek HHSapproval of the test.
This rule providesthat the Service will notify the public ofnew approved testing services in thefuture by publishing an interim rule inthe Federal Register.
HHS has advised the Service thatgraduates of health profession programsin Australia, Canada (except Quebec),Ireland, New Zealand, the UnitedKingdom, and the United States aredeemed to have met the Englishlanguage requirements.
HHS hasdetermined that aliens who havegraduated from these programs have therequisite competency in oral andwritten English.
The level of Englishthat the graduates of these healthprofession programs would need tograduate is deemed equivalent to thelevel that would be demonstrated byachieving the minimum passing scoreon the tests previously described.
Nurses who are eligible to present analternate certified statement undersection 212(r) of the Act also bydefinition have satisfied the Englishlanguage requirements.
Finally, HHS has advised the Servicethat the MELAB will no longer offer theEnglish-speaking portion of its testoutside the United States and Canada.
As a result, individuals who seek tomeet the English language requirementswill be required to do one of thefollowing:
(1) Take the three tests offered byETS; or
(2) Take the TOEIC offered by TOEICService International, in addition to thetest of spoken English and the test ofwritten English offered by ETS; or
(3) Take Parts 1, 2, and 3 of MELABoverseas and then take the test ofspoken English offered by ETS; or
(4) Take Parts 1, 2, and 3 of MELABoverseas and then take the test ofspoken English in the United States orCanada; or(5) Take the IELTS examination.
Regulatory Flexibility ActThe Commissioner of the Immigrationand Naturalization Service, inaccordance with the RegulatoryFlexibility Act (5 U.
S.
C.
605(b)), hasreviewed this regulation and, byapproving it, certifies that this rule willnot have a significant economic impacton a substantial number of smallentities.
It is projected that there will be,at most, 21 small businesses that applyto the Service to issue certificates forhealth care workers.
Although thesesmall entities are required to pay a feewhen submitting their applications,these small entities may recoup thisexpense if they charge aliens who mustobtain a foreign health care workercertificate.
The Service invites commenton whether and how this rule may havea significant impact on small entities.
Unfunded Mandates Reform Act of1995This rule will not result in theexpenditure by State, local and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or morein any one year, and it will notsignificantly or uniquely affect smallgovernments.
Therefore, no actions weredeemed necessary under the provisionsof the Unfunded Mandates Reform Actof 1995.
Small Business Regulatory EnforcementFairness Act of 1996This rule is not a major rule asdefined by section 804 of the SmallBusiness Regulatory Enforcement Act of1996.
This rule will not result in anannual effect on the economy of $100million or more; a major increase incosts or prices; or significant adverseeffects on competition, employment,investment, productivity, innovation, oron the ability of United States-basedcompanies to compete with foreignbasedcompanies in domestic andexport markets.
Executive Order 12866This rule is considered by theDepartment of Justice, Immigration andNaturalization Service, to be a‘‘significant regulatory action’’ underExecutive Order 12866, section 3(f),Regulatory Planning and Review.
Accordingly, this regulation has beensubmitted to the Office of Managementand Budget (OMB) for review.
Executive Order 13132The rule will not have substantialdirect effects on the States, on therelationship between the NationalGovernment and the States, or on thedistribution of power andresponsibilities among the variouslevels of government.
Therefore, inaccordance with section 6 of ExecutiveOrder 13132, it is determined that thisrule does not have sufficient federalismimplications to warrant the preparationof a federalism summary impactstatement.
Executive Order 12988 Civil JusticeReformThis rule meets the applicablestandards set forth in sections 3(a) and3(b)(2) of Executive Order 12988.
Paperwork Reduction Act of 1995The information collectionrequirements contained in this rule(Form I–905 (OMB Control Number1115–0238) and the informationrequired on the health care certificate orcertified statement (OMB ControlNumber 1115–0226)) are being revised.
Accordingly, these revisions will besubmitted to the Office of Managementand Budget for review in accordancewith the Paperwork Reduction Act.
List of Subjects8 CFR Part 103Administrative practice andprocedure, Authority delegations(Government Agencies), Freedom ofinformation, Privacy, Reporting andrecordkeeping requirements, Suretybonds.
8 CFR Part 212Administrative practice andprocedures, Aliens, Immigration,Passports and visas, Reporting andrecordkeeping requirements.
8 CFR Part 214Administrative practice andprocedures, Aliens, Employment,Foreign officials, Health professions,Reporting and recordkeepingrequirements, Students.
8 CFR Part 245Aliens, Immigration, Reporting andrecordkeeping requirements.
8 CFR Part 248Aliens, Reporting and recordkeepingrequirements.
8 CFR Part 299Immigration, Reporting andrecordkeeping requirements.
Accordingly, chapter I of title 8 of theCode of Federal Regulations is proposedto be amended as follows:PART 103—POWERS AND DUTIES OFSERVICE OFFICER; AVAILABILITY OFSERVICE RECORDS1.
The authority citation for part 103continues to read as follows:Authority: 5 U.S.C. 552, 522a; 8 U.S.C.1101, 1103, 1304, 1356; 31 U.S.C. 9701; E.O.12356, 47 FR 14874, 15557, 3 CFR, 1982Comp., p.166; 8 CFR part 2.2.
Section 103.1 is amended by:
a. Removing the word ‘‘and’’ at theend of paragraph (f)(3)(iii)(NN);
b. Removing the period at the end ofparagraph (b)(3)(iii)(oo) and adding asemicolon and the word ‘‘and’’ in it’splace, and adding and reserving paragraph (f)(3)(iii)(PP); and by
c. Adding paragraphs (f)(3)(iii)(QQ)and (RR).
The additions read as follows:§ 103.1 Delegations of authority.
* * * * *(f) * * *(3) * * *(iii) * * *(PP) Reserved.
(QQ) Application for authorization toissue certificates to foreign health careworkers under 8 CFR part 215; and(RR) Termination of authorization toissue certificates to foreign health careworkers under 8 CFR part 215.
* * * * *3.
Section 103.
7(b)(1) is amended byadding a new entry for the ‘‘Form I–905’’ to the list in alpha/numericsequence, to read as follows:§ 103.
7 Fees.
* * * * *(b) * * *(1) * * ** * * * *Form I–905, Application forAuthorization to Issue Certification forHealth Care Workers—$230.
00.
* * * * *PART 212—DOCUMENTARYREQUIREMENTS: NONIMMIGRANTS;WAIVERS; ADMISSION OF CERTAININADMISSIBLE ALIENS; PAROLE4.
The authority citation for part 212continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182,1184, 1187, 1225, 1226, 1227; 8 CFR part 2.5.
Section 212.
15 is revised to read asfollows:§ 212.
15 Certificates for foreign healthcare workers.
(a) General.
(1) Any alien who seeks to enter theUnited States for the primary purpose ofperforming labor in a health careoccupation listed in paragraph (c) of thissection is inadmissible unless the alienpresents a certificate from acredentialing organization, listed inparagraph (e) of this section.
(2) In the alternative, an eligible alienwho seeks to enter the United States forthe primary purpose of performing laboras a nurse may present a certifiedstatement as provided in paragraph (h)of this section.
(3) A certificate or certified statementdescribed in this section does notconstitute professional authorization topractice in that health care occupation.
(b) Inapplicability of the ground ofinadmissibility.
This section does notapply to:(1) Physicians;(2) Aliens seeking admission to theUnited States to perform services in anon-clinical health care occupation.
Anon-clinical care occupation is one inwhich the alien is not required toperform direct or indirect patient care.
Occupations which are considered to benon-clinical include, but are not limitedto, medical teachers, medicalresearchers, and managers of health carefacilities;(3) The spouse and dependentchildren of any immigrant ornonimmigrant alien;(4) Any alien applying for adjustmentof status to that of a permanent residentunder any provision of law other thanunder section 245 of the Act, or anyalien who is seeking adjustment ofstatus under section 245 of the Act onthe basis of a relative visa petitionapproved under section 203(a) of theAct, or any alien seeking adjustment ofstatus under section 245 of the Act onthe basis of an employment-basedpetition approved pursuant to section203(b) of the Act for employment thatdoes not fall under one of the coveredhealth care occupations listed inparagraph (c) of this section.
(c) Covered health care occupations.
With the exception of the aliensdescribed in paragraph (b) of thissection, this section applies to any alienseeking admission to the United Statesto perform labor in one of the followinghealth care occupations, regardless ofwhere he or she received his or hereducation or training:(1) Licensed Practical Nurses,Licensed Vocational Nurses, and