[Federal Register Volume 68, Number 143 (Friday, July 25, 2003)]
[Rules and Regulations]
[Pages 43901-43921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18710]



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  Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003 / Rules 
and Regulations  

[[Page 43901]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 214, 245, 248 and 299

[CIS No. 2080-00]
RIN 1615-AA10


Certificates for Certain Health Care Workers

AGENCY: Department of Homeland Security.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Department of Homeland Security (DHS) 
regulations to provide that organizations previously authorized to 
issue health care worker certifications will continue to be permitted 
to issue certifications for a temporary period of time, and to set up 
procedures for authorizing organizations to issue the certificates, 
including an appeals process in the event that requests for 
authorization are denied. In addition, this rule adds the requirement 
that all nonimmigrants coming to the United States for the primary 
purpose of performing labor as health care workers, including those 
seeking a change of nonimmigrant status, be required to submit a health 
care worker certification. Publication of this 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. On March 1, 2003, the former 
Immigration and Naturalization Service (Service) transferred from the 
Department of Justice to the DHS, pursuant to the Homeland Security Act 
of 2002 (Public Law 107-296). Accordingly, the Service's adjudications 
functions transferred to the Bureau of Citizenship and Immigration 
Services (BCIS) of the DHS, and the Service's inspections functions 
transferred to the Bureau of Customs and Border Protection (CBP). The 
DHS now has the authority to make revisions to what were previously 
Service regulations. For the sake of simplicity, this rule will no 
longer refer to the Service but rather DHS, even though meetings and 
publication of the previous interim rules, publication of the proposed 
rule, and receipt of comments took place under the Service prior to 
March 1, 2003.

DATES: This final rule is effective on September 23, 2003.

FOR FURTHER INFORMATION CONTACT: Mari F. Johnson, Adjudications 
Officer, Office of Adjudications, Bureau of Citizenship and Immigration 
Services, Department of Homeland Security, 425 I Street, NW., Room 
3214, Washington, DC 20536, telephone (202) 353-8177.

SUPPLEMENTARY INFORMATION: A proposed rule was published in the Federal 
Register on October 11, 2002, at 67 FR 63313. The rule proposed to 
implement section 343 of the Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRIRA) of 1996, Public Law 104-208, 110 Stat. 
3009, 636-37 (1996), now codified at section 212(a)(5)(C) of the 
Immigration and Nationality Act (Act), 8 U.S.C. 1182(a)(5)(C), and 
section 4(a) of the Nursing Relief for Disadvantaged Areas Act of 1999 
(NRDAA), Public Law 106-95, codified at section 212(r) of the Act, 8 
U.S.C. 1182(r).

What Are the Provisions of Sections 212(a)(5)(C) and (r) of the 
Immigration and Nationality Act (Act)?

    Section 343 of IIRIRA created a new ground of inadmissibility. It 
provides that, subject to section 212(r) of the Act, an alien 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 
Foreign Nursing Schools (CGFNS), or an equivalent independent 
credentialing organization approved by the Attorney General in 
consultation with the Secretary of the Department of Health and 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 classification specified 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 an applicant's 
success on the profession's licensing or certification examination, the 
alien has passed such a test, or has passed such an examination.
    Section 212(r) of the Act created an alternative certification 
process for aliens who seek to enter the United States for the purpose 
of performing labor as a nurse. In lieu of a certification under the 
standards of section 212(a)(5)(C) of the Act, an alien nurse can 
present to the consular officer (or in the case of an adjustment of 
status, the Attorney General) a certified statement from CGFNS (or an 
equivalent independent credentialing organization approved for the 
certification of nurses) that:
    (1) The alien has a valid and unrestricted license as a nurse in a 
state where the alien intends to be employed and that such state 
verifies that the foreign licenses of alien nurses are authentic and 
unencumbered;
    (2) The alien has passed the National Council Licensure Examination 
(NCLEX); and
    (3) The alien is a graduate of a nursing program that meets the 
following requirements:
    (i) The language of instruction was English; and
    (ii) The nursing program was located in a country which:
    (A) Was designated by CGFNS no later than 30 days after the 
enactment of the NRDAA, based on CGFNS' assessment that designation of 
such country is justified by the quality of nursing education in that 
country, and the English language proficiency of

[[Page 43902]]

those who complete such programs in that country; or
    (B) Was designated on the basis of such an assessment by unanimous 
agreement of CGFNS and any equivalent credentialing organizations which 
the Attorney General has approved for the certification of nurses; and
    (iii) The nursing program:
    (A) Was in operation on or before November 12, 1999; or
    (B) Has been approved by unanimous agreement of CGFNS and any 
equivalent credentialing organizations which the Attorney General has 
approved for the certification of nurses.
    CGFNS designated the following countries for purposes of this 
alternate certification: Australia, Canada, Ireland, New Zealand, South 
Africa, the United Kingdom, and the United States.

How Were These Requirements Implemented?

    Section 212(a)(5)(C) of the Act became effective upon enactment on 
September 30, 1996. Shortly thereafter, the DHS met with HHS, the 
Department of Labor (DOL), the Department of Education (DoED), the 
Department of Commerce (DOC), the Office of the United States Trade 
Representative (USTR), and the Department of State (DOS) to reach 
consensus on the best approach for implementation of the new provision. 
The DHS also met with interested private organizations including CGFNS, 
the American Occupational Therapists Association, the National Board 
for Certification in Occupational Therapy (NBCOT), the Federated State 
Board of Physical Therapy, and the American Physical Therapy 
Association.
    Section 343 of IIRIRA and NRDAA, was implemented via three interim 
rules published in the Federal Register as follows:
    (1) Interim Procedures for Certain Health Care Workers, 63 FR 55007 
(October 14, 1998) (codified at 8 CFR 212.15 and 245.14) (the first 
Interim Rule);
    (2) Additional Authorization to Issue Certificates for Foreign 
Health Care Workers, 64 FR 23174 (April 30, 1999) (amending 8 CFR 
212.15) (the second Interim Rule); and
    (3) Additional Authorization to Issue Certificates for Foreign 
Health Care Workers; Speech Language Pathologists and Audiologists, 
Medical Technologists and Technicians, and Physician Assistants, 66 FR 
3440 (January 16, 2001) (amending 8 CFR 212.15) (the third Interim 
Rule).
    The supplementary information pertaining to the October 11, 2002, 
proposed rule describes these earlier rules in more detail.
    The organizations that have already been granted authority to issue 
certifications under these interim rules, other than CGFNS, shall be 
required to seek authority to issue certifications under the provisions 
of this final rule. However, those organizations will retain interim 
authority to continue issuing certificates and certified statements 
provided that they submit a request for continued authorization on Form 
I-905, Application for Authorization to Issue Health Care Worker 
Certificates, on or before January 27, 2004. and during the period that 
the Form I-905 is pending adjudication with the DHS. The DHS will not 
require CGFNS to apply for authorization to issue certificates or 
certified statements for those seven health care occupations named in 
the legislative history to IIRIRA. However, CGFNS will be required to 
submit information regarding its certification processes via filing of 
Form I-905 without fee with the Director, Nebraska Service Center, on 
or before January 27, 2004. The DHS will review CGFNS' Form I-905 for 
content of the certificates for the seven health care occupations, and 
content of certified statements for nurses, and to ensure compliance 
with the universal standards set forth in this rule. Like other 
credentialing organizations, CGFNS will also be subject to ongoing 
review by the DHS, and termination of credentialing status for 
noncompliance with this rule. Further, the DHS will terminate the 
authority of any organization currently authorized to issue 
certificates or certified statements if the organization does not 
submit an application or provide information on Form I-905 on or before 
January 27, 2004.

What Were the Provisions of the First Interim Rule?

    The DHS in consultation with HHS initially identified, on the basis 
of the legislative history, seven categories of health care workers 
subject to the provisions of section 212(a)(5)(C) of the Act. See H.R. 
CONF. REP. NO. 104-828 at 227 (1996). The seven categories are nurses, 
physical therapists, occupational therapists, speech-language 
pathologists, medical technologists (also known as clinical laboratory 
scientists), medical technicians (also known as clinical laboratory 
technicians) and physician assistants. See 63 FR at 55008.
    In the first Interim Rule, CGFNS and the NBCOT were authorized to 
issue certificates to immigrant nurses and occupational therapists 
respectively, established the appropriate English language competency 
levels for foreign nurses and occupational therapists, and specified 
exemptions from English language proficiency testing.
    The first Interim Rule applied only to immigrants. The DHS 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 worker certification 
requirement for nonimmigrant health care workers until promulgation of 
final implementing regulations. The DHS and DOS exercised their waiver 
discretion after carefully considering the complexity of the 
implementation issues, including how the health care certificate 
requirements affect United States obligations under international 
agreements and the need for health care facilities across the country 
to remain fully staffed and provide a high quality of service to the 
public. The waiver of inadmissibility applied to nonimmigrant health 
care workers already in possession of nonimmigrant visas and visa 
exempt aliens, including Canadians applying for classification under 
section 214(e) of the Act, 8 U.S.C. 1184(e) Trade NAFTA (TN) 
classification.

What Were the Provisions of the Second Interim Rule?

    In the second Interim Rule, CGFNS was temporarily authorized to 
issue certificates to immigrant occupational therapists and physical 
therapists, it also temporarily authorized the Foreign Credentialing 
Commission on Physical Therapy (FCCPT) to issue certificates to 
immigrant physical therapists, and established the appropriate English 
language competency levels for physical therapists. The DHS, in 
consultation with HHS, found that both CGFNS and FCCPT met the 
``established track record'' criterion, and concluded that there was a 
sustained level of demand for occupational therapists and physical 
therapists.

What Were the Provisions of the Third Interim Rule?

    In the third Interim Rule, CGFNS was temporarily authorized to 
issue certificates to immigrant speech-language pathologists and 
audiologists, medical technologists (also known as clinical laboratory 
scientists), physician assistants, and medical technicians (also known 
as clinical laboratory technicians), listed the passing scores for the 
English language tests for those health care occupations, and amended 
the regulations concerning which organizations may administer the 
English language tests. The DHS also modified the criteria it had used 
in the first and second Interim Rules to

[[Page 43903]]

temporarily authorize organizations to issue certificates to immigrant 
health care workers. CGFNS was found to have an established track 
record in issuing certificates for the additional occupations.

What Were the Provisions of the H-1C Interim Rule Published on June 11, 
2001?

    A related interim rule was published in response to the passage of 
the NRDAA, Petitioning Requirements for the H-1C Nonimmigrant 
Classification under Public Law 106-95, 66 FR 31107 (June 11, 2001) 
(amending 8 CFR 214.2(h)). Among other things, the NRDAA created an 
alternative certification process for foreign nurses only, as provided 
in section 212(r) of the Act. In the H-1C rule, the DHS announced that 
it would continue to waive the certification requirements for 
nonimmigrant nurses, pending the promulgation of new regulations 
implementing both certification processes.

What Provisions Were Contained in the Proposed Rule Published on 
October 11, 2002?

    In the October 11, 2002, rule, the DHS proposed to implement a 
comprehensive process for the certification of foreign health care 
workers under sections 212(a)(5)(C) and (r) of the Act. It addresses 
foreign health care workers coming to the United States on a temporary 
basis (nonimmigrant aliens) as well as on a permanent basis 
(immigrants).
    This rule proposed to amend 8 CFR 212.15 by:
    (1) Specifying which organizations are authorized to issue 
certificates (8 CFR 212.15(e));
    (2) Describing the required content of the certificate itself (8 
CFR 212.15(f));
    (3) Specifying the English language requirements for certification 
(8 CFR 212.15(g));
    (4) Implementing the alternative certification process for foreign 
nurses and the required content of the certified statement (8 CFR 
212.15(h));
    (5) Establishing a streamlined certification process for certain 
nurses, occupational therapists, physical therapists, and speech 
language pathologists and audiologists (8 CFR 212.15(i));
    (6) Describing the procedure to qualify as a certifying 
organization (8 CFR 212.15(j));
    (7) Listing the standards that an organization must meet in order 
to obtain and retain authorization to issue foreign health care worker 
certifications (8 CFR 212.15(k)); and
    (8) Providing for periodic review of the performance of certifying 
organizations (8 CFR 212.15(l)) and the termination of their authority 
(8 CFR 212.15(m)).
    The rule also proposed to amend 8 CFR 103.1 by specifying at new 
paragraphs (f)(3)(iii)(QQ) and (RR) that the Associate Commissioner for 
Examinations exercises appellate jurisdiction over applications for 
authorization to issue foreign health care worker certifications, and 
the termination of authorization to issue foreign health care worker 
certifications.
    The rule proposed to amend 8 CFR 103.7(b)(1) by adding a fee for 
filing Form I-905, Application for Authorization to Issue Certification 
for Health Care Workers. This form was previously approved for use in 
order to ensure that organizations formally seeking authorization to 
issue health care worker certificates or certified statements will be 
able to submit complete and uniform applications. However, because the 
authorization process was never implemented through a final regulation, 
the Form I-905 has not yet been distributed for public use.
    The rule also proposed to amend 8 CFR 214.1(h) by adding a 
requirement that an alien who seeks to enter the United States for the 
purpose of performing labor in a health care occupation must present a 
foreign health care worker certification to the DHS in accordance with 
8 CFR 212.15(d).
    The rule further proposed to amend 8 CFR 248.3 by adding paragraph 
(i) to mandate that a nonimmigrant seeking a change of status to 
perform labor in a health care occupation must submit a foreign health 
care worker certification.

Discussion of Comments

What Comments Were Received in Response to the Proposed Rule?

    Thirty-three comments were received from a variety of individuals 
and organizations including health care workers, attorneys, 
professional organizations, U.S. Government organizations, foreign 
government officials, and organizations granted authority to issue 
certifications to health care workers. The comments addressed many 
aspects of the proposed rule. For the sake of clarity, this section 
will summarize the justification for the regulatory amendments 
contained in the proposed rule and then discuss the comments that 
relate to the specific amendment.
    It must be noted that the proposed rule generated a number of 
comments that were not related to the issue of certifications for 
health care workers. For example, two commenters discussed the general 
issue of the DHS' role in the importation of nurses to the United 
States while another commented on the issue of Social Security cards 
and licenses for nurses. One commenter discussed an alleged 
contradiction in the statutory language. These comments will not be 
discussed because they are not germane to the proposed rule.
    Ten commenters made general observations on the impact of the rule 
on health care in the United States. Nine of the commenters provided 
that the rule will have an adverse affect on health care in the United 
States because it will make it harder for facilities to recruit, hire, 
and retain foreign health care workers. The commenters stated that the 
implementation of the regulation will result in increased backlogs and 
create difficulties for aliens attempting to enter the United States. 
The other commenter stated that CGFNS will have a difficult time 
processing the number of requests it will receive for certifications. 
One commenter stated that the regulation takes away the authority of 
hospital administrators to make decisions with respect to health care 
issues. Finally, one commenter stated that the regulation was not 
flexible and would create operational difficulties for health care 
facilities.
    The statutory provisions relating to the certification process are 
complex. In drafting the previous interim rules, the proposed rule, and 
this final rule, every attempt has been made to minimize the adverse 
affects that they would have on health care facilities and health care 
workers and, at the same, ensure that they reflect the intent of 
Congress.

Aliens Who are Subject to the Health Care Certification Requirements

    The DHS took the position in the proposed rule that the 
requirements of section 212(a)(5)(C) of the Act apply to both 
immigrants and nonimmigrants who seek to enter the United States for 
the purpose of performing labor as a health care worker. Physicians are 
explicitly exempted from the certification requirement by the statute 
and, therefore, are not covered by this rule.
    Further, the DHS held that with respect to immigrants, the 
certification requirement applies to both aliens overseas who are 
seeking an immigrant visa, and aliens in the United States who are 
applying for adjustment of status to that of a permanent resident. The 
DHS interprets the statutory language, ``any alien who seeks to enter 
the United States for the purpose of

[[Page 43904]]

performing labor as a health care worker * * *'' with respect to 
immigrants, to limit the scope of this provision to aliens with an 
approved employment-based (EB) preference petition under section 203(b) 
of the Act, 8 U.S.C. 1153(b), to perform labor in a covered health care 
occupation. Therefore, an alien is not subject to section 212(a)(5)(C) 
of the Act if he or she is seeking an immigrant visa or adjustment of 
status on any other basis pursuant to a family-sponsored petition under 
section 203(a) of the Act, 8 U.S.C. 1153(a), an EB preference petition 
for a non-health care occupation; under section 209 of the Act, 8 
U.S.C. 1159 (adjustment of status of refugees); under section 210 of 
the Act, 8 U.S.C. 1160 (special agricultural workers), or pursuant to 
section 240A of the Act, 8 U.S.C. 1229b (cancellation of removal); 
under section 249 of the Act, 8 U.S.C. 1259 (record of admission for 
permanent residence); or under any other statutory provision relating 
to admission as an immigrant.
    With respect to nonimmigrant aliens, the proposed rule applied the 
certification requirement to all aliens who have obtained nonimmigrant 
status for the purpose of performing labor as a health care worker, 
including, but not limited to, those aliens described in sections 
101(a)(15)(H), (J), and (O) of the Act, 8 U.S.C. 1101(a)(15), and 
aliens entering pursuant to section 214(e) of the Act, 8 U.S.C. 
1184(e), as TN professionals.
    The DHS also proposed that a nonimmigrant entering the United 
States to receive training in an occupation listed at 8 CFR 212.15(c) 
will not be required to obtain a health care certification. This 
includes, but is not limited to, F-1 nonimmigrants receiving practical 
training and J-1 nonimmigrants coming to the United States to undertake 
a training program in a medical field. Nonimmigrant aliens entering the 
United States to receive training in a health care occupation fall 
outside the ambit of section 212(a)(5)(C) of the Act because they are 
not independently performing the full range of duties of their 
occupation and, therefore, are not entering for the purpose of 
performing labor as a health care worker. Their primary purpose in the 
U.S. is not to perform health care but is rather to receive training.
    Finally, the DHS concluded in the proposed rule that the alien 
health care certification requirement should not be applied to the 
spouse and dependent children of an immigrant or nonimmigrant. 
Dependent aliens enter the United States for the primary purpose of 
accompanying the principal alien, not to perform labor as a health care 
worker, or in any other field. A dependent alien derives his or her 
nonimmigrant status from his or her familial relationship with the 
principal alien and is not required to work in a particular 
occupational field or for a specific employer to maintain his or her 
status. Accordingly, regardless of whether or not a dependent alien may 
intend to work in a health care occupation listed at 8 CFR 212.15(c), 
he or she would not be subject to the health care worker certification 
requirement.
    Eighteen comments were received in response to this portion of the 
proposed rule. Four commenters stated that all nonimmigrant aliens 
should be covered by section 212(a)(5)(C) of the Act. Six commenters 
suggested that section 212(a)(5)(C) of the Act should not apply to TN 
nonimmigrants because it conflicts with the terms of the North American 
Free Trade Agreement (NAFTA).
    The DHS carefully considered these comments. However, as noted in 
the proposed rulemaking, based on our consideration of the relevant 
statutory provisions, legislative history, judicial precedent, and our 
prior rulemakings, the DHS has concluded that the health care 
certification requirement is intended to apply to all nonimmigrant 
health care workers. The legislative history of IIRIRA confirms that, 
in this instance, the DHS may not rely on the commenters' assertions 
regarding an alleged conflict with NAFTA to reach a different result. 
See H.R. CONF. REP. NO. 104-828 at 226-27 (1996).
    Four commenters also stated that the certification requirement 
should be applied to the spouse and dependent children of an immigrant 
or nonimmigrant alien. One commenter stated that nonimmigrant aliens 
coming to the United States to obtain training, such as F-1 and J-1 
nonimmigrants, should not be required to obtain a certificate while two 
commenters suggested that they should. Likewise, two commenters 
suggested that an H-3 alien should also be exempt from the provision 
because an H-3 alien is also coming to the United States to obtain 
training. Finally, one commenter suggested that the DHS specifically 
list the nonimmigrant aliens exempted from the certification 
requirements in the final regulation.
    The DHS will not require dependent aliens to obtain a certificate 
even if they will eventually be employed in a covered health care 
occupation. Sections 212(a)(5)(C) and 212(r) of the Act relate to 
grounds of inadmissibility. Since dependent aliens enter the United 
States for the primary purpose of accompanying the principal alien, 
they are not coming to the United States to perform labor as a health 
care worker, or in any other field, and they will not be required to 
obtain a certification.
    Further, the DHS will not list the specific aliens exempted from 
the requirement to obtain health care certificates. The language 
contained in the proposed rule at 8 CFR 212.15(a)(1) provides that the 
provision applies only to those aliens coming to the United States for 
the primary purpose of performing labor in a health care occupation. 
This language clearly does not apply to a nonimmigrant alien coming to 
the United States for training, including an H-3 nonimmigrant alien. 
Further, the listing of specific nonimmigrant classifications in the 
regulation may be erroneously interpreted by some to limit the 
exemption to those nonimmigrants specifically listed in the regulation.

Health Care Workers Who Were Trained in the United States, or Who Are 
in Possession of a Valid State License

    The proposed rule provided that possession of a state license does 
not exempt a foreign health care worker from compliance with the 
certification requirement.
    As stated in the proposed rule, this conclusion was reached after 
considering the language of the statute, and after consultation with 
HHS. Nothing in the text of section 212(a)(5)(C) of the Act relieves 
alien health care workers of this requirement, on the ground that they 
were trained in the United States or are already licensed here. 
Moreover, the certification requires that any state license the alien 
may already have is unencumbered. Indeed, had Congress intended to 
exempt such aliens from the certification requirement, it would not 
have explicitly provided that the certification must document the fact 
of an alien=s successful passage of any test or examination that is 
accepted as evidence of an applicant's likely success on a state 
licensing examination, if a majority of States recognize such a pre-
licensing test or examination. In addition, in NRDAA, Congress 
explicitly addressed whether a foreign nurse, in possession of a full 
and unrestricted license issued by the state of intended employment, 
should be subject to the certification requirement. The NRDAA created a 
less onerous, alternative method of certification for foreign nurses 
who have unrestricted state licenses and meet certain other conditions, 
as provided in section 212(r) of the Act. The fact that Congress has 
chosen not to provide a less rigorous

[[Page 43905]]

alternative certification option to state-licensed foreign health care 
workers other than nurses supports the inference that Congress intended 
state-licensed foreign health care workers to comply with the 
certification process.
    In addition to the statutory scheme, there are policy 
considerations that mitigate in favor of applying the certification 
requirement to state-licensed foreign health care workers. The state 
screening process alone would not demonstrate that the other two prongs 
of the certification requirement, English language competency, and 
comparable training and unencumbered licensing, had been met. First, 
the state screening process does not always measure English 
proficiency. Second, HHS had advised that the state screening process 
may not always discover encumbrances and restrictions on a license.
    The statute and legislative history are silent with respect to 
whether foreign health care workers, who received their training in the 
United States, are subject to the certification process. While such 
aliens would satisfy the comparable training certification 
requirements, their licensure would not be verified, as required by the 
statute. Given the lack of evidence of congressional intent that such 
aliens be exempt from the reach of section 212(a)(5)(C) of the Act, the 
DHS has concluded that foreign health care workers who received their 
training in the United States must comply with the certification 
requirement. The DHS will not modify the proposals contained in the 
proposed rule to wholly exempt foreign health care workers who received 
their training in the United States or who hold a license to practice 
in the United States.
    One commenter suggested that the verification requirement for 
nurses at proposed 8 CFR 212.15(h)(2)(i) be amended to include the 
parenthetical phrase A(including reliance on evidence provided by the 
alien)'' after the word Averified.'' Under the suggested language, 
credentialing organizations would not be permitted to second-guess a 
state's licensure verification. The DHS will not adopt this proposal. 
The statutory language at section 212(r) of the Act authorizes CGFNS or 
any other authorized credentialing organization to verify that the 
alien has a valid and unrestricted license in a state where the alien 
intends to be employed, and that such state verifies that the foreign 
licenses of alien nurses are authentic and unencumbered. The DHS does 
not have the authority under the statute to determine whether or not a 
state verifies that the foreign licenses of alien nurses are authentic 
and unencumbered, nor does the DHS have the authority to prevent CGFNS 
or any other authorized credentialing organization from making such a 
finding before issuing certification.
    The proposed rule invited comments regarding the feasibility of 
having a more streamlined certification process for those who train in 
the United States or who are already licensed here, and regarding 
specific proposals on how to adopt such a policy.
    The DHS received four comments in response to the request for 
suggestions relating to a streamlined certification process. Three 
commenters stated that the DHS should develop a streamlined approach 
without providing any suggested process while one commenter, CGFNS, 
provided a detailed description of a proposed process.
    The CGFNS proposed that an alien nurse who graduated from an entry-
level program accredited by the National League for Nursing 
Accreditation Commission (NLNAC) or the Commission on Collegiate 
Nursing Education (CCNE) would be exempt from the educational 
comparability review and English language proficiency testing. The 
CGFNS also proposed that aliens educated in the United States in any 
other named discipline and who have graduated from a program accredited 
by the discipline would be evaluated under this same process.
    Pursuant to section 343 of IIRIRA, HHS, in consultation with the 
Secretary of Education, is required to establish a level of competence 
in oral and written English which is appropriate for the 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.
    The statute vests the Secretary of HHS with the ``sole discretion'' 
to determine the standardized tests and appropriate minimum scores 
required by section 343 of IIRIRA. Because the organizations identified 
as the accrediting bodies for nursing go through a rigorous review 
prior to being recognized by the DoED, HHS has agreed that the proposal 
to accept graduation from an NLNAC or CCNE accredited program in lieu 
of a review of educational comparability and English proficiency has 
merit. Accordingly, the proposal will be adopted in the final rule. It 
will shorten the certification process required for health care workers 
educated in the United States. It will also allow CGFNS and any 
approved organization to comply with the statutory requirements and, at 
the same time, ease the burden on certain health care workers. This 
proposal has been implemented in this final rule at 8 CFR 215.15(i).
    In addition, HHS has agreed to accept graduation from the following 
programs in lieu of a review of educational comparability and English 
proficiency:
    (1) For occupational therapists, graduation from a program 
accredited by the Accreditation Council for Occupational Therapy 
Education (ACOTE) of the American Occupational Therapy Association 
(AOTA);
    (2) For physical therapists, graduation from a program accredited 
by the Commission on Accreditation in Physical Therapy Education 
(CAPTE) of the American Physical Therapy Association (APTA); and
    (3) For speech language pathologists and audiologists, graduation 
from a program accredited by the Council on Academic Accreditation in 
Audiology and Speech Language Pathology (CAA) of the American Speech-
Language-Hearing Association (ASHA).
    However, the proposal that aliens educated in the United States in 
any other named discipline and who have graduated from a program 
accredited by the discipline would be evaluated under this same process 
will not be adopted as general provision, because specific accrediting 
bodies for other professions were not suggested. The HHS will continue 
to review further proposals for each profession on a case-by-case 
basis.

Health Care Occupations That Are Subject to 8 U.S.C. 1182(a)(5)(C)

    In the proposed rule, based on congressional history, seven 
categories of health care workers subject to the health care 
certification requirements were identified. See H.R. CONF. REP. NO. 
104-828 at 227 (1996). The seven categories are nurses, physical 
therapists, occupational therapists, speech-language pathologists, 
medical technologists (also known as clinical laboratory scientists), 
medical technicians (also known as clinical laboratory technicians) and 
physician assistants. See the first Interim Rule. The conference report 
also provided that the DHS could designate additional health care 
occupations subject to certification by regulation. Since the DHS had 
limited agency expertise with health care occupations and issues, it 
consulted extensively with HHS, the agency generally responsible for 
overseeing health care occupations and other related health care issues 
in the United States, with respect to the question of whether aliens in 
additional health care occupations should be required to comply with 8 
U.S.C. 1182(a)(5)(C).

[[Page 43906]]

    The proposed rule identified two factors relevant to the 
consideration of which health care occupations fall under the ambit of 
section 212(a)(5)(C) of the Act. The first factor is whether the health 
care occupation generally requires a license in a majority of the 
states. This factor reflects the states' historical and practical 
experience in distinguishing between those health care occupations 
requiring extensive regulation and those occupations that do not. At 
the advice of HHS, DHS has included the District of Columbia. While not 
a state, Washington, DC, has its own licensing authorities and should 
be included when determining whether a majority of states recognize a 
licensure or certification predictor exam.
    The second factor is whether the health care worker has a direct 
effect on patient care, or, in other words, whether a health care 
worker in that occupation could reasonably pose a risk to patient 
health.
    In response to this proposal, CGFNS suggested that a third factor 
should be considered in determining whether an occupation should be 
included in the certification process. The CGFNS suggested that an 
additional factor that should be considered is whether a significant 
number of foreign nationals enter the United States workforce for the 
purpose of performing labor in a particular health care occupation. The 
CGFNS noted that it would not be prudent to spend the time and 
resources required to establish a certification process for a 
particular occupation in which very few foreign workers are seeking 
employment.
    The DHS has considered using the factor suggested by CGFNS. It 
would be difficult to accurately measure the number of ``foreign'' 
workers in a given occupation at a particular point in time, and the 
labor market for any occupation is subject to fluctuations. As the DHS 
is not currently adding any other occupations to the list of seven 
occupations requiring certification or certified statements, the DHS 
will not adopt the suggestion to evaluate inclusion of an occupation 
based on the number of foreign nationals seeking to enter the United 
States workforce in that occupation.
    Under the proposed rule, health care workers such as, but not 
limited to, medical teachers, medical researchers, managers of health 
care facilities, and medical consultants to the insurance industry 
would not be required to comply with the certification requirement. In 
contrast, health care workers, such as supervisory physical therapists, 
who may not typically be involved in hands-on patient care but do have 
a direct effect on patient care, would be subject to the certification 
requirements. In the proposed rule, the DHS acknowledged that the job 
descriptions of certain occupations that could be added to the list may 
differ in other countries from the United States definition of the 
occupation. The differences may create confusion about which occupation 
is subject to certification. The DHS suggested that a possible solution 
would be to define each health care occupation subject to certification 
in this final rule. The DHS again invited comments regarding the need 
to define a health care occupation that is subject to certification.
    In response to this provision, the DHS received nine comments. 
Three commenters suggested that the list of occupations be expanded to 
include additional occupations including Radiation Therapists and 
Radiological Technologists. Two commenters suggested that the current 
list of occupations be retained. Three commenters suggested that the 
DHS should define a health care occupation as any occupation that 
requires a license to provide direct and indirect patient care. Another 
commenter suggested that a health care occupation is any occupation 
that involves patient care. Finally, one commenter suggested that job 
descriptions should be used to define a health care occupation.
    After reviewing the comments, the DHS will not include a specific 
definition of each health care occupation subject to certification in 
the regulation at this time. The definitions offered by the commenters 
were not sufficiently specific and could cover a range of occupations 
not contemplated by the legislative history. Further, the suggestions 
have not addressed concerns that the job descriptions of occupations 
may differ between the United States and other countries. The DHS will 
continue the past practice of examining the duties of the position 
offered to the foreign worker to determine if the position falls into 
one of the listed health care occupations. The practice of continuing 
to review the duties of the prospective position on a case by case 
basis will allow for a thorough evaluation of each application and a 
determination based on the merits of the case rather than the 
petitioner's or applicant's ability to make the duties of the position 
conform to a narrow definition.

When To Submit the Certification to the DHS

    The statutory language at section 212(a)(5)(C) of the Act requires 
certain aliens seeking to enter the United States for the purpose of 
performing labor as a health care worker to present a certificate from 
CGFNS or an equivalent credentialing organization to the consular 
officer or, in the case of an adjustment of status, the Attorney 
General. In the proposed rule, the DHS also provided that the 
certification must be used for initial admission into the United States 
or for a change of status within 5 years of the date that it was 
issued.
    Two comments were received in response to this proposal. One 
commenter suggested that the organization that issues the certification 
send it directly to either the DHS or, if the alien is outside the 
United States, to the consular post. Since the adoption of this 
suggestion would be contrary to statute, the requirement that the 
certificate be presented to a consular officer at the time of visa 
issuance and to the DHS at the time of admission or adjustment of 
status will continue in this final rule.
    The other commenter suggested that the certification should be 
valid indefinitely. While the proposed regulation did not establish a 
validity date for the certification, it did require that it be 
submitted to the appropriate entity within 5 years of its issuance. The 
purpose of this proposal is to ensure that when the certification is 
submitted, the holder still has the appropriate language and technical 
skills to perform the duties of the occupation in the United States. 
Foreign licenses may be encumbered and therefore invalid after a 
prolonged period of time. Additionally, it is quite possible that over 
the course of time that the alien may lose certain skills necessary to 
safely perform the duties of the occupation in the United States. The 
5-year submission period provides a basis to ensure that the holder of 
the certificate continues to meet the regulatory requirements for 
issuance of the certificate. The proposed rule also provided that if an 
alien seeking entry to the United States to perform labor in a 
particular health care occupation has already presented the 
certification and been admitted as a nonimmigrant, an immigrant, or has 
adjusted to permanent resident status, he or she will not be required 
to present the certificate again when he or she makes future 
applications for admission to the United States to perform labor in 
that particular health care occupation. The presentation of a Form I-94 
issued to the alien at the initial admission to the United States, or a 
fee receipt showing that the alien was processed for admission under 
NAFTA would be used, if required, as evidence that the

[[Page 43907]]

alien has previously presented a foreign health care worker certificate 
for a particular health care occupation. Similarly, such an alien would 
not have been required to again present the foreign health care worker 
certificate to the DHS, with an application for extension of status to 
perform labor in that particular health care occupation.
    The DHS received no comments on this proposal. However, after 
considering the impact of this provision, the DHS has determined that 
it will only accept a valid health care worker certificate or certified 
statement as evidence that the alien is admissible. Currently, an alien 
is generally required to surrender the departure stub of Form I-94 upon 
departure from the United States. Controlling the departure of aliens 
is consistent with the DHS's efforts to fulfill a congressional mandate 
to implement a comprehensive entry-exit program by 2005. As a result, 
many aliens will not be able to present a departure stub from a 
previously issued Form I-94 as evidence of their continuing 
admissibility under section 212(a)(5)(C) of the Act. In addition, it is 
noted that information on a Form I-94 does not always include the 
occupation for an alien nonimmigrant. For this reason, even in 
exceptional instances where the alien is permitted to retain the 
departure stub of the Form I-94 when departing the United States, the 
DHS would not necessarily be able to use the departure stub of the Form 
I-94 to verify that a particular alien was previously admitted as a 
health care worker. Accordingly, the DHS has determined that it is in 
the best interest of affected aliens to require that they present valid 
health care worker certificates or certified statements each time they 
seek admission into the United States. Lawful permanent residents will 
not be required to present this evidence.

Implementation of the Certification Requirement

    This rule adds a new 8 CFR 248.3(i) to outline the procedure for 
submitting the certificate to the DHS when an application is made to 
change nonimmigrant status within the United States.
    The proposed rule also provided that, on the effective date of the 
final rule, nonimmigrants who have already entered the United States 
under a waiver of inadmissibility under section 212(d)(3) of the Act 
and are working as health care workers will be required to present a 
certificate to the DHS only if, at any point in the future, they file 
an application for an extension of stay, or apply for admission to the 
United States, whichever event occurs first.
    The DHS received 13 comments in response to this provision. All 13 
commenters suggested that the DHS delay the implementation of this 
provision for a period of time in order to ensure that the foreign 
health care workers already in the United States would not be adversely 
affected. The commenters noted that some health care workers may be 
required to travel outside of the United States and would not be able 
to obtain a certification prior to their departure. Other commenters 
noted that some health care workers who require an extension of their 
temporary stay would not be able to obtain a certification in a timely 
fashion and would be forced to terminate their employment at the health 
care facility.
    The DHS believes that these comments are well-founded. The DHS is 
concerned about the possibility that health care facilities and the 
United States public will be adversely affected by an immediate 
implementation date. In addition, DOS also has recommended that the DHS 
continue to exercise its waiver authority under section 212(d)(3) of 
the Act for foreign health care workers for at least one year 
subsequent to the publication of this rule.
    If this rule were effective upon publication, potentially every 
nonimmigrant working in one of the covered health care occupations and 
seeking admission into the United States would be immediately 
inadmissible and ineligible to work in the United States under their 
current nonimmigrant classifications. This would result in a serious 
disruption to the United States health care system, and is contrary to 
the intent of the rule. While the DHS does not have precise figures for 
the number of nonimmigrant health care workers within the United 
States, health care workers in general comprise a significant portion 
of the United States workforce. According to the 2001 National 
Occupational Employment and Wage Estimates from the Bureau of Labor 
Statistics, there are approximately 9,241,840 health care workers in 
the United States. Of these, approximately 2,217,990 are registered 
nurses; 683,790 are licensed practical nurses and licensed vocational 
nurses; 126,450 are physical therapists; 77,080 are occupational 
therapists; 94,150 are speech language pathologists and audiologists; 
292,320 are medical technologists and technicians; and 56,200 are 
physician assistants.
    Further, were this rule to be effective upon publication, there is 
no evidence that organizations authorized to issue health care 
certifications will be able to issue certifications to this potentially 
large group of workers within a reasonable amount of time. Not only are 
potentially affected health care workers required to apply for and 
obtain the actual certifications, but most workers would also be 
required to pass certain standardized English language tests as a 
minimum requirement to obtain certification. As discussed in this rule, 
one of the currently authorized English language testing organizations 
advised HHS and the DHS that it will no longer provide testing services 
to foreign health care workers because it cannot meet the demands 
placed upon it by foreign health care workers seeking health care 
certificates, and can no longer provide fair access or guarantee 
testing security.
    In addition, health care workers abroad may be required to travel 
to remote locations in order to take certain tests and will require 
sufficient time to schedule testing and make any necessary travel 
arrangements. Although the tests may be offered several times a year, 
not all required tests are offered in one location. For example, the 
TSE is not always offered at the same location as the TOEFL, so a 
health care worker may have to go through several testing cycles in 
order to obtain a combination of test scores needed for certification. 
Finally, it should be noted that this rule is implementing the 
requirement that all approved credentialing organizations obtain 
evidence of candidate education and licensure directly from the issuing 
authorities. Thus, once a candidate has passed the requisite tests and 
submitted an application for certification, there will be additional 
delays while the authorized credentialing organization obtains and 
reviews documents such as educational transcripts and licensure 
materials.
    After consideration of these factors, the DHS believes that it must 
continue the provision for temporary admission under section 212(d)(3) 
of the Act for a period of 1 year in order to allow for any potential 
delays in issuance of health care worker certification and to ensure 
that the United States public is not adversely affected when 
nonimmigrant health care workers currently employed in the United 
States are required to obtain certification. Therefore, the DHS has 
added language at 8 CFR 215.15(n) that continues in force the First 
Interim Rule's standing provision for temporary admission under section 
212(d)(3) of the Act. An alien qualifies for this special provision 
only if the alien was admitted on or before July 26, 2004. Moreover, 
any petition or application to extend the alien's period of authorized 
stay or change the alien's status will be denied unless the alien 
obtains the required

[[Page 43908]]

certification no later than 1 year after the date of the alien's 
temporary admission.
    Process for an Organization to Obtain Authorization to Issue Health 
Care Certificates
    The statute provides that a foreign health care worker must present 
a certificate from CGFNS or an equivalent credentialing organization 
or, in the case of certain foreign nurses, a certified statement from 
CGFNS or an equivalent credentialing organization. In the legislative 
history to IIRIRA, the conferees identified seven health care 
occupations (which are currently reflected in 8 CFR 212.15(c)). It is 
reasonable to infer from the statutory designation of CGFNS as a 
credentialing organization that Congress considered CGFNS to possess 
the resources and expertise to issue certificates in at least those 
seven designated health care occupations. Accordingly, the DHS will not 
require CGFNS to apply for credentialing status with respect to those 
seven health care occupations. However, CGFNS will be required to 
submit information regarding its certification processes via filing of 
Form I-905 Application for Authorization to Issue Certification for 
Health Care Workers, without fee with the Director, Nebraska Service 
Center, in order to enable the DHS to review the content of its 
certificates for the seven health care occupations, and content of its 
certified statements for nurses, and ensure compliance with the 
universal standards set forth in this rule. Like other credentialing 
organizations, CGFNS will also be subject to ongoing review by the DHS, 
and termination of credentialing status for noncompliance with this 
rule.
    It is less clear, however, that Congress considered whether CGFNS 
possessed the expertise to issue certificates for health care 
occupations other than the seven identified in the legislative history. 
Therefore, although CGFNS' statutory designation creates a strong 
presumption of expertise with respect to all health care occupations 
such that the DHS will not charge a fee for review of the Form I-905 in 
relation to those occupations, the DHS will require CGFNS to file an 
application on Form I-905 with fee under the procedures outlined at 8 
CFR 212.15(j), for credentialing status with respect to any health care 
occupation other than the seven identified in the legislative history.
    Organizations other than CGFNS may be approved to issue 
certificates or certified statements by submission of Form I-905 to the 
Director, Nebraska Service Center, with fee. The fee for Form I-905 
will be $230.
    For purposes of administrative ease and efficiency, the DHS will 
centralize all requests for designation as a credentialing organization 
at the Nebraska Service Center, regardless of the geographical location 
of the requesting organization. Centralization of these requests will 
enable personnel at the Nebraska Service Center to establish and 
maintain the appropriate contacts with HHS and DoED to assist in the 
adjudication of applications for credentialing status. The DHS will 
accord significant weight to the opinion of HHS in the adjudication of 
applications for credentialing status because of that agency's 
expertise with credentialing requirements for health care occupations 
and health care issues. It should be noted, however, that the DHS may 
deny a request for authorization on grounds unrelated to credentialing 
requirements for health care occupations or health care issues, despite 
a favorable HHS opinion. For example, the DHS may find that because an 
organization has been convicted, or the directors or officers of an 
authorized credentialing organization have individually been convicted 
of the violation of state or federal laws, it would not be appropriate 
to authorize an organization to issue certificates or certified 
statements.
    Two comments were received with respect to the DHS's treatment of 
CGFNS under the proposed rule. One commenter stated that CGFNS should 
not be permitted to issue certificates to medical laboratory 
technologists because of the large number of credentialing 
organizations for this occupation in the United States. The other 
commenter stated that the treatment of CGFNS in the proposed rule is 
appropriate.
    The DHS will not limit the scope of CGFNS' authority to issue 
certificates to medical laboratory technologists. The fact that other 
entities have established different licensing and credentialing 
processes in the United States does not mean that CGFNS is unable or 
less qualified to issue certificates to foreign health care workers 
employed in the same occupation. CGFNS has been issuing certificates 
and certified statements to health care workers in the field of 
nursing, a field that has a large number of credentialing entities and 
with varied standards.
    The proposed rule noted that Form I-905 will require the 
organization seeking credentialing status to:
    (1) Provide a point of contact and a written, detailed description 
of the organization and how the organization meets the standards 
described in 8 CFR 212.15(k);
    (2) List the health care occupations for which the organization is 
seeking approval to issue certificates, and describe the organization's 
expertise in each health care occupation for which approval to issue 
certificates is sought;
    (3) Describe how it will process applications and issue 
certificates on a timely basis; and
    (4) Describe the procedure it has designed in order for the DHS to 
verify the validity of a certificate.
    The DHS will provide the organization with a written decision on 
its application. An organization granted authorization to issue 
certificates must agree to provide the DHS with all requested 
documentation and to allow the DHS access to its records relating to 
the certification process. If the application is denied, the DHS will 
explain the reason(s) for the denial. Applications that are denied by 
the DHS may be appealed to the Administrative Appeals Office pursuant 
to 8 CFR 103.3.
    In the proposed rule, the DHS sought comments on the best method of 
notifying the public when new organizations are approved to issue 
certifications and certified statements. One method of notifying the 
public was through the publication of an interim rule in the Federal 
Register.
    In the alternative, the DHS considered designating, by a separate 
and comprehensive public notice in the Federal Register, the list of 
organizations approved to issue certification. The DHS would also 
maintain this list on its Web site at http://www.immigration.gov). This 
method would allow the DHS to update the list of authorized 
organizations more quickly than through publication of interim rules.
    The DHS did not receive any comments on this particular issue. 
However, after additional consideration, the DHS has determined that it 
will provide notice to the public that an organization has been 
approved to issue certificates and certified statements through the 
publication of a comprehensive notice in the Federal Register. As a 
result, this final rule provides at 8 CFR 215.15(e)(4) that the DHS 
will notify the public of new approved organizations authorized to 
issue certificates by publishing a public notice in the Federal 
Register. This rule also adds the same provision with respect to 
organizations authorized to issue certified statements at 8 CFR 
215.15(h)(1). The DHS would maintain the list of organizations 
authorized to issue certificates or certified statements, or whose 
authorization has been

[[Page 43909]]

terminated, on its Web site at http://www.immigration.gov.
    The proposed rule recognized that more than one organization could 
be approved to issue certifications for the same health care 
occupation. An alien may obtain a certificate from any organization 
authorized to issue certificates for that occupation.
    One commenter suggested that recognizing more than one 
credentialing organization could create difficulties because the two 
organizations may establish different procedures for issuing 
certifications. The DHS is aware that organizations may have slightly 
different requirements for issuing certifications. However, the DHS is 
convinced that the standards established for approval guarantee that 
organizations will follow similar, although not identical, procedures 
for issuance of certifications.
    This rule also adopts the language of the proposed rule and 
provides that the DHS's approval will be for a 5-year period of time 
subject to the review process described in 8 CFR 215.15(l).
    Two commenters suggested that the organizations granted approval 
under the previously published interim rules be permitted to issue 
certificates for a given period of time until they could be approved 
under the standards listed in the final rule. The proposed rule 
provided that the authorization granted to organizations under the 
interim rules would continue pending final adjudication of its 
credentialing status under the provisions contained in the proposed 
rule.

Form I-905

    The proposed rule set a filing fee of $230 for Form I-905. When 
establishing fees, the DHS must comply with guidance provided in the 
Office of Management and Budget (OMB) Circular A-25. This guidance 
directs federal agencies to charge the Afull cost'' of providing 
benefits when calculating fees that provide a special benefit to 
recipients. Section 6(d) of OMB Circular A-25 defined Afull cost'' as 
including Aall direct and indirect costs to any part of the Federal 
Government of providing a good, resource, or service.'' The DHS 
determined that $230 was the appropriate fee for Form I-905 after 
comparing the processing of the form to the process involved with Form 
I-17, Petition for Approval of School for Attendance by Nonimmigrant 
Student, which has a processing fee of $230. The DHS noted in the 
proposed rule that it will use $230 for the fee for the Form I-905 
until the next biennial fee review, as required by the Chief Financial 
Officers Act of 1990, Public Law 101-576, 104 Stat. 2838.
    In response to the new form, the DHS received two comments. One 
commenter suggested that the fee should be higher. The DHS will not 
increase the fee because the rationale used in the proposed rule to 
establish the fee is appropriate. The DHS may revise the fee after the 
next biennial fee review. The other commenter stated that the questions 
on the Form I-905 should be tailored to a specific occupation. Upon 
review, the DHS will not make any changes to Form I-905. The answers to 
the questions contained on the form will provide the DHS with the 
information necessary to determine an organization's eligibility to 
issue certifications.

The Standards an Organization Must Meet in Order To Obtain 
Authorization To Issue Certificates

    The proposed rule lists the standards an organization must 
substantially meet in order to be authorized to issue certificates at 8 
CFR 212.15(k). An organization seeking approval to issue certificates 
or certified statements should submit evidence addressing each of the 
standards. These standards were developed by HHS in order to ensure 
that an organization meets the requirements contemplated by Congress. 
In drafting these standards, HHS drew upon the legislative history to 
IIRIRA, and drew extensively from the standards of the National 
Commission for Certifying Agencies, a nationally recognized body that 
accredits certifying organizations. There are four guiding principles 
to the standards:
    (1) The DHS should not approve a credentialing organization, unless 
the organization is independent and free of material conflicts of 
interest regarding whether an alien receives a visa;
    (2) The organization should demonstrate an ability to evaluate both 
the foreign credentials appropriate for the profession, and the results 
of examinations for proficiency in the English language appropriate for 
the health care field in which the alien will be engaged;
    (3) The organization should also maintain comprehensive and current 
information on foreign educational institutions, ministries of health, 
and foreign health care licensing jurisdictions; and
    (4) If the health care field is one for which a majority of the 
States require a predictor examination (currently, this is done only 
for nursing), the organization should demonstrate an ability to conduct 
the examination outside the United States.
    Since the statute and the report language is intended to ensure 
that aliens entering the United States for purposes of performing labor 
as a health care worker are of the same quality as United States 
trained workers, HHS has determined that this can be assured by 
requiring that organizations issuing certificates be held to a select 
group of standards. The DHS is concerned that in the absence of strict 
standards, unqualified organizations may obtain authorization from the 
DHS to issue certificates, which could ultimately have adverse 
consequences for health care in the United States. Since the provisions 
of section 212(r) of the Act appear to share with section 212(a)(5)(C) 
of the Act the goal of ensuring a high quality of health care service 
in the United States, the DHS will use the same standards to adjudicate 
applications from credentialing organizations under either provision.
    The proposed rule solicited comments from the public and from 
interested organizations regarding the proposed standards, 
specifically, whether an organization seeking authorization to issue 
certificates may meet most, but not all of the standards. The DHS 
sought comment on the question of whether a prospective credentialing 
organization's inability to meet all of the proposed standards should 
preclude the DHS from authorizing the organization to issue 
certificates. The DHS also sought public comment on the question of 
whether the proposed standards should be considered as guidelines or as 
strict criteria that would preclude an organization from qualifying. 
Finally, the DHS invited public comment on the question of how a 
prospective credentialing organization can meet the requirement that it 
demonstrate that it is independent and free of material conflicts of 
interest regarding whether an alien receives a visa.
    In response to this proposal, the DHS received 18 comments. Four 
commenters stated that organizations should be required to meet all the 
proposed standards and that the standards should be viewed as strict 
criteria, not merely guidelines. Two commenters stated that the 
organizations must be independent and free from prejudice. One 
commenter suggested that the DHS remove or modify the standard that 
requires organizations to compare the passing rate of foreign health 
care workers on licensure examinations with those of United States 
health care workers. Another commenter suggested that tracking the 
performance of certificate holders would not be practical.

[[Page 43910]]

    One commenter suggested that recognized experts should be on an 
organization's board while another commenter suggested that members of 
the health care profession should be included. One commenter suggested 
that the standards were so complicated that they might discourage 
entities from applying for approval while one commenter stated that the 
requirements were not specific. Three commenters stated that the 
credential review process developed by the approved organizations must 
follow established guidelines. One commenter stated that organizations 
should be required to solicit information from applicants seeking a 
certification. Finally, one commenter suggested that each organization 
should require that health care workers complete the same course work 
for each occupation.
    Two commenters made suggestions relative to the composition of the 
organization's board, including a suggestion from one commenter that 
the proposed language at 8 CFR 212.15(k)(l)(vi) be amended to clarify 
that a not-for-profit corporation that has a self-perpetuating board of 
directors may still demonstrate that it is independent and free of 
material conflicts of interest regarding whether an alien receives a 
visa. Many not-for-profit organizations have self-perpetuating boards 
of directors but may nevertheless be considered independent and free of 
material conflicts of interest under the statute. This provision was 
not intended to exclude not-for-profit corporations from receiving 
authorization to issue health care worker certifications, and the DHS 
recognizes that a not-for-profit organization with a self-perpetuating 
board of directors may yet establish that it has met the statutory 
requirement. Accordingly, the DHS will adopt this suggestion and has 
added language at 8 CFR 212.15(k)(l)(vi) to provide that not-for-profit 
corporations which have difficulty meeting the requirement relating to 
self-perpetuating boards of directors may nevertheless establish that 
the organization is independent and free of material conflicts of 
interest regarding whether an alien receives a visa.
    One commenter suggested that any credentialing organization that 
seeks authorization to issue health care worker certificates should be 
required to request evidence of an alien's degree and transcript from 
the issuing educational and licensing authorities, rather than accept 
those documents from the applicants. The DHS, in consultation with HHS, 
has determined that this suggestion will provide additional protection 
against fraudulent submissions from applicants, and will ensure the 
authenticity of documentation relating to an applicant's education and 
licensure. Accordingly, the DHS will adopt this comment and has added 
language at 8 CFR 212.15(k)(3)(vi).
    In general, the standards as written in the proposed rule have been 
one of the more contentious issues in the entire health care worker 
certification process; however, they were developed with HHS based in 
part on those standards held by other currently authorized entities. 
The standards are voluminous and, in some situations, can be satisfied 
in a number of different ways. As such, the DHS has determined that 
these standards are best viewed as guidelines and not strict criteria. 
Further, since the approval of an organization by the DHS is a matter 
of discretion, the final rule reflects that an organization seeking 
approval is required to meet the majority, but not all, of the listed 
standards. The burden to establish eligibility, however, rests with the 
organization seeking approval. An organization seeking approval to 
issue a health care certificate should make every attempt to submit 
evidence addressing each of the criteria listed. It should be noted 
that any organization, including a state agency, for example, could be 
found eligible for authorization to issue certification so long as it 
meets the majority of the listed standards.
    It is the opinion of the DHS that the standards contained in this 
rule are specific enough to ensure that approved organizations will 
develop credentialing processes that are reasonably consistent given 
the differences in the types of health care occupations that will be 
reviewed. The DHS is aware that approved organizations will be required 
to develop different credentialing processes because of the differences 
in the educational and training requirements for the affected 
occupations. As a result, the DHS will not dictate specific 
credentialing processes to the approved organizations.
    Aside from modifications relating to not-for-profit corporations 
and the requirement that a credentialing organization obtain 
educational and licensing documents directly from the issuing 
authorities, the DHS will not modify the proposed regulation with 
respect to the composition of its governing board or the portion of the 
organization responsible for overseeing certification. The standards as 
currently written provide sufficient flexibility to ensure that 
organizations will operate in a fair and objective fashion.
    The DHS will not amend the standards describing an organization's 
responsibility to track the performance of foreign workers holding 
credentials. These provisions are valuable tools for determining the 
effectiveness of the credentialing process and are essential to the 
success of the credentialing program.

Monitoring Organizations Authorized To Issue Certificates or Certified 
Statements

    In the proposed rule, the DHS provided that it intended to develop 
a regulatory process to monitor credentialing organizations, including 
CGFNS, to ensure that a credentialing organization continues to follow 
the standards described in the proposed rule. The DHS proposed to 
review and reauthorize the credentialing organizations every 5 years. 
The rule also proposed that the DHS notify the credentialing 
organization in writing of the results of the review and 
reauthorization. If the DHS developed adverse information with respect 
to the performance of the organization, the DHS could institute 
termination proceedings. The DHS solicited comments from the public 
regarding the frequency of review, e.g., review as part of the 5-year 
reauthorization, or an annual or bi-annual review, the nature of the 
review, and whether reviews, if conducted separately from 
reauthorization, should be targeted versus random, would be of great 
assistance in the development of a review process.
    The DHS also proposed to assess whether an authorized credentialing 
organization had issued certificates or certified statements in a 
timely manner so as to minimize any delays that may affect an alien's 
ability to proceed with his or her application for an immigration 
benefit, and to assess whether the fee charged for a certificate or 
certified statement unduly impairs an alien's ability to seek an 
immigration benefit. The DHS sought comments on what might constitute a 
reasonable period of time within which a credentialing organization 
would be required to issue certificates or certified statements, and 
regarding what methodology the DHS should use in assessing whether a 
fee constitutes an obstacle to obtaining an immigration benefit.
    In response to this proposal the DHS received eight comments. One 
commenter stated that the 5-year review period was appropriate while 
two commenters suggested that the DHS conduct bi-annual reviews of 
approved organizations. Two commenters suggested that the DHS conduct 
random surveys during the 5-year period.

[[Page 43911]]

Finally, CGFNS stated that it should be exempt from the 5-year review 
process because it is specifically listed in the statute as an 
organization authorized to issue certifications.
    The DHS does not feel that it is appropriate to modify the proposed 
review process at this time by conducting additional scheduled reviews 
or by exempting any organizations. The DHS will adopt the suggestion to 
review an organization at any time during the 5-year period by 
reserving the right to conduct reviews of the approval of any request 
for authorization to issue certificates. The DHS retains the right to 
conduct a review at any time within the 5-year period of authorization. 
This authority under Sec.  212.15(k)(8)(iii) provides that the DHS can 
request information of the organization and its program for use in 
investigating allegations of non-compliance with standards and for 
general purposes of determining continued approval as an independent 
credentialing organization. The DHS intends to use this authority to 
conduct periodic reviews. The DHS notes the concerns expressed by the 
commenters that organizations should be monitored on a bi-annual basis 
to ensure compliance with the approval standards but finds that a 5-
year review period appears appropriate at this time. It should be noted 
that the DHS also has the ability to initiate termination proceedings 
any time after approval has been granted. The DHS can initiate 
termination proceedings at any time during the 5-year period based on 
information received from other sources, e.g., adverse information 
provided by state licensing boards or uncovered during the course of an 
ordinary review of approval of an entity's authorization.
    The DHS will not exempt CGFNS from the 5-year review process. While 
CGFNS is named in section 212(a)(5)(C) of the Act, it is named as one 
of the entities from which an alien may receive a valid certificate in 
order to gain admission. This language relates to the alien and his or 
her admissibility, not to CGFNS' authority to issue certificates, which 
is still subject to approval by the Bureau of Citizenship and 
Immigration Services. Just as this language does not preclude approval 
of other certifying organizations, it is the position of the Bureau of 
Citizenship and Immigration Services that it does not guarantee 
approval in the case of CGFNS either. Finally, Congress named CGFNS as 
an example in the statute because it was aware that this entity existed 
and was active in this field, but did not mean to confer any authority 
on CGFNS. Thus, CGFNS is not exempt from governmental oversight. The 
approval and review process is a guarantee that CGFNS will continue to 
meet the standards required for all certifying organizations.
    The DHS also received two comments relating to the fees that an 
organization charges for the certification. One commenter stated that 
the CGFNS fee was too high while the other commenter proposed a rolling 
fee based on an alien's monthly income in his or her country.
    The DHS will not modify the proposed rule to address the fee issue. 
The statute does not give the DHS the authority to set fees for 
organizations approved to issue certifications or certified statements. 
The DHS is confident that organizations authorized to issue 
certifications and statements will charge a reasonable fee that covers 
the cost of their respective processes.
    Only one comment was received regarding what might constitute a 
reasonable period of time within which a credentialing organization 
would be required to issue certificates. The commenter suggested that 
60 days would be an appropriate time period.
    The DHS has decided to accommodate this concern. As the comment 
notes, this rule provides at 8 CFR 212.15(k)(4)(x) that certificates 
must be provided to applicants in a timely manner. The BCIS shares the 
commenter's concern that the certification requirement may unduly delay 
the recruitment of foreign health care workers and adversely affect 
health care in the United States. The BCIS notes that in such a case, 
it retains authority to commence termination proceedings against a 
certifying organization if the situation warrants. The BCIS may also 
provide other remedies, such as a waiver under section 212(d)(3) of the 
Act of the certification requirement in individual cases upon request. 
Such a waiver will only facilitate a determination of admissibility in 
the context of an application for admission, change of status, and/or 
extension of stay, however, and the alien must continue the process of 
obtaining the certificate as described in 8 CFR 212.15(n)(2)(i). The 
BCIS intends to monitor this situation and welcomes input from the 
public on the performance of certifying organizations.
    Finally, it should be noted that the proposed criteria for awarding 
and governing certificate holders had the unintended effect of 
requiring an alien to submit evidence of passage of the profession's 
licensing or certification examination when in fact the statute permits 
an alien to demonstrate that he or she has passed the profession's 
licensing or certification examination or a test predicting the success 
on such an examination, if a majority of states licensing the 
profession recognize such a predictor test. After consultation with 
HHS, the DHS has amended language at 8 CFR 212.15(k)(7)(i) to clarify 
that health care workers have the option to demonstrate passage of an 
acceptable predictor test for purposes of obtaining health care worker 
certification.

Process for Terminating an Organization's Authorization To Issue 
Certifications

    The proposed rule provided that, upon notification that an 
authorized credentialing organization has been convicted, or the 
directors or officers of an authorized credentialing organization have 
individually been convicted, of a violation of state or federal laws, 
so that the fitness of the organization to continue to issue 
certificates is called into question, the DHS shall automatically 
terminate authorization to issue certificates via notice to the 
credentialing organization.
    Upon receipt or discovery of information that the credentialing 
organization is no longer complying with the standards contained in 8 
CFR 212.15(k), or upon receipt or discovery of information that 
termination of the organization's approval is otherwise warranted, the 
DHS will issue a Notice of Intent to Terminate Authorization to Issue 
Certificates to Foreign Health Care Workers to the credentialing 
organization. The credentialing organization will be given 30 days from 
the date of the Notice of Intent to Terminate Authorization to Issue 
Certificates to Foreign Health Care Workers to rebut or cure the 
allegations made in the DHS' notice.
    DHS will submit any information received in response to the Notice 
to HHS upon receipt. Thirty days after the date of the Notice of Intent 
to Terminate, the DHS will request an opinion from HHS regarding 
whether the organization's authorization should be terminated and 
forward any additional evidence. The DHS shall accord HHS' opinion 
great weight in determining whether the authorization should be 
terminated. After consideration of the organization's response, if any, 
to the Notice of Intent to Terminate, and of HHS' opinion, the DHS will 
provide the organization with a written decision.
    The DHS's decision terminating an organization's authorization may 
be appealed to the AAO pursuant to 8 CFR 103.3. Termination of 
credentialing

[[Page 43912]]

status will occur on the date of the decision and remain in effect 
until and unless the terminated organization reapplies, with fee, for 
credentialing status and is approved, or its appeal of the termination 
decision is sustained by the AAO. There is no waiting period for an 
organization to re-apply for credentialing status.
    The DHS received six comments in response to the DHS's proposal on 
the termination of an organization's authorization to issue 
certifications. One commenter stated that the two grounds for 
termination of an organization's approval were sufficient and that no 
further grounds should be added to the regulation. One commenter 
suggested that an organization's authorization should be terminated 
only if the organization has failed to comply with a material term of 
its authorization. A technical violation should not be grounds for 
termination. One commenter suggested that HHS should have 30 days to 
respond to the DHS's Notice of Intent to Terminate. One commenter 
suggested that the term ``or other adverse information'' contained in 
the proposed rule at 8 CFR 215.15(m)(2) is too vague. Finally, CGFNS 
stated that it should be permitted to issue certifications while the 
appeal of the termination decision is pending at the AAO.
    The DHS will not modify the language contained in the proposed rule 
relating to the termination process. While certain portions of the 
regulatory language may be vague, the regulatory language is 
sufficiently clear to provide the required protection to the public. 
Further, the term ``or other adverse information'' provides the DHS 
with a vehicle to institute termination proceedings based on situations 
that arise that cannot be predicted at this time. Further, the DHS will 
not require HHS to respond to the DHS's termination notice within any 
specific time period because some issues are far too complex to be 
decided in arbitrarily established timeframes. Finally, although CGFNS 
has been specifically identified in the statute as an organization 
authorized to issue certifications, there is nothing in the statutory 
language that requires the DHS to establish a separate process to 
determine whether their authorization to issue certifications should be 
terminated for any of the reasons described in this rule.
    This rule also clarifies that the immediate termination provisions 
of 8 CFR 212(n)(1) may be triggered upon receipt of any information 
calling into question the entity's fitness to issue certificates. For 
example, national security concerns, or issues relating to fraud, may 
not lead to prosecution but certainly relate to the fitness of the 
organization to issue certificates. This clarification has been made 
necessary by events and issues identified during the course of the DHS' 
administration of this program since the proposed rule. The lack of a 
criminal prosecution or conviction in cases involving national security 
does not reduce the need to act appropriately to protect the public in 
such cases.

Revocation of Certificates

    The proposed rule provided that a credentialing organization must 
develop policies and procedures for the revocation of certificates at 
any time if it finds that the certificate holder was not eligible to 
receive the certificate at the time it was issued. These policies and 
procedures include notification to the DHS, via the Nebraska Service 
Center, that a certificate has been revoked. The DHS may then take any 
appropriate action against the individual alien, including revocation 
of the petition, and initiation of removal proceedings under section 
240 of the Act.
    Three commenters responded to this provision. One commenter 
suggested that an alien's certification should be revoked if the alien 
does not obtain a license to practice within 1 year of the issuance of 
the certification. Another commenter suggested that the certification 
should be revoked if the alien's ability to practice in the occupation 
is restricted.
    The DHS will not adopt the first suggestion. Certifications must be 
used within 5 years of their issuance. The DHS can envision a number of 
situations where the alien may be unable to obtain licensure within 1 
year of issuance of the certification. In fact, in the case of EB 
petitions, there is no regulatory or statutory requirement that the 
alien ever obtain a license. Further, sections 212(a)(5)(C) and 212(r) 
of the Act are merely grounds of inadmissibility to the United States 
and therefore address an alien's ability to enter the United States and 
immediately begin the intended employment. They were not designed to 
regulate the practice of health care or the continuing qualifications 
of health care workers within the United States.
    However, the DHS is concerned about events that may occur 
subsequent to an alien's certification and the effect those events may 
have upon an alien's admissibility to and status in the United States. 
This final rule therefore adopts the second commenter's suggestion and 
provides that an organization issuing certificates must include in its 
revocation process a mechanism to revoke a certificate when it learns 
that a holder is no longer eligible to hold a certificate.
    The third commenter suggested that an alien that is issued a 
certification should be required to report employment information to 
the credentialing organization which will then be reported to the DHS. 
This comment will not be adopted because the role of credentialing 
organizations is to review a health care worker's qualifications, 
including education, training, license, and experience. The role of 
credentialing organizations does not include making a determination 
that an employment offer is valid and that the alien is continuing to 
work for the employer.

Form of the Health Care Worker Certification or Foreign Nurse Certified 
Statement

    The proposed rule at 8 CFR 212.15(f) described the content of the 
certificate. The proposed rule at 8 CFR 212.15(h) described the content 
of the certified statement. The proposed rule provided that the 
certification should contain the following information:
    (1) The name, designated point of contact to verify the validity of 
the certificate, address, and telephone number of the certifying 
organization;
    (2) The date the certificate was issued;
    (3) The health care occupation for which the certificate was 
issued; and
    (4) The alien's name, and date and place of birth.
    The proposed rule also provided that the certificate or certified 
statement does not constitute professional authorization to practice in 
that health care occupation.
    The DHS received one comment regarding the information that should 
be included on the certification. The commenter suggested that each 
certification should contain the regulatory language indicating that 
the certification did not grant the holder authority to work in a 
health care occupation.
    The DHS will not adopt this suggestion because it is unnecessary. A 
health care worker certificate or certified statement is evidence of an 
alien's admissibility under section 212(a) of the Act and not an 
employment authorization document. Acceptable employment authorization 
documents are enumerated under 8 CFR 274a. An alien who has made an 
application for a certification will be aware of the difference between 
the immigration requirements for entry in order to work in a covered 
health care

[[Page 43913]]

occupation and the various state licensure requirements required to 
practice his or her occupation in the United States. In addition, the 
DHS has limited the information required on the certification to 
generally address the identity of the certificate holder and his or her 
admissibility under section 212(a)(5)(C) or 212(r) of the Act, rather 
than the certificate holder's authority to practice in the health care 
occupation.
    Another commenter stated that an organization should not issue a 
certification until such time as the alien obtains a United States 
license to practice in his or her occupation. This comment will not be 
adopted because some aliens, e.g., EB immigrants and certain 
nonimmigrants subject to this rule, such as aliens with extraordinary 
ability (O-1) and exchange visitors (J-1), are not required to satisfy 
state licensure requirements for classification.
    One commenter noted that the proposed rule did not contain a 
description of what an approved organization was required to verify 
before it issued a certification. The commenter noted that the DHS had 
previously required approved organizations to examine the alien's 
education, training, and license prior to issuing a certification. This 
information was unintentionally omitted from the proposed rule. The DHS 
will amend 8 CFR 215.15(f) to include this information.

English Language Scores for Certification

    As stated in the proposed rule, HHS, in consultation with DoED, is 
required to establish a level of competence in oral and written English 
appropriate for the health care field 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. The statute vests the Secretary 
of HHS with the ``sole discretion'' to determine the standardized tests 
and appropriate minimum scores. In developing the English language test 
scores, HHS consulted with DoED and appropriate health care 
professional organizations. HHS also examined a study sponsored in part 
by NBCOT entitled ``Standards for Examinations Assessing English as a 
Second Language.'' The scores reflect the current industry requirements 
for particular health care occupations.
    One commenter suggested that the DHS adopt separate scores and a 
specific test for the occupation of physician assistant. This comment 
will not be adopted in this rule because HHS has not designated a 
separate test and score for the occupation.
    One commenter noted that the DHS had failed to specify which 
modules of the International English Language Testing System (IELTS) 
would be required for the covered occupations. This information was 
unintentionally omitted from the proposed rule. The DHS will amend 8 
CFR 215.15(g)(4) to clarify when an Academic and/or General Module will 
be required for a covered health care occupation.
    The HHS had initially identified four testing services which 
conduct a nationally recognized, commercially available, standardized 
assessment as contemplated in the statute. The four testing services 
were the Educational Testing Service (ETS), the Michigan English 
Language Assessment Battery (MELAB), the Test of English in 
International Communication (TOEIC) Service International, and the 
IELTS. The proposed regulation at 8 CFR 212.15(g) lists the tests and 
appropriate scores as determined by HHS for each occupation.
    The DHS received 29 comments in response to the English language 
testing proposals. Eight commenters agreed that the IELTS and TOEIC 
tests should be included in the final rule. Six commenters expressed 
dissatisfaction with the test of spoken English (TSE) given by ETS, 
asserting that it was too difficult to pass and that it prevented 
health care facilities from recruiting qualified workers. One commenter 
even suggested that the test intentionally discriminated against 
certain nationalities.
    The English test offered by ETS has been used by colleges, 
universities, and accrediting organizations for years to test English 
language skills. Both HHS and the DoED have reviewed this test prior to 
its inclusion in the previously published interim rules and the 
proposed rule. The DHS is not persuaded that the test is not a valid 
test of English language skills and, as a result, the option of TSE 
will remain in this final rule.
    The DHS also proposed that, as an alternative to listing the tests 
and appropriate scores by Interim Rule, the DHS would designate, by a 
separate and comprehensive public notice in the Federal Register, the 
list of tests and appropriate scores. The DHS would maintain this list 
on its Web site. This method would allow the DHS to update the list of 
tests and scores more quickly than through publication of interim 
rules. The DHS will continue to coordinate with the HHS and the DoED to 
make the designation of tests and appropriate scores needed to satisfy 
the English proficiency requirement.
    The DHS received four comments on this proposal. Three commenters 
suggested that the DHS adopt the alternative method of advising the 
public of the approved English tests by a notice in the Federal 
Register while one commenter suggested that the use of an interim rule 
would be more appropriate.
    After consideration of the comments, the DHS will adopt the 
alternative method discussed in the proposed rule. In view of the 
extensive governmental review before a test is approved, it is not 
likely that the comments received in response to an interim rule would 
be beneficial. As a result, this final rule at 8 CFR 215.15(g)(4)(iv) 
provides that the DHS will notify the public of new approved English 
testing services by publishing a notice in the Federal Register. The 
DHS will also maintain the list of approved English tests and the 
appropriate scores on its Web site at http://www.immigration.gov.
    One commenter noted that the current availability of English tests 
did not meet the demand creating significant delays for health care 
workers. To solve this problem, other testing services are encouraged 
to submit information concerning their testing services to the DHS, for 
HHS and DoED review, and credentialing organizations are encouraged to 
develop a test specifically designed to measure English language skills 
and to seek HHS approval of the test. As noted in the proposed rule, 
HHS has advised the DHS that graduates of health profession programs in 
Australia, Canada (except Quebec), Ireland, New Zealand, the United 
Kingdom, and the United States are deemed to have met the English 
language requirements. HHS has determined that aliens who have 
graduated from these programs have the requisite competency in oral and 
written English. The level of English that the graduates of these 
health profession programs would need in order to graduate is deemed 
equivalent to the level that would be demonstrated by achieving the 
minimum passing score on the tests previously described. Nurses who are 
eligible to present an alternate certified statement under section 
212(r) of the Act by definition have satisfied the English language 
requirements.
    Six commenters suggested that additional countries be added to the 
list of countries that should be exempt from the English language 
requirements. The list of countries has been furnished to HHS for their 
review for possible inclusion in the list of exempt countries.

[[Page 43914]]

    One commenter suggested that the English language test be separate 
and apart from the credentialing portion of the certification process. 
This suggestion cannot be adopted because it is contrary to the 
statute.
    Finally, after publication of the proposed rule, the DHS was 
notified that the MELAB no longer wishes to be designated as an 
approved English test for the purpose of issuing health care 
certifications. Therefore, MELAB has been removed from the list of 
approved English tests and is not included in this final rule. As a 
result, individuals who seek to meet the English language requirements 
will be required to do one of the following:
    (1) Take the three tests offered by ETS;
    (2) Take the TOEIC offered by TOEIC Service International, in 
addition to the test of spoken English and the test of written English 
offered by ETS; or
    (3) Take the IELTS examination.

Additional Comments Regarding the Proposed Rule

    Two commenters noted that the proposed rule did not contain a 
requirement that an organization was to verify that an alien either 
passed a predictor examination or the state licensing examination for 
his or her occupation. One of the commenters noted that the DHS had 
previously listed this requirement in the previously published interim 
rules.
    The DHS has unintentionally failed to provide a description of what 
an organization is required to verify before it can issue a 
certification under section 212(a)(5)(C) of the Act. This information 
is now listed at 8 CFR 215.15(f).
    Three commenters stated that nurses should not be required to take 
the predictor examination if they have passed the NCLEX-RN state 
licensing examination. The statute at sections 212(a)(5)(C) and 212(r) 
of the Act requires that a certifying entity verify that an alien has 
passed either the profession's licensing or certification examination, 
or a predictor test if a majority of states licensing the profession in 
which the alien intends to work recognize such a predictor test. The 
DHS has added language at 8 CFR 212.15(f)(1)(iv) to clarify that a 
nurse who is obtaining a certificate under section 212(a)(5)(C) of the 
Act must demonstrate that they have passed the profession's licensing 
examination (NCLEX-RN) or the predictor test.
    One commenter stated that some nurses are not eligible to obtain a 
certified statement as described in section 212(r) of the Act. Section 
212(r) of the Act was created as an alternative to the certification 
process of section 212(a)(5)(C) of the Act. It was specifically 
designed to accommodate a limited number of nurses who met certain 
criteria and not all nonimmigrant nurses.
    Finally, CGFNS stated that the language in the proposed rule 
appeared to preclude them from obtaining authorization to issue 
certifications to audiologists. The DHS has corrected this oversight by 
amending the language at 8 CFR 215.15(j)(2) to include audiologists 
among the covered occupations.

Regulatory Flexibility Act

    I have reviewed this regulation, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, I have 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities. It is projected that there 
will be, at most, 21 small businesses that apply to the Department of 
Homeland Security to issue certificates for health care workers. 
Although these small entities are required to pay a fee when submitting 
their applications, these small entities may recoup this expense if 
they charge aliens who must obtain a foreign health care worker 
certificate.

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 Homeland Security to 
be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, this 
regulation has been submitted to OMB for review. The Department of 
Homeland Security has assessed both the costs and the benefits of this 
rule as required by Executive Order 12866, section 1(b)(6), and has 
made a reasoned determination that the benefits of this rule justify 
its costs. Briefly, that assessment is as follows:
    The Department of Homeland Security has determined that any entity 
seeking authorization to issue health care worker certifications must 
apply for authorization on Form I-905. The Department of Homeland 
Security determined that $230 was the appropriate fee for Form I-905 
after comparing the processing of the form to the process involved with 
Form I-17, Petition for Approval of School for Attendance by 
Nonimmigrant Student, which has a processing fee of $230. The 
Department of Homeland Security has estimated that there will be 
approximately 10 applicants who will each have a time burden of 
approximately 4 hours, and who will be required to pay a total of 
$2,300. Once the Form I-905 is approved, an authorized entity will be 
authorized to issue health care worker certification for a period of 5 
years, and will be able to recoup the costs of the Form I-905 by 
charging a fee for each certificate that it issues.
    Each credentialing organization may set its own fee to recover the 
costs of issuing of a health care worker certificate, although the 
price may vary between organizations. The CGFNS is the organization 
that is currently authorized to issue certifications to the largest 
number of applicants because it is authorized to issue certifications 
to all seven occupations. The Department of Homeland Security has 
estimated that the total time burden associated with each certification 
is approximately 220 minutes. The current price for a CGFNS certificate 
or certified statement is approximately $325, which is charged to an 
individual alien. In some cases, a petitioning employer may choose to 
pay on behalf of the alien. Finally, the Department of Homeland 
Security has determined that the benefit to the United States public of 
the statute requiring the issuance of certificates will be to ensure 
that all health care workers covered by the regulations, including all 
nonimmigrants, have met the same minimum requirements with regard to an 
evaluation of their credentials, licensing, training and English 
language ability before commencing employment in their respective 
occupations. Even in cases where all states require a foreign health

[[Page 43915]]

care worker to be licensed to practice within the United States, as in 
the case of nurses, the underlying requirements for licensure differ 
from state to state. This rule will ensure that uniformly qualified 
foreign health care professionals enter the United States workforce and 
that foreign health care workers and the Department of Homeland 
Security are in compliance with the statutory requirements of section 
212(a)(5)(C) of the Act.

Executive Order 13132

    The rule 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 section 6 of Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.

Executive Order 12988 Civil Justice Reform

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

Paperwork Reduction Act of 1995

    The information collection requirement contained in this rule (Form 
I-905) (OMB Control Number 1115-0238) has been approved for use by OMB 
under the Paperwork Reduction Act. The information required on the 
health care certificate or certified statement (OMB Control Number 
1115-0226) has been revised to reflect that a certificate must 
demonstrate that an alien has met the requirements of section 
212(a)(5)(C) of the Act. This revision was submitted to OMB for review 
in accordance with the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government Agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 212

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

8 CFR Part 214

    Administrative practice and procedures, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 248

    Aliens, Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 103 B--POWERS AND DUTIES OF SERVICE OFFICER; AVAILABILITY OF 
SERVICE RECORDS

0
1. The authority citation for part 103 continues 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, 1982 Comp., 
p.166; 8 CFR part 2.


0
2. Section 103.7(b)(1) is amended by adding a new entry for the Form 
``I-905'' to the list of fees in alpha/numeric sequence, to read as 
follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (l) * * *
* * * * *
    Form I-905, Application for authorization to issue certification 
for health care workers--$230.
* * * * *

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

0
3. The authority citation for part 212 continues to read as follows:

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

0
4. Section 212.15 is revised to read as follows:


Sec.  212.15  Certificates for foreign health care workers.

    (a) General certification requirements. (1) Except as provided in 
paragraph (b) or paragraph (d)(1) of this section, any alien who seeks 
admission to the United States as an immigrant or as a nonimmigrant for 
the primary purpose of performing labor in a health care occupation 
listed in paragraph (c) of this section is inadmissible unless the 
alien presents a certificate from a credentialing organization, listed 
in paragraph (e) of this section.
    (2) In the alternative, an eligible alien who seeks to enter the 
United States for the primary purpose of performing labor as a nurse 
may present a certified statement as provided in paragraph (h) of this 
section.
    (3) A certificate or certified statement described in this section 
does not constitute professional authorization to practice in that 
health care occupation.
    (b) Inapplicability of the ground of inadmissibility. This section 
does not apply to:
    (1) Physicians;
    (2) Aliens seeking admission to the United States to perform 
services in a non-clinical health care occupation. A non-clinical care 
occupation is one in which the alien is not required to perform direct 
or indirect patient care. Occupations which are considered to be non-
clinical include, but are not limited to, medical teachers, medical 
researchers, and managers of health care facilities;
    (3) Aliens coming to the United States to receive training as an H-
3 nonimmigrant, or receiving training as part of an F or J nonimmigrant 
program.
    (4) The spouse and dependent children of any immigrant or 
nonimmigrant alien;
    (5) Any alien applying for adjustment of status to that of a 
permanent resident under any provision of law other than under section 
245 of the Act, or any alien who is seeking adjustment of status under 
section 245 of the Act on the basis of a relative visa petition 
approved under section 203(a) of the Act, or any alien seeking 
adjustment of status under section 245 of the Act on the basis of an 
employment-based petition approved pursuant to section 203(b) of the 
Act for employment that does not fall under one of the covered health 
care occupations listed in paragraph (c) of this section.
    (c) Covered health care occupations. With the exception of the 
aliens described in paragraph (b) of this section, this paragraph (c) 
applies to any alien seeking admission to the United States to perform 
labor in one of the following health care occupations, regardless of 
where he or she received his or her education or training:
    (1) Licensed Practical Nurses, Licensed Vocational Nurses, and 
Registered Nurses.
    (2) Occupational Therapists.
    (3) Physical Therapists.
    (4) Speech Language Pathologists and Audiologists.
    (5) Medical Technologists (Clinical Laboratory Scientists).
    (6) Physician Assistants.

[[Page 43916]]

    (7) Medical Technicians (Clinical Laboratory Technicians)
    (d) Presentation of certificate or certified statements. (1) Aliens 
required to obtain visas. Except as provided in paragraph (n) of this 
section, if 8 CFR 212.1 requires an alien who is described in paragraph 
(a) of this section and who is applying for admission as a nonimmigrant 
seeking to perform labor in a health care occupation as described in 
this section to obtain a nonimmigrant visa, the alien must present a 
certificate or certified statement to a consular officer at the time of 
visa issuance and to the Department of Homeland Security (DHS) at the 
time of admission. The certificate or certified statement must be valid 
at the time of visa issuance and admission at a port-of-entry. An alien 
who has previously presented a foreign health care worker certification 
or certified statement for a particular health care occupation will be 
required to present it again at the time of visa issuance or each 
admission to the United States.
    (2) Aliens not requiring a nonimmigrant visa. Except as provided in 
paragraph (n) of this section, an alien described in paragraph (a) of 
this section who, pursuant to 8 CFR 212.1, is not required to obtain a 
nonimmigrant visa to apply for admission to the United States must 
present a certificate or certified statement as provided in this 
section to an immigration officer at the time of initial application 
for admission to the United States to perform labor in a particular 
health care occupation. An alien who has previously presented a foreign 
health care worker certification or certified statement for a 
particular health care occupation will be required to present it again 
at the time of each application for admission.
    (e) Approved credentialing organizations for health care workers. 
An alien may present a certificate from any credentialing organization 
listed in this paragraph (e) with respect to a particular health care 
field. In addition to paragraphs (e)(1) through (e)(3) of this section, 
the DHS will notify the public of additional credentialing 
organizations through the publication of notices in the Federal 
Register.
    (1) The Commission on Graduates of Foreign Nursing Schools (CGFNS) 
is authorized to issue certificates under section 212(a)(5)(C) of the 
Act for nurses, physical therapists, occupational therapists, speech-
language pathologists and audiologists, medical technologists (also 
known as clinical laboratory scientists), medical technicians (also 
known as clinical laboratory technicians), and physician assistants.
    (2) The National Board for Certification in Occupational Therapy 
(NBCOT) is authorized to issue certificates in the field of 
occupational therapy pending final adjudication of its credentialing 
status under this part.
    (3) The Foreign Credentialing Commission on Physical Therapy 
(FCCPT) is authorized to issue certificates in the field of physical 
therapy pending final adjudication of its credentialing status under 
this part.
    (f) Requirements for issuance of health care certification. (1) 
Prior to issuing a certification to an alien, the organization must 
verify the following:
    (i) That the alien's education, training, license, and experience 
are comparable with that required for an American health care worker of 
the same type;
    (ii) That the alien's education, training, license, and experience 
are authentic and, in the case of a license, unencumbered;
    (iii) That the alien's education, training, license, and experience 
meet all applicable statutory and regulatory requirements for admission 
into the United States. This verification is not binding on the DHS; 
and
    (iv) Either that the alien has passed a test predicting success on 
the occupation's licensing or certification examination, provided such 
a test is recognized by a majority of states licensing the occupation 
for which the certification is issued, or that the alien has passed the 
occupation's licensing or certification examination.
    (2) A certificate issued under section 212(a)(5)(C) of the Act must 
contain the following:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certificate;
    (ii) The date the certificate was issued;
    (iii) The health care occupation for which the certificate was 
issued; and
    (iv) The alien's name, and date and place of birth.
    (g) English language requirements. (1) With the exception of those 
aliens described in paragraph (g)(2) of this section, every alien must 
meet certain English language requirements in order to obtain a 
certificate. The Secretary of HHS has sole authority to set standards 
for these English language requirements, and has determined that an 
alien must have a passing score on one of the three tests listed in 
paragraph (g)(3) of this section before he or she can be granted a 
certificate. HHS will notify The Department of Homeland Security of 
additions or deletions to this list, and The Department of Homeland 
Security will publish such changes in the Federal Register.
    (2) The following aliens are exempt from the English language 
requirements:
    (i) Alien nurses who are presenting a certified statement under 
section 212(r) of the Act; and
    (ii) Aliens who have graduated from a college, university, or 
professional training school located in Australia, Canada (except 
Quebec), Ireland, New Zealand, the United Kingdom, or the United 
States.
    (3) The following English testing services have been approved by 
the Secretary of HHS:
    (i) Educational Testing Service (ETS).
    (ii) Test of English in International Communication (TOEIC) Service 
International.
    (iii) International English Language Testing System (IELTS).
    (4) Passing English test scores for various occupations.
    (i) Occupational and physical therapists. An alien seeking to 
perform labor in the United States as an occupational 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. The certifying organizations 
shall not accept the results of the TOEIC, or the IELTS for the 
occupation of occupational therapy or physical therapy.
    (ii) Registered nurses and other health care workers requiring the 
attainment of a baccalaureate degree. An alien coming to the United 
States to perform labor as a registered nurse (other than a nurse 
presenting a certified statement under section 212(r) of the Act) or to 
perform labor in another health care occupation requiring a 
baccalaureate degree (other than occupational or physical therapy) must 
obtain one of the following combinations of scores to obtain a 
certificate:
    (A) ETS: TOEFL: Paper-Based 540, Computer-Based 207; TWE: 4.0; TSE: 
50;
    (B) TOEIC Service International: TOEIC: 725; plus TWE: 4.0 and TSE: 
50; or
    (C) IELTS: 6.5 overall with a spoken band score of 7.0. This would 
require the Academic module.
    (iii) Occupations requiring less than a baccalaureate degree. An 
alien coming to the United States to perform labor in a health care 
occupation that does not require a baccalaureate degree must obtain one 
of the following combinations of scores to obtain a certificate:

[[Page 43917]]

    (A) ETS: TOEFL: Paper-Based 530, Computer-Based 197; TWE: 4.0; TSE: 
50;
    (B) TOEIC Service International: TOEIC: 700; plus TWE 4.0 and TSE: 
50; or
    (C) IELTS: 6.0 overall with a spoken band score of 7.0. This would 
allow either the Academic or the General module.
    (h) Alternative certified statement for certain nurses. (1) CGFNS 
is authorized to issue certified statements under section 212(r) of the 
Act for aliens seeking to enter the United States to perform labor as 
nurses. The DHS will notify the public of new organizations that are 
approved to issue certified statements through notices published in the 
Federal Register.
    (2) An approved credentialing organization may issue a certified 
statement to an alien if each of the following requirements is 
satisfied:
    (i) The alien has a valid and unrestricted license as a nurse in a 
state where the alien intends to be employed and such state verifies 
that the foreign licenses of alien nurses are authentic and 
unencumbered;
    (ii) The alien has passed the National Council Licensure 
Examination for registered nurses (NCLEX-RN);
    (iii) The alien is a graduate of a nursing program in which the 
language of instruction was English;
    (iv) The nursing program was located in Australia, Canada (except 
Quebec), Ireland, New Zealand, South Africa, the United Kingdom, or the 
United States; or in any other country designated by unanimous 
agreement of CGFNS and any equivalent credentialing organizations which 
have been approved for the certification of nurses and which are listed 
at paragraph (e) of this section; and
    (v) The nursing program was in operation on or before November 12, 
1999, or has been approved by unanimous agreement of CGFNS and any 
equivalent credentialing organizations that have been approved for the 
certification of nurses.
    (3) An individual who obtains a certified statement need not comply 
with the certificate requirements of paragraph (f) or the English 
language requirements of paragraph (g) of this section.
    (4) A certified statement issued to a nurse under section 212(r) of 
the Act must contain the following information:
    (i) The name, address, and telephone number of the credentialing 
organization, and a point of contact to verify the validity of the 
certified statement;
    (ii) The date the certified statement was issued; and
    (iii) The alien's name, and date and place of birth.
    (i) Streamlined certification process. (1) Nurses. An alien nurse 
who has graduated from an entry level program accredited by the 
National League for Nursing Accreditation Commission (NLNAC) or the 
Commission on Collegiate Nursing Education (CCNE) is exempt from the 
educational comparability review and English language proficiency 
testing.
    (2) Occupational Therapists. An alien occupational therapist who 
has graduated from a program accredited by the Accreditation Council 
for Occupational Therapy Education (ACOTE) of the American Occupational 
Therapy Association (AOTA) is exempt from the educational comparability 
review and English language proficiency testing.
    (3) Physical therapists. An alien physical therapist who has 
graduated from a program accredited by the Commission on Accreditation 
in Physical Therapy Education (CAPTE) of the American Physical Therapy 
Association (APTA) is exempt from the educational comparability review 
and English language proficiency testing.
    (4) Speech language pathologists and audiologists. An alien speech 
language pathologists and/or audiologist who has graduated from a 
program accredited by the Council on Academic Accreditation in 
Audiology and Speech Language Pathology (CAA) of the American Speech-
Language-Hearing Association (ASHA) is exempt from the educational 
comparability review and English language proficiency testing.
    (j) Application process for credentialing organizations. (1) 
Organizations other than CGFNS. An organization, other than CGFNS, 
seeking to obtain approval to issue certificates to health care 
workers, or certified statements to nurses shall submit Form I-905, 
Application for Authorization to Issue Certification for Health Care 
Workers, and all accompanying required evidence, to the Director, 
Nebraska Service Center, in duplicate with the appropriate fee 
contained in 8 CFR 103.7(b)(1). An organization seeking authorization 
to issue certificates or certified statements must agree to submit all 
evidence required by the DHS and, upon request, allow the DHS to review 
the organization's records related to the certification process. As 
required on Form I-905, the application must:
    (i) Clearly describe and identify the organization seeking 
authorization to issue certificates;
    (ii) List the occupations for which the organization desires to 
provide certificates;
    (iii) Describe how the organization substantially meets the 
standards described at paragraph (k) of this section;
    (iv) Describe the organization's expertise, knowledge, and 
experience in the health care occupation(s) for which it desires to 
issue certificates;
    (v) Provide a point of contact;
    (vi) Describe the verification procedure the organization has 
designed in order for the DHS to verify the validity of a certificate; 
and
    (vii) Describe how the organization will process and issue in a 
timely manner the certificates.
    (2) Applications filed by CGFNS. (i) CGFNS shall submit Form I-905 
to the Director, Nebraska Service Center, to ensure that it will be in 
compliance with the regulations governing the issuance and content of 
certificates to nurses, physical therapists, occupational therapists, 
speech-language pathologists and audiologists, medical technologists 
(also known as clinical laboratory scientists), medical technicians 
(also known as clinical laboratory technicians), and physician 
assistants under section 212(a)(5)(C) of the Act, or issuing certified 
statements to nurses under section 212(r) of the Act.
    (ii) Prior to issuing certificates for any other health care 
occupations, CGFNS shall submit Form I-905, Application for 
Authorization to Issue Certification for Health Care Workers, to the 
Director, Nebraska Service Center with the appropriate fee contained in 
8 CFR 103.7(b)(1) for authorization to issue such certificates. The DHS 
will evaluate CGFNS' expertise with respect to the particular health 
care occupation for which authorization to issue certificates is 
sought, in light of CGFNS' statutory designation as a credentialing 
organization.
    (3) Procedure for review of applications by credentialing 
organizations. (i) After receipt of Form I-905, the Director, Nebraska 
Service Center shall, in all cases, forward a copy of the application 
and supporting documents to the Secretary of HHS in order to obtain an 
opinion on the merits of the application. The DHS will not render a 
decision on the request until the Secretary of HHS provides an opinion. 
The DHS shall accord the Secretary of HHS' opinion great weight in 
reaching its decision. The DHS may deny the organization's request 
notwithstanding the favorable recommendation from the Secretary of HHS, 
on grounds unrelated to the

[[Page 43918]]

credentialing of health care occupations or health care services.
    (ii) The DHS will notify the organization of the decision on its 
application in writing and, if the request is denied, of the reasons 
for the denial. Approval of authorization to issue certificates to 
foreign health care workers or certified statements to nurses will be 
made in 5-year increments, subject to the review process described at 
paragraph (l) of this section.
    (iii) If the application is denied, the decision may be appealed 
pursuant to 8 CFR 103.3 to the Associate Commissioner for Examinations.
    (k) Standards for credentialing organizations. The DHS will 
evaluate organizations, including CGFNS, seeking to obtain approval 
from the DHS to issue certificates for health care workers, or 
certified statements for nurses. Any organization meeting the standards 
set forth in paragraph (k)(1) of this section can be eligible for 
authorization to issue certificates. While CGFNS has been specifically 
listed in the statute as an entity authorized to issue certificates, it 
is not exempt from governmental oversight. All organizations will be 
reviewed, including CGFNS, to guarantee that they continue to meet the 
standards required of all certifying organizations, under the 
following:
    (1) Structure of the organization. (i) The organization shall be 
incorporated as a legal entity.
    (ii)(A) The organization shall be independent of any organization 
that functions as a representative of the occupation or profession in 
question or serves as or is related to a recruitment/placement 
organization.
    (B) The DHS shall not approve an organization that is unable to 
render impartial advice regarding an individual's qualifications 
regarding training, experience, and licensure.
    (C) The organization must also be independent in all decision 
making matters pertaining to evaluations and/or examinations that it 
develops including, but not limited to: policies and procedures; 
eligibility requirements and application processing; standards for 
granting certificates and their renewal; examination content, 
development, and administration; examination cut-off scores, excluding 
those pertaining to English language requirements; grievance and 
disciplinary processes; governing body and committee meeting rules; 
publications about qualifying for a certificate and its renewal; 
setting fees for application and all other services provided as part of 
the screening process; funding, spending, and budget authority related 
to the operation of the certification organization; ability to enter 
into contracts and grant arrangements; ability to demonstrate adequate 
staffing and management resources to conduct the program(s) including 
the authority to approve selection of, evaluate, and initiate dismissal 
of the chief staff member.
    (D) An organization whose fees are based on whether an applicant 
receives a visa may not be approved.
    (iii) The organization shall include the following representation 
in the portion of its organization responsible for overseeing 
certification and, where applicable, examinations:
    (A) Individuals from the same health care discipline as the alien 
health care worker being evaluated who are eligible to practice in the 
United States; and
    (B) At least one voting public member to represent the interests of 
consumers and protect the interests of the public at large. The public 
member shall not be a member of the discipline or derive significant 
income from the discipline, its related organizations, or the 
organization issuing the certificate.
    (iv) The organization must have a balanced representation such that 
the individuals from the same health care discipline, the voting public 
members, and any other appointed individuals have an equal say in 
matters relating to credentialing and/or examinations.
    (v) The organization must select representatives of the discipline 
using one of the following recommended methods, or demonstrate that it 
has a selection process that meets the intent of these methods:
    (A) Be selected directly by members of the discipline eligible to 
practice in the United States;
    (B) Be selected by members of a membership organization 
representing the discipline or by duly elected representatives of a 
membership organization; or
    (C) Be selected by a membership organization representing the 
discipline from a list of acceptable candidates supplied by the 
credentialing body.
    (vi) The organization shall use formal procedures for the selection 
of members of the governing body that prohibit the governing body from 
selecting a majority of its successors. Not-for-profit corporations 
which have difficulty meeting this requirement may provide in their 
applications evidence that the organization is independent, and free of 
material conflicts of interest regarding whether an alien receives a 
visa.
    (vii) The organization shall be separate from the accreditation and 
educational functions of the discipline, except for those entities 
recognized by the Department of Education as having satisfied the 
requirement of independence.
    (viii) The organization shall publish and make available a document 
which clearly defines the responsibilities of the organization and 
outlines any other activities, arrangements, or agreements of the 
organization that are not directly related to the certification of 
health care workers.
    (2) Resources of the organization. (i) The organization shall 
demonstrate that its staff possess the knowledge and skills necessary 
to accurately assess the education, work experience, licensure of 
health care workers, and the equivalence of foreign educational 
institutions, comparable to those of United States-trained health care 
workers and institutions.
    (ii) The organization shall demonstrate the availability of 
financial and material resources to effectively and thoroughly conduct 
regular and ongoing evaluations on an international basis.
    (iii) If the health care field is one for which a majority of the 
states require a predictor test, the organization shall demonstrate the 
ability to conduct examinations in those countries with educational and 
evaluation systems comparable to the majority of states.
    (iv) The organization shall have the resources to publish and make 
available general descriptive materials on the procedures used to 
evaluate and validate credentials, including eligibility requirements, 
determination procedures, examination schedules, locations, fees, 
reporting of results, and disciplinary and grievance procedures.
    (3) Candidate evaluation and testing mechanisms. (i) The 
organization shall publish and make available a comprehensive outline 
of the information, knowledge, or functions covered by the evaluation/
examination process, including information regarding testing for 
English language competency.
    (ii) The organization shall use reliable evaluation/examination 
mechanisms to evaluate individual credentials and competence that is 
objective, fair to all candidates, job related, and based on knowledge 
and skills needed in the discipline.
    (iii) The organization shall conduct ongoing studies to 
substantiate the reliability and validity of the evaluation/examination 
mechanisms.
    (iv) The organization shall implement a formal policy of periodic 
review of the evaluation/examination mechanism to ensure ongoing 
relevance of the mechanism with respect to knowledge and skills needed 
in the discipline.
    (v) The organization shall use policies and procedures to ensure 
that all

[[Page 43919]]

aspects of the evaluation/examination procedures, as well as the 
development and administration of any tests, are secure.
    (vi) The organization shall institute procedures to protect against 
falsification of documents and misrepresentation, including a policy to 
request each applicant's transcript(s) and degree(s) directly from the 
educational licensing authorities.
    (vii) The organization shall establish policies and procedures that 
govern the length of time the applicant's records must be kept in their 
original format.
    (viii) The organization shall publish and make available, at least 
annually, a summary of all screening activities for each discipline 
including, at least, the number of applications received, the number of 
applicants evaluated, the number receiving certificates, the number who 
failed, and the number receiving renewals.
    (4) Responsibilities to applicants applying for an initial 
certificate or renewal. (i) The organization shall not discriminate 
among applicants as to age, sex, race, religion, national origin, 
disability, or marital status and shall include a statement of 
nondiscrimination in announcements of the evaluation/examination 
procedures and renewal certification process.
    (ii) The organization shall provide all applicants with copies of 
formalized application procedures for evaluation/examination and shall 
uniformly follow and enforce such procedures for all applicants. 
Instructions shall include standards regarding English language 
requirements.
    (iii) The organization shall implement a formal policy for the 
periodic review of eligibility criteria and application procedures to 
ensure that they are fair and equitable.
    (iv) Where examinations are used, the organization shall provide 
competently proctored examination sites at least once annually.
    (v) The organization shall report examination results to applicants 
in a uniform and timely fashion.
    (vi) The organization shall provide applicants who failed either 
the evaluation or examination with information on general areas of 
deficiency.
    (vii) The organization shall implement policies and procedures to 
ensure that each applicant's examination results are held confidential 
and delineate the circumstances under which the applicant's 
certification status may be made public.
    (viii) The organization shall have a formal policy for renewing the 
certification if an individual's original certification has expired 
before the individual first seeks admission to the United States or 
applies for adjustment of status. Such procedures shall be restricted 
to updating information on licensure to determine the existence of any 
adverse actions and the need to re-establish English competency.
    (ix) The organization shall publish due process policies and 
procedures for applicants to question eligibility determinations, 
examination or evaluation results, and eligibility status.
    (x) The organization shall provide all qualified applicants with a 
certificate in a timely manner.
    (5) Maintenance of comprehensive and current information. (i) The 
organization shall maintain comprehensive and current information of 
the type necessary to evaluate foreign educational institutions and 
accrediting bodies for purposes of ensuring that the quality of foreign 
educational programs is equivalent to those training the same 
occupation in the United States. The organization shall examine, 
evaluate, and validate the academic and clinical requirements applied 
to each country's accrediting body or bodies, or in countries not 
having such bodies, of the educational institution itself.
    (ii) The organization shall also evaluate the licensing and 
credentialing system(s) of each country or licensing jurisdiction to 
determine which systems are equivalent to that of the majority of the 
licensing jurisdictions in the United States.
    (6) Ability to conduct examinations fairly and impartially. An 
organization undertaking the administration of a predictor examination, 
or a licensing or certification examination shall demonstrate the 
ability to conduct such examination fairly and impartially.
    (7) Criteria for awarding and governing certificate holders. (i) 
The organization shall issue a certificate after the education, 
experience, license, and English language competency have been 
evaluated and determined to be equivalent to their United States 
counterparts. In situations where a United States nationally recognized 
licensure or certification examination, or a test predicting the 
success on the licensure or certification examination, is offered 
overseas, the applicant must pass the examination or the predictor test 
prior to receiving certification. Passage of a test predicting the 
success on the licensure or certification examination may be accepted 
only if a majority of states (and Washington, DC) licensing the 
profession in which the alien intends to work recognize such a test.
    (ii) The organization shall have policies and procedures for the 
revocation of certificates at any time if it is determined that the 
certificate holder was not eligible to receive the certificate at the 
time that it was issued. If the organization revokes an individual's 
certificate, it must notify the DHS, via the Nebraska Service Center, 
and the appropriate state regulatory authority with jurisdiction over 
the individual's health care profession. The organization may not 
reissue a certificate to an individual whose certificate has been 
revoked.
    (8) Criteria for maintaining accreditation. (i) The organization 
shall advise the DHS of any changes in purpose, structure, or 
activities of the organization or its program(s).
    (ii) The organization shall advise the DHS of any major changes in 
the evaluation of credentials and examination techniques, if any, or in 
the scope or objectives of such examinations.
    (iii) The organization shall, upon the request of the DHS, submit 
to the DHS, or any organization designated by the DHS, information 
requested of the organization and its programs for use in investigating 
allegations of non-compliance with standards and for general purposes 
of determining continued approval as an independent credentialing 
organization.
    (iv) The organization shall establish performance outcome measures 
that track the ability of the certificate holders to pass United States 
licensure or certification examinations. The purpose of the process is 
to ensure that certificate holders pass United States licensure or 
certification examinations at the same pass rate as graduates of United 
States programs. Failure to establish such measures, or having a record 
showing an inability of persons granted certificates to pass United 
States licensure examinations at the same rate as graduates of United 
States programs, may result in a ground for termination of approval. 
Information regarding the passage rates of certificate holders shall be 
maintained by the organization and provided to HHS on an annual basis, 
to the DHS as part of the 5-year reauthorization application, and at 
any other time upon request by HHS or the DHS.
    (v) The organization shall be in ongoing compliance with other 
policies specified by the DHS.
    (l) DHS review of the performance of certifying organizations. The 
DHS will review credentialing organizations every 5 years to ensure 
continued compliance with the standards described in this section. Such 
review will occur

[[Page 43920]]

concurrent with the adjudication of a Form I-905 requesting 
reauthorization to issue health care worker certificates. The DHS will 
notify the credentialing organization in writing of the results of the 
review and request for reauthorization. The DHS may conduct a review of 
the approval of any request for authorization to issue certificates at 
any time within the 5-year period of authorization for any reason. If 
at any time the DHS determines that an organization is not complying 
with the terms of its authorization or if other adverse information 
relating to eligibility to issue certificates is developed, the DHS may 
initiate termination proceedings.
    (m) Termination of certifying organizations. (1) If the DHS 
determines that an organization has been convicted, or the directors or 
officers of an authorized credentialing organization have individually 
been convicted of the violation of state or federal laws, or other 
information is developed such that the fitness of the organization to 
continue to issue certificates or certified statements is called into 
question, the DHS shall automatically terminate authorization for that 
organization to issue certificates or certified statements by issuing 
to the organization a notice of termination of authorization to issue 
certificates to foreign health care workers. The notice shall reference 
the specific conviction that is the basis of the automatic termination.
    (2) If the DHS determines that an organization is not complying 
with the terms of its authorization or other adverse information 
relating to eligibility to issue certificates is uncovered during the 
course of a review or otherwise brought to the DHS' attention, or if 
the DHS determines that an organization currently authorized to issue 
certificates or certified statements has not submitted an application 
or provided all information required on Form I-905 within 6 months of 
July 25, 2003, the DHS will issue a Notice of Intent to Terminate 
authorization to issue certificates to the credentialing organization. 
The Notice shall set forth reasons for the proposed termination.
    (i) The credentialing organization shall have 30 days from the date 
of the Notice of Intent to Terminate authorization to rebut the 
allegations, or to cure the noncompliance identified in the DHS's 
notice of intent to terminate.
    (ii) DHS will forward to HHS upon receipt any information received 
in response to a Notice of Intent to Terminate an entity's 
authorization to issue certificates. Thirty days after the date of the 
Notice of Intent to Terminate, the DHS shall forward any additional 
evidence and shall request an opinion from HHS regarding whether the 
organization's authorization should be terminated. The DHS shall accord 
HHS' opinion great weight in determining whether the authorization 
should be terminated. After consideration of the rebuttal evidence, if 
any, and consideration of HHS' opinion, the DHS will promptly provide 
the organization with a written decision. If termination of 
credentialing status is made, the written decision shall set forth the 
reasons for the termination.
    (3) An adverse decision may be appealed pursuant to 8 CFR 103.3 to 
the Associate Commissioner for Examinations. Termination of 
credentialing status shall remain in effect until and unless the 
terminated organization reapplies for credentialing status and is 
approved, or its appeal of the termination decision is sustained by the 
Administrative Appeals Office. There is no waiting period for an 
organization to re-apply for credentialing status.
    (n) Transition. (1) One year waiver. Under the discretion given to 
the Secretary, DHS, under section 212(d)(3) of the Act (and, for cases 
described in paragraph (d)(1) of this section, upon the recommendation 
of the Secretary of State), the Secretary has determined that until 
July 26, 2004 the DHS shall, subject to the conditions in paragraph 
(n)(2) of this section, exercise favorably the discretion given to the 
Secretary under section 212(d)(3) of the Act and may admit, extend the 
period of authorized stay, or change the nonimmigrant status of an 
alien described in paragraph (d)(1) or paragraph (d)(2) of this section 
to the United States temporarily, despite the alien's inadmissibility 
under section 212(a)(5)(C) of the Act and paragraph (a) of this section 
in any case, if the DHS admits the alien, or extends the alien's period 
of authorized stay, or changes the alien's status on or before July 26, 
2004; and the alien is not inadmissible under any other provision of 
section 212(a) of the Act (or has obtained a waiver of that 
inadmissibility). On or after July 26, 2004, such discretion shall be 
applied on a case by case basis.
    (2) Conditions. Until July 26, 2004, the temporary admission, 
extension of stay, or change of status of an alien described in 
paragraph (d)(1) or (d)(2) of this section that is provided for under 
this paragraph (n) is subject to the following conditions:
    (i) The admission, extension of stay, or change of status may not 
be for a period longer than 1 year from the date of the decision, even 
if the relevant provision of 8 CFR 214.2 would ordinarily permit the 
alien's admission for a longer period;
    (ii) The alien must obtain the certification required by paragraph 
(a) of this section within 1 year of the date of decision to admit the 
alien or to extend the alien's stay or change the alien's status; and,
    (iii) Any subsequent petition or application to extend the period 
of the alien's authorized stay or change the alien's nonimmigrant 
status must include proof that the alien has obtained the certification 
required by paragraph (a) of this section, if the extension or stay or 
change of status is sought for the primary purpose of the alien's 
performing labor in a health care occupation listed in paragraph (c) of 
this section.
    (3) Immigrant aliens. An alien described in paragraph (a) of this 
section, who is coming to the United States as an immigrant or is 
applying for adjustment of status pursuant to section 245 of the Act (8 
U.S.C. 1255), to perform labor in a health care occupation described in 
paragraph (c) of this section, must submit the certificate or certified 
statement as provided in this section at the time of visa issuance or 
adjustment of status.
    (4) Expiration of certificate or certified statement. The 
individual's certification or certified statement must be used for any 
admission into the United States, change of status within the United 
States, or adjustment of status within 5 years of the date that it is 
issued.
    (5) Revocation of certificate or certified statement. When a 
credentialing organization notifies the DHS, via the Nebraska Service 
Center, that an individual's certification or certified statement has 
been revoked, the DHS will take appropriate action, including, but not 
limited to, revocation of approval of any related petitions, consistent 
with the Act and DHS regulations at 8 CFR 205.2, 8 CFR 
214.2(h)(11)(iii), and 8 CFR 214.6(d)(5)(iii).

PART 214--NONIMMIGRANT CLASSES

0
5. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-15 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009 B 708; section 141 of the Compacts of Free Association 
with the Federated States of Micronesia and the Republic of the 
Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, 
note, and 1931 note, respectively; 8 CFR part 2.

0
6. Section 214.1 is amended by adding new paragraphs (i) and (j) to 
read as follows:

[[Page 43921]]

Sec.  214.1  Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (i) Employment in a health care occupation. Except as provided in 8 
CFR 212.15(n), any alien described in 8 CFR 212.15(a) who is coming to 
the United States to perform labor in a heath care occupation described 
in 8 CFR 212.15(c) must obtain a certificate from a credentialing 
organization described in 8 CFR 212.15(e). The certificate or certified 
statement must be presented to the Department of Homeland Security 
(DHS) in accordance with 8 CFR 212.15(d). In the alternative, an 
eligible alien seeking admission as a nurse may obtain a certified 
statement as provided in 8 CFR 212.15(h).
    (j) Extension of stay or change of status for health care worker. 
In the case of any alien admitted temporarily as a nonimmigrant under 
section 212(d)(3) of the Act and 8 CFR 212.15(n) for the primary 
purpose of the providing labor in a health care occupation described in 
8 CFR 212.15(c), a petition to extend the period of the alien's 
authorized stay or to change the alien's status shall be denied if:
    (1) The petitioner or applicant fails to submit the certification 
required by 8 CFR 212.15(a) with the petition or application to extend 
the alien's stay or change the alien's status; or
    (2) The petition or application to extend the alien's stay or 
change the alien's status does include the certification required by 8 
CFR 212.15(a), but the alien obtained the certification more than 1 
year after the date of the alien's admission under section 212(d)(3) of 
the Act and 8 CFR 212.15(n). While the DHS may admit, extend the period 
of authorize stay, or change the status of a nonimmigrant health care 
worker for a period of 1 year if the alien does not have certification 
on or before July 26, 2004, the alien will not be eligible for a 
subsequent admission, change of status, or extension of stay as a 
health care worker if the alien has not obtained the requisite 
certification 1 year after the initial date of admission, change of 
status, or extension of stay as a health care worker.

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

0
7. The authority citation for part 245 continues to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1182, 1255; sec. 202, 
Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 
112 Stat. 2681, 8 CFR part 2.


Sec.  245.14  [Removed and Reserved]

0
8. Section 245.14 is removed and reserved.

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

0
9. The authority citation for part 248 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

0
11. Section 248.3 is amended by adding a new paragraph (i) to read as 
follows:


Sec.  248.3  Application.

* * * * *
    (i) Change of nonimmigrant status to perform labor in a health care 
occupation. A request for a change of nonimmigrant status filed by, or 
on behalf of, an alien seeking to perform labor in a health care 
occupation as provided in 8 CFR 212.15(c), must be accompanied by a 
certificate as described in 8 CFR 212.15(f), or if the alien is 
eligible, a certified statement as described in 8 CFR 212.15(h). See 8 
CFR 214.1(j) for a special rule concerning applications for change of 
status for aliens admitted temporarily under section 212(d)(3) of the 
Act and 8 CFR 212.15(n).

PART 299--IMMIGRATION FORMS

0
10. The authority citation for part 299 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

0
13. Section 299.1 is amended in the table by adding ``Form I-905'' to 
the list of prescribed forms in proper alpha/numeric sequence, to read 
as follows:


Sec.  299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
                                Edition
          Form No.                date                 Title
------------------------------------------------------------------------
                                * * * * *
I-905.......................     04-15-02  Application for Authorization
                                            to Issue Certification for
                                            Health Care Workers.
 
                                * * * * *
------------------------------------------------------------------------

0
14. Section 299.5 is amended in the table by:
0
a. Adding the Form ``I-905'' in proper alpha/numeric sequence; and by
0
b. Adding the entry ``Certificates for Health Care Benefits'' at the 
end of the table.
    The additions read as follows:


Sec.  299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                               Currently
                                                               assigned
        INS form No.                  INS form title              OMB
                                                                control
                                                                  No.
------------------------------------------------------------------------
                                * * * * *
I-905.......................  Application for Authorization    1115-0238
                               to Issue Certification for
                               Health Care Workers.
                                * * * * *
                              Certificates for Health Care     1115-0226
                               Benefits.
------------------------------------------------------------------------


    Dated: July 17, 2003.
Tom Ridge,
Secretary, Department of Homeland Security.
[FR Doc. 03-18710 Filed 7-24-03; 8:45 am]
BILLING CODE 4410-10-P