[Federal Register Volume 64, Number 83 (Friday, April 30, 1999)]
[Rules and Regulations]
[Pages 23174-23178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10819]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS 1979-99]
RIN 1115-AF43


Additional Authorization to Issue Certificates for Foreign Health 
Care Workers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The interim rule amends the regulations of the Immigration and 
Naturalization Service (Service) to grant, on a temporary basis, 
authorization to the Commission on Graduates of Foreign Nursing Schools 
(CGFNS) to issue certificates to foreign health care workers in the 
occupations of occupational therapy and physical therapy. This rule 
also grants the Foreign Credentialing Commission on Physical Therapy 
(FCCPT) the authority to issue certificates to foreign-trained physical 
therapists. The rule is written in response to formal requests by CGFNS 
and FCCPT to obtain permission to issue certificates to foreign-trained 
workers coming to the United States in the occupations of occupational 
therapy and physical therapy on a permanent basis. This rule ensures 
that foreign-trained occupational therapists and physical therapists 
have the same training, education, and licensure as similarly employed 
United States workers.


[[Page 23175]]


    This interim rule applies only to aliens seeking admission as 
immigrants to perform services in these two health care occupations. 
Aliens seeking temporary admission to the United States as nonimmigrant 
aliens to perform services in these or other health care occupations 
are not covered by this interim rule. The Service and the Department of 
State temporarily have waived the certification requirement of section 
343 of the Illegal Immigration Reform and Immigrant Responsibility Act 
(IIRIRA) for aliens coming to the United States as nonimmigrant health 
care workers. This policy will continue until a final rule is published 
which fully implements section 343.

DATES: Effective date: This interim rule is effective June 29, 1999.

    Comment date: Written comments must be submitted on or before June 
29, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 
20536. To ensure proper handling, please reference the INS No. 1979-99 
on your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer, 
Benefits Division, Immigration and Naturalization Service, 425 I Street 
NW., Room 3214, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

What is Section 343 of IIRIRA?

    On September 30, 1996, President Clinton signed the Illegal 
Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. 
104-208. Section 343 of IIRIRA created new ground of inadmissibility at 
section 212(a)(5)(C) of the Immigration and Nationality Act (Act) for 
aliens coming to the United States to perform labor in certain health 
care occupations.
    Pursuant to section 343, any alien coming to the United States for 
the purpose of performing labor as a health care worker, other than as 
a physician, is inadmissible unless the alien presents to the consular 
officer, or, in the case of adjustment of status, the Attorney General, 
a certificate from the CGFNS, or an equivalent independent 
credentialing organization approved by the Attorney General in 
consultation with the Secretary of Health and Human Services (HHS).
    Under section 343, the certificate must verify 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 classification specified in the application; 
are comparable with that required for an American health care worker; 
are authentic and, in the case of a license, is 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 (DOE), 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, 
finally, (3) if a majority of states licensing the profession in which 
the alien intends to work recognize a test predicting the alien's 
success on the profession's licensing or certification examination, the 
alien has passed such a test, or has passed such an examination.
    On October 14, 1998, the Service published an interim rule in the 
Federal Register at 63 FR 55007 that implemented certain portions of 
section 343 of IIRIRA as it related to occupational therapists and 
nurses coming to the United States on a permanent basis. For purposes 
of this discussion, the interim rule published on October 14, 1998, is 
referenced as ``the first interim rule.''

What provisions were contained in the Service's interim rule 
published on October 14, 1998?

    In the first interim rule, which became effective on December 14, 
1998, the Service granted authorization to CGFNS and the National Board 
for Certification in Occupational Therapy (NBCOT) to issue certificates 
to foreign-trained health care workers in the fields of nursing and 
occupational therapy, respectively. the rule, however, limited the 
authority of CGFNS and the NBCOT to the issuance of certificates to 
aliens coming permanently to the United States. In addition, the 
authority granted to CGFNS and NBCOT to issue certificates was granted 
on a temporary basis until the Service published a final rule 
implementing all the provisions of section 343 of IIRIRA.

What criteria did the Service use in the first interim rule to grant 
authorization to CGFNS and NBCOT to issue certificates?

    The first interim rule provided that an organization must meet two 
criteria in order to be granted authorization to issue certificates 
pursuant to section 343 of IIRIRA. First, the organization had to 
establish that there was a sustained level of demand for foreign-
trained workers in the occupation and, second, the organization has to 
show that it had an established track record in providing credentialing 
services in the occupation.
    For purposes of the first interim rule, the Service defined the 
term ``sustained level of demand'' as the presence of an existing 
demand for foreign health care workers in a particular occupation that 
is expected to continue in the foreseeable future.
    The first interim rule defined the term ``organization with an 
established track record'' as an organization that has a record of 
issuing actual certificates, or documents similar to a certificate, 
that are generally accepted by the state regulatory bodies as 
certifying that an individual has met certain minimal qualifications.
    The rule also provided that, during the period of time that the 
first interim rule was in effect, the Service would entertain any 
requests to issue certificates from an organization that could 
demonstrate that it met the two criteria.

What is the purpose of this interim rule?

    The purpose of this interim rule is to provide notice that the 
Service has granted CGFNS the authority to issue certificates pursuant 
to section 343 of IIRIRA, on a temporary basis, to foreign-trained 
health care workers coming to the United States as immigrants or 
applicants for adjustment of status to work in the occupations of 
occupational therapist and physical therapist. This rule also provides 
notice that the Service has granted FCCPT the authority to issue 
certificates pursuant to section 343 of IIRIRA, on a temporary basis, 
to foreign-trained health care workers coming to the United States as 
immigrants, or applicants for adjustment of status to work in the 
occupation of physical therapist.
    This rule does not give authorization to CGFNS or FCCPT to issue 
certificates to aliens seeking temporary admission to the United States 
as nonimmigrant aliens to perform services in these or other health 
care occupations. Aliens' applications for admission as nonimmigrants 
will be processed pursuant to the Service's temporary policies that 
were described in the preamble to the Service's first interim rule. The 
authorization provided for in this interim rule remains in effect until 
the publication of a final rule.

[[Page 23176]]

    This interim rule also lists the passing scores for the English 
language tests for the occupation of physical therapist.

Have CGFNS and FCCPT met the criteria to obtain authorization 
described in the first interim rule?

    Pursuant to the criteria described in the first interim rule, CGFNS 
and FCCPT have made formal applications to the Service seeking 
authorization to issue certificates to foreign health care workers. 
CGFNS has applied for authorization to issue certificates to foreign-
trained health care workers in the occupations of occupational 
therapist and physical therapist. FCCPT has applied for authorization 
to issue certificates in the occupation of physical therapist. The 
applications were supported by evidence addressing the two criteria 
described in the first interim rule.
    In order to secure more current and detailed information relating 
to issues in the field of health care, the Service sought the opinion 
of the Secretary of HHS as to whether CGFNS and FCCPT met the two 
criteria described in the first interim rule. Based on the Secretary's 
opinion and the evidence submitted, the Service finds CGFNS has met the 
two criteria discussed in the rule for the occupations of occupational 
therapist and physical therapist. Likewise, FCCPT has met the two 
criteria for the occupation of physical therapist.

Does CGFNS have a proven track record?

    The Service finds that CGFNS has an established track record in 
issuing certificates because it has experience in administering the 
examination that predicted success of foreign-trained educated nurses 
under the previous H-1A visa category. In addition, CGFNS has 
experience beyond nursing with regard to educational comparability and 
credentials evaluation. CGFNS, through their credential evaluation 
service, has evaluated foreign credentials, including educational 
degrees and foreign licenses, for psychiatric technicians, physician 
assistants, emergency medical technicians, and other occupations.
    The CGFNS has an extensive database covering health-related 
academic programs in foreign countries, much of which is applicable 
beyond nursing. Finally, with the establishment of ``Professional 
Standards Committees,'' CGFNS has developed certification standards 
that may be used to assess comparability for the occupation of physical 
therapy and occupational therapy.

Does FCCPT have a proven track record?

    The FCCPT is the credentialing organization of the Federation of 
State Boards of Physical Therapy (the Federation). The membership of 
the Federation, established 1986, includes all of the state regulatory 
bodies responsible for the examination and licensure of physical 
therapist in all 50 states. The Federation develops and recommends 
educational, English language proficiency, and other standards adopted 
by state regulatory agencies.
    The FCCPT currently performs credential evaluations for individuals 
entering on temporary visas that are accepted by 17 states. As part of 
the evaluation, the organization reviews English language proficiency, 
licensure status and proof that a current license is in good standing 
with the licensure authorities, and, finally, equivalency of education. 
Based on the credentials evaluation provided by FCCPT, these states 
will issue temporary licenses pending the taking of the National 
Physical Therapy Examination.
    Further, the Federation developed the Course Work Evaluation Tool 
to establish educational standards for credentialing foreign-educated 
physical therapists that are currently used by 19 states. The 
Federation worked with the NBCOT to jointly develop common English 
language proficiency standards, including the identification of 
necessary examinations and passing scores for English language 
proficiency examinations administered by the Educational Testing 
Service. HHS adopted these standards in its recommendation to the 
Attorney General regarding appropriate English language proficiency 
tests scores for physical therapists and occupational therapists as set 
forth in the first interim rule.

Is There a Sustained Level of Demand for Physical Therapists?

    According to data compiled by the Department of Labor, the number 
of job openings for physical therapists continues to remain high. The 
second highest number of job openings certified under the H-1B program 
is for the occupation of therapist. Physical therapists, in turn, 
comprise the largest component of this occupation. Based on these 
findings, the Service has determined that the second criteria relating 
to the demand of foreign-trained workers for the occupation of physical 
therapists has been met.
    The Service previously determined in the first interim rule that 
there was a sustained level of demand in the field of occupational 
therapy for foreign-trained health care workers.
    Based on the foregoing, it is the decision of the Service that 
CGFNS should be granted authorization to issue certificates to foreign 
health care workers in the fields of occupational therapist and 
physical therapist subject to the terms and conditions of the first 
interim rule. Further, the FCCPT, as the credentialing unit associated 
with the Federation, is granted the authority to issue certificates to 
foreign health care workers in the field of physical therapist.

What are the Passing English Test Scores for Physical Therapists?

    The HHS has determined that physical therapists must obtain the 
following scores on the English tests administered by the Educational 
Testing Service (ETS): Test of English as a Foreign Language (TOEFL): 
paper-based 560, computer-based 220; Test of Written English (TWE): 
4.5; Test of Spoken English (TSE): 50.
    HHS has advised that the Michigan English Language Assessment 
Battery (MELAB) is not an appropriate test for physical therapists or 
occupational therapists. HHS has advised that MELAB scores are not 
acceptable to the licensing and accrediting organizations involved with 
these two occupations. In addition, the exemptions for the English 
language tests described in Sec. 212.15(g)(2) apply to the occupation 
of physical therapy.

Does this Interim Rule Alter any of the Service's Policies With 
Respect to the Admission of Nonimmigrant Health Care Workers?

    No. This rule merely grants authorization to CGFNS and the FCCPT to 
issue certificates to foreign-trained health care workers seeking 
admission as immigrants or adjustment of status in two additional 
occupations. It does not alter any of the Service's policies with 
respect to the admission of nonimmigrant aliens coming to perform 
services in health care occupations that were described in the first 
interim rule.

How ddoes This Rule Amend the Existing Regulation?

    This interim rule amends the regulation at Sec. 212.15(c) by adding 
the occupation of physical therapist to the list of occupations.
    This interim rule also amends the regulation at Sec. 212.15(e) to 
add the occupations of physical therapist and occupational therapist to 
the list of occupations for which CGFNS can issue certificates. This 
rule also adds FCCPT

[[Page 23177]]

as an organization authorized to issue certificates in the occupation 
of physical therapist.
    Finally, this regulation amends the regulation at Sec. 212.15(g) to 
list the passing English scores for the occupation of physical 
therapist.

Good Cause Exception

    This interim rule is effective 60 days from the date of publication 
in the Federal Register. The Service invites post-promulgation comments 
and will address any such comments in a proposed rule or the resulting 
final rule. For the following reasons, the Service finds that good 
cause exists for adopting this rule without the prior notice and 
comment period ordinarily required by 5 U.S.C. 553. Although section 
343 went into effect on September 30, 1996, due to the complexities of 
the requirements of section 343, and the need to coordinate the 
interests and concerns of a great number of Federal agencies, the 
health care sector, and members of the affected public, the Service is 
still in the process of developing a more comprehensive proposed rule 
to implement section 343 in order to solicit comment from the public. A 
continued delay in the implementation of this provision in the 
particular manner set out in this interim rule, however, could have a 
negative effect on the availability of health care in this country, 
particularly in medically under-served areas for nursing and 
occupational therapy, and will create a further backlog with respect to 
pending applications filed by aliens seeking to immigrate to perform 
labor in a health care occupation.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with 5 U.S.C. 605(b), has reviewed this regulation and, by 
approving it, certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
has been drafted in a way to minimize the economic impact that it has 
on small business while meeting its intended objective. The health care 
workers who will be issued certificates are not considered small 
entities as the term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget (OMB) for review.

Executive Order 12612

    The regulation adopted herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of E.O. 12988.

List of Subjects 8 CFR Part 212

    Administrative practice and procedures, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, part 212 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.

2. Section 212.15 is amended by:
    a. Revising paragraph (c) introductory text;
    b. Adding a new paragraph (c)(3);
    c. Revising paragraph (e); and by
    d. Revising paragraph (g)(4)(i), to read as follows:


Sec. 212.15  Certificates for foreign health care workers.

* * * * *
    (c) Occupations affected by this provision. With the exception of 
the aliens described in paragraph (b) of this section, any alien 
seeking admission to the United States as an immigrant or any alien 
applying for adjustment of status to a permanent resident to perform 
labor in one of the following health care occupations, regardless of 
where he or she received his or her education or training, is subject 
to this provision:
* * * * *
    (3) Physical Therapists.
* * * * *
    (e) Organizations approved by the Service to issue certificates for 
health care workers.
    (1) The Commission on Graduates of Foreign Nursing Schools is 
authorized to issue certificates under section 343 for the occupations 
of nurse, physical therapist, and occupational therapist.
    (2) The National Board for Certification in Occupational Therapy is 
authorized by the Service to issue certificates under section 343 for 
the occupation of occupational therapist.
    (3) The Foreign Credentialing Commission on Physical Therapy is 
authorized by the Service to issue certificates under section 343 for 
the occupation of physical therapist.
* * * * *
    (g) * * *
    (4) Passing scores for various occupations. (i) Occupational and 
physical therapists. An alien seeking to perform labor in the United 
States as an occupational therapist or physical therapist must obtain 
the following scores on the English tests administered by ETS: Test Of 
English as a Foreign Language (TOEFL), Paper-Based 560, Computer-Based 
220; Test of Written English (TWE): 4.5; Test of Spoken English (TSE): 
50. Certifying organizations shall not accept the results of the MELAB 
for the occupation of occupational therapist or physical therapist. 
Aliens seeking to obtain a certificate to work as an occupational or 
physical therapist must take the test

[[Page 23178]]

offered by the ETS. The MELAB scores are not acceptable for these 
occupations.
* * * * *
    Dated: April 27, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-10819 Filed 4-27-99; 4:39 pm]
BILLING CODE 4410-10-M