[Federal Register Volume 69, Number 140 (Thursday, July 22, 2004)]
[Rules and Regulations]
[Pages 43729-43732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16709]



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 Rules and Regulations
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  Federal Register / Vol. 69, No. 140 / Thursday, July 22, 2004 / Rules 
and Regulations  

[[Page 43729]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 212 and 214

[CIS No. 2320-04]
RIN 1615-AB28


Extension of the Deadline for Certain Health Care Workers 
Required To Obtain Certificates

AGENCY: Bureau of Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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

SUMMARY: This interim rule amends the Department of Homeland Security 
(DHS), Bureau of Citizenship and Immigration Services (BCIS) 
regulations to extend the deadline by which certain health care workers 
from Canada and Mexico must obtain health care worker certifications. 
This rule applies only to affected health care workers who, before 
September 23, 2003, were employed as ``trade NAFTA'' (TN) or ``trade 
Canada'' (TC) nonimmigrant health care workers and held valid licenses 
from a United States jurisdiction. A ``trade NAFTA'' nonimmigrant alien 
is a citizen of Canada or Mexico who is admitted to the United States 
to engage in business activities at a professional level as agreed to 
under the North American Free Trade Agreement. A ``trade Canada'' 
nonimmigrant alien is a Canadian citizen who was admitted to the United 
States temporarily to engage in business activities at a professional 
level as agreed to under the United States-Canada Free Trade Agreement. 
This interim rule does not change the licensing requirements for 
employment purposes. Publication of this rule ensures that the United 
States health care system is not adversely affected by the expiration 
of the transition period for certain health care workers to present the 
required certification.

DATES: Effective date: This interim rule is effective on July 26, 2004.
    Comment date: Written comments must be submitted on or before 
September 20, 2004.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division (HQRFS), Department of Homeland Security, 
Bureau of Citizenship and Immigration Services, 111 Massachusetts 
Avenue, NW., 3rd Floor, Washington, DC 20528. To ensure proper handling 
please reference BCIS No. 2320-04 on your correspondence. You may also 
submit comments electronically to DHS at [email protected]. When 
submitting comments electronically you must include BCIS No. 2320-04 in 
the subject box so that the comments can be electronically routed to 
the appropriate office in BCIS. Comments are available for public 
inspection at the above address by calling (202) 514-3048 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Office of 
Program and Regulations Development, Bureau of Citizenship and 
Immigration Services, Department of Homeland Security, 111 
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20528, telephone 
(202) 353-8177.

SUPPLEMENTARY INFORMATION: 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)), provide that 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, verifying that the alien meets certain 
education, training, licensure and competency requirements. The 
certification requirement became effective for nonimmigrant aliens 
employed in the United States on September 23, 2003, by a final rule 
published in the Federal Register on July 25, 2003 at 68 FR 43901 (the 
Final Rule). The Final Rule provided that, as of September 23, 2003, 
all nonimmigrant aliens affected by the certification requirements of 
section 212(a)(5)(C) of the Act must obtain the required certificate.
    Because the process of obtaining the certificate is not an 
immediate one, the final rule provided for a one-year transition 
period. Under the transition period, affected nonimmigrant aliens would 
receive a waiver so that the failure to obtain a certificate would not 
be a ground of inadmissibility under the Act, upon the condition that 
the certificate be obtained within a year of the granting of the 
waiver. The transition period expires on July 26, 2004.
    DHS, however, has determined that an extension of the transition 
period is required for certain Canadian and Mexican nonimmigrant health 
care workers. Many Canadian and Mexican citizens travel regularly 
across their respective borders as well as to other regions outside the 
United States. After July 26, 2004, the expiration of the one-year 
period, those aliens who have not yet received their certificates will 
be inadmissible and thus unable to cross borders into the United 
States.
    These health care workers will be immediately inadmissible and 
ineligible to work in the United States under their current 
nonimmigrant classification. The inability of these aliens to return to 
the United States upon expiration of the one-year transition period 
would cause disruption to their employers, who would have been relying 
on these employees for at least the last year. Regional health care 
systems would be disrupted by preventing these regular employees from 
returning to work for a period of time.
    After consideration of these factors and in consultation with other 
Federal agencies, DHS decided to extend the transition period for an 
additional year for certain health care workers in order to ensure that 
the United States public and health care system is not adversely 
affected by the lack of available health care workers who would 
otherwise be unable to reenter the United States as TN nonimmigrant 
health care workers. (When the North American Free Trade Agreement 
(NAFTA) came into effect on January 1, 1994, the United States-Canada 
Free Trade Agreement was suspended for such time as the United

[[Page 43730]]

States and Canada are parties of NAFTA. At that time, NAFTA TN 
classification replaced the TC classification. Thus, for purposes of 
this interim rule any reference to TN includes those aliens previously 
classified as TC nonimmigrants.)
    This interim rule extends the transition period provided for at 8 
CFR 212.15(n) for Canadian and Mexican TN nonimmigrant health care 
workers subject to the certification requirement who, before September 
23, 2003 (the effective date of the Final Rule), were employed as TN 
nonimmigrants and held licenses from a U.S. jurisdiction. DHS 
understands that many of these TN nonimmigrants actually live in Canada 
or Mexico, and regularly travel to their jobs in the United States or 
to other regions outside the United States. Because many of the aliens 
to be protected by this interim rule are regular travelers, it is not 
necessary for them actually to have been physically present in the 
United States on September 23, 2003 in order to benefit from this 
extended transition period. This interim rule also amends 8 CFR 
214.1(i) to explain how an alien may establish that he or she is 
eligible for the waiver of the certification requirement, as the burden 
remains on the alien to establish eligibility for a waiver of the 
certification requirement.
    This interim rule also makes a technical correction to the 
introductory text of 8 CFR 214.1(j). For employment-based nonimmigrant 
classifications, Form I-129 is used both to classify the alien for the 
nonimmigrant status and also actually to change the alien to that 
classification (if the alien entered in a different classification) or 
to extend the period of the alien's authorized stay. The introductory 
text of 8 CFR 214.1(j) currently suggests that the Form I-129 would be 
denied entirely if the necessary certification is lacking. But this 
suggestion is not technically correct. That an alien may ultimately be 
inadmissible does not necessarily warrant denial of the employer's 
request to classify the alien for a relevant nonimmigrant 
classification. Inadmissibility requires only that BCIS may not grant 
the actual extension or stay or change of status. Approval of the 
classification itself is still useful to the employer, as it will 
facilitate the alien's admission, should the alien later acquire the 
certification, without the employer's having to file a new petition. 
This interim rule revises 8 CFR 214.1(j) to clarify this distinction.

Who Is Not Covered by the Extension of the Transition Period?

    This extension does not apply to any alien whose initial admission 
as a TN nonimmigrant health care worker occurred on or after September 
23, 2003, the effective date of the final rule. Any alien admitted 
after the effective date of the final rule was admitted on notice of 
the certification requirement. Given such notice, it is appropriate to 
impose the certification requirement on these health care workers 
without offering them an additional extension to comply with the 
regulation.

Will Other Aliens Subject to the Certification Requirement Receive 
Waivers?

    For all aliens not described in this interim rule, the transition 
period will still expire on July 26, 2004, or one year from the date 
the alien received the waiver, whichever is later, as provided for by 8 
CFR 212.15(n). Thus, any alien not described in this interim rule who 
seeks admission after July 26, 2004 to work in a covered health care 
field will be inadmissible if the alien has not obtained the required 
certificate. As provided in section 212(d)(3) of the Act and 8 CFR 
212.15(n), the Secretary may continue to waive this ground of 
admissibility on a case-by-case basis.

Good Cause Exception

    Implementation of this rule as an interim rule with a request for 
public comment after the effective date is based upon the ``good 
cause'' exception found at 5 U.S.C. 553(b)(3)(B) and (d)(3). This 
interim rule accommodates the needs of the health care industry and the 
Canadian and Mexican TN nonimmigrants affected by the rule by providing 
these aliens an additional year to come into compliance with the 
requirements of sections 212(a)(5)(C) and (r) of the Act. Failure to 
provide this accommodation would likely cause significant disruption in 
the provision of health care in border regions. Therefore, delay of the 
publication of this interim rule to allow for prior notice and comment 
would be impracticable and contrary to the public interest under 5 
U.S.C. 553(b)(3)(B).
    Further, because this interim rule grants an exemption, on a 
temporary basis, from the certificate requirement, DHS finds that the 
30-day effective date requirement under the Administrative Procedure 
Act is waived under 5 U.S.C. 553(d)(1) and this interim rule will be 
effective on July 26, 2004. DHS nevertheless invites written comments 
on this interim rule, and will consider any timely comments in 
preparing a final rule.

Regulatory Flexibility Act

    DHS has reviewed this regulation, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies 
that this interim rule will not have a significant economic impact on a 
substantial number of small entities. The basis for this certification 
is the same as that provided in the Final Rule published in the Federal 
Register on July 25, 2003 at 68 FR 43901. It is still projected that 
there will be, at most, 21 small businesses that apply to the DHS 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. There is no 
change in the number of entities projected to apply for authorization 
or to the fee required for submission of the application since the 
Final Rule published in the Federal Register on July 25, 2003 at 68 FR 
43901.

Unfunded Mandates Reform Act of 1995

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

[[Page 43731]]

review. DHS has assessed both the costs and the benefits of this 
interim 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 costs described in the Final Rule published in the Federal 
Register on July 25, 2003 at 68 FR 43901 are still applicable. In the 
Final Rule, DHS determined that any entity seeking authorization to 
issue health care worker certifications must apply for authorization on 
Form I-905. 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 
application requirement and processing fees are still applicable and 
remain unchanged by the extension of the transition period. DHS 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. The number of projected applicants and the 
time burden also remains unchanged by the extension of the transition 
period. Once the Form I-905 is approved by BCIS, 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. This process 
and procedure remains unchanged by the extension of the transition 
period for TN nonimmigrant health care workers for one year.
    Each credentialing organization may still 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. DHS has estimated that the total time 
burden associated with each certification is still approximately 220 
minutes and remains unchanged by the extension of the transition 
period. 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, DHS has determined that the benefit to the United States 
public will be that health care facilities remain adequately staffed to 
support their medical needs. Upon expiration of the transition period, 
many Canadian and Mexican health care workers, who regularly travel to 
their respective countries and to other regions outside the United 
States, will not be able to get back into the United States to resume 
work without the required certification. Many health care facilities 
along the border regions rely on the commuter health care workers. The 
transition period will allow the health care workers additional time to 
obtain the certification, thus allowing them to return to work. Without 
the extended transition period, the health care facilities in these 
areas will be immediately faced with a staff shortage, causing an 
adverse affect on their ability to render critical health care 
services. A shortage of health care workers will cause a significant 
strain on the quality of care offered to the United States public. 
Additionally, the consequences of understaffing could be dire. It is in 
the public interest to extend the transition period to ensure that 
health care facilities remain fully staffed and are able to provide the 
same level and quality of service to the public.

Executive Order 13132

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

Paperwork Reduction Act of 1995

    This interim rule does not impose any new reporting or record 
keeping requirements. The information collection requirement contained 
in this interim rule was previously approved for use by the Office of 
Management and Budget (OMB). The OMB control number for this 
information collection is 1615-0062 and is contained in 8 CFR 299.5, 
Display of Control Numbers.

List of Subjects

8 CFR Part 212

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

8 CFR Part 214

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

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

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

0
1. 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.


0
2. Section 212.15 is amended by revising paragraphs (n)(1) and the 
introductory text of paragraph (n)(2) introductory text to read as 
follows:


Sec.  212.15  Certificates for foreign health care workers.

* * * * *
    (n) Transition.
    (1) One year waiver. (i) Pursuant to 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 (or until July 26, 2005, in the case of a 
citizen of Canada or Mexico who, before September 23, 2003, was 
employed as a TN or TC nonimmigrant health care worker and held a valid 
license from a U.S. jurisdiction), DHS, subject to the conditions in 
paragraph (n)(2) of this section, may in its discretion 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, despite the alien's inadmissibility under section 212(a)(5)(C) 
of the Act, provided the alien is not otherwise inadmissible.
    (ii) After July 26, 2004 (or, after July 26, 2005, in the case of a 
citizen of Canada or Mexico, who, before September 23, 2003, was 
employed as a TN or TC nonimmigrant health care worker and held a valid 
license from a U.S. jurisdiction), such discretion shall be applied on 
a case-by-case basis.
    (2) Conditions. Until July 26, 2004 (or until July 26, 2005, in the 
case of a citizen of Canada or Mexico, who, before September 23, 2003, 
was employed as a TN or TC nonimmigrant health care worker and held a 
valid license from a U.S. jurisdiction), the temporary admission, 
extension of stay, or change of status of an alien described in 8 CFR 
part 212(d)(1) or (d)(2) of this

[[Page 43732]]

section that is provided for under this paragraph (n) is subject to the 
following conditions:
* * * * *

PART 214--NONIMMIGRANT CLASSES

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

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to Executive order 13323, published January 2, 2004), 1186a, 1187, 
1221, 1281, 1282, 1301-05; 1372; 1379; 1731-32; sec. 643, Pub. L. 
104-208, 110 Stat. 3009-708; 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.


0
4. Section 214.1 is amended by:
0
a. Revising paragraph (i); and by
0
b. Revising the introductory text of paragraph (j); and by
0
c. Revising paragraph (j)(2), to read as follows:


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

* * * * *
    (i) Employment in a health care occupation. (1) 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 health 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 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).
    (2) A TN nonimmigrant may establish that he or she is eligible for 
a waiver described at 8 CFR 212.15(n) by providing evidence that his or 
her initial admission as a TN (or TC) nonimmigrant health care worker 
occurred before September 23, 2003, and he or she was licensed and 
employed in the United States as a health care worker before September 
23, 2003. Evidence may include, but is not limited to, copies of TN or 
TC approval notices, copies of Form I-94 Arrival/Departure Records, 
employment verification letters and/or pay-stubs or other employment 
records, and state health care worker licenses.
    (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), the petitioning employer may file a Form I-129 to 
extend the approval period for the alien's classification for the 
nonimmigrant status. If the alien is in the United States and is 
eligible for an extension of stay or change of status, the Form I-129 
also serves as an application to extend the period of the alien's 
authorized stay or to change the alien's status. Although the Form I-
129 petition may be approved, as it relates to the employer's request 
to classify the alien, the application for an extension of stay or 
change of status shall be denied if:
* * * * *
    (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 DHS may admit, extend the period of 
authorized 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 (or on or before July 26, 2005, in the case 
of a citizen of Canada or Mexico, who, before September 23, 2003, was 
employed as a TN or TC nonimmigrant health care worker and held a valid 
license from a U.S. jurisdiction), 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.

    Dated: July 19, 2004.
Tom Ridge,
Secretary, Department of Homeland Security.
[FR Doc. 04-16709 Filed 7-21-04; 8:45 am]
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