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[Federal Register: December 17, 2002 (Volume 67, Number 242)]
[Rules and Regulations]
[Page 77158-77159]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de02-4]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice 4218]
Visas: Uncertified Foreign Health-Care Workers
AGENCY: Department of State.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule changes the requirements pertaining to the issuance
of visas to certain foreign health care workers. It provides that an
alien who seek to enter the United States to perform health-care
services (other than a physician) is excludable unless the alien
presents a certificate establishing the alien's competency in a
specific health care field issued by the Commission on Graduates of
Foreign Nursing Schools (CGFNS) or another credentialing organization
approved by the Attorney General through the Immigration and
Naturalization Service (INS). The promulgation of this rule is
necessary in order to comply with U.S. laws regarding the
inadmissibility of aliens into the United States. The rule will result
in the imposition of a requirement for certain visa applicants seeking
to enter the United States as health care workers to obtain
documentation of their professional credentials and qualifications from
approved private credentialing agencies and provide that documentation
to a consular officer in order to qualify for visa issuance.
DATES: Effective date: This interim rule is effective on December 17,
2002.
Comment date: The Department will consider comments submitted on or
before February 18, 2003.
ADDRESSES: Please submit comments in duplicate to Chief, Legislation
and Regulations Division, Visa Services, Department of State, 20520-
0106, by e-mail to VisaRegs@state.gov, or by fax at 202-663-3898.
FOR FURTHER INFORMATION CONTACT: Penafrancia D. Salas, Legislation and
Regulations Division, Visa Services, Department of State, Washington,
DC 20520-0106, 202-663-2878.
SUPPLEMENTARY INFORMATION:
What Is the Authority for This Rule?
Section 343 of the Illegal Immigration Reform and Immigrant
Responsibility Ac (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, 636-37
(1996), created a new ground of inadmissibility and visa ineligibility
now codified as section 212(a)(5)(C) of the Immigration and Nationality
Act (INA), 8 U.S.C. 1182(a)(5)(C). It provides that, subject to section
212(r) of the INA, an alien who seeks to enter the United States for
the purpose of performing labor as a health care worker, other than as
a physician, is excludable (inadmissible) unless the alien presents to
the consular officer a certificate from the CGFNS or a certificate from
an equivalent independent credentialing organization approved by the
Attorney General in consultation with the Secretary of Health and Human
Services (HHS) verifying that:
(a) The alien's education, training, license, and experience meet
all applicable statutory and regulatory requirements for admission to
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; and
(b) 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 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;
and
(c) If a majority of States licensing the profession in which the
alien intends to work recognize a test predicting the success on the
profession's licensing or certification examination, that the alien has
passed such an examination.
INA section 212(r) mandates separate certification procedures for
certain aliens seeking to enter the United States to perform nursing
services. In general, such procedures apply to those aliens who already
possess a valid State license and who received their nursing training
in a country where the quality of education and the English proficiency
of nursing graduates have been recognized by the CGFNS as meeting its
standards.
[[Page 77159]]
How Is the Department Amending Its Regulations?
The Department is adding a new section to its regulations at 22 CFR
40.53 that instructs a consular officer to obtain the appropriate
statutorily required certification of competency from an alien seeking
to enter the United States to perform services in certain health care
occupations, prior to issuing an immigrant or a nonimmigrant visa to
the alien.
Does the Department Intend To Continue To Exercise Its Discretion Under
Section 212(d)(3)(A) of the INA to Temporarily Waive This
Inadmissibility for Nonimmigrant Aliens Seeking To Enter the United
States as Health Care Workers Where There May Be Conflict With the
North American Free Trade Agreement (NAFTA)?
The Department and INS have exercised their joint discretion under
section 212(d)(3)(A) to waive the certification requirement for
nonimmigrants due to a possible conflicting obligation of the United
States under NAFTA. The Department will continue to use its discretion
to temporarily waive this inadmissibility for nonimmigrant health care
workers until concerned Executive branch agencies resolve the apparent
conflict.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department's implementation of this regulation as an interim
rule is based upon the ``good cause'' exceptions set forth at 5 U.S.C.
553(b)(3)(B) and 553(d)(3). The amendment to the regulation simply
implements a legislative mandate without interpretation and codifies
current practices. Therefore, the Department has determined that it is
appropriate to publish this rule as an interim rule. Nevertheless, the
Department will solicit comments from the public.
The Regulatory Flexibility Act
The Department of State, pursuant with the Regulatory Flexibility
Act (5 U.S.C. 605(b), has assessed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities.
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 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
Although this rule is being promulgated in conjunction with the
Immigration and Naturalization Service, a domestic agency, the
Department of State does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. The Department has reviewed the
regulation to ensure its consistency with the regulatory philosophy and
principles set forth in that Executive Order.
Executive Order 13132
This regulation 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.
Paperwork Reduction Act
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter
35.
List of Subjects in 22 CFR Part 40
Aliens, Nonimmigrants, Immigrants, Documentation, Passports and
visas.
For the reasons set forth in the preamble, the Department is
amending the regulations at 22 CFR part 40 to read as follows:
PART 40--[AMENDED]
1. The authority citation for part 40 shall continue to read:
Authority: 8 U.S.C. 1104.
2. Section 40.53 is added to read as follows:
Sec. 40.53 Uncertified Foreign Health-Care Workers.
(a) Subject to paragraph (b) of this section, a consular officer
must not issue a visa to any alien seeking admission to the United
States for the purpose of performing services in a health care
occupation, other than as a physician, unless, in addition to meeting
all other requirements of law and regulation, the alien provides to the
officer a certification issued by the Commission On Graduates of
Foreign Nursing Schools (CGFNS) or another credentialing service that
has been approved by the Attorney General for such purpose, which
certificate complies with the provisions of sections 212(a)(5)(C) and
212(r) of the Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. 1182(r),
respectively, and the regulations found at 8 CFR 212.15.
(b) Paragraph (a) of this section does not apply to an alien:
1. Seeking to enter the United States in order to perform services
in a non-clinical health care occupation as described in 8 CFR
212.15(b)(1); or
2. Who is the immigrant or nonimmigrant spouse or child of a
foreign health care worker and who is seeking to accompany or follow to
join as a derivative applicant the principal alien to whom this section
applies; or
3. Who is applying for an immigrant or a nonimmigrant visa for any
purpose other than for the purpose of seeking entry into the United
States in order to perform health care services as described in 8 CFR
212.15.
Dated: November 29, 2002.
George C. Lannon,
Acting Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 02-31603 Filed 12-16-02; 8:45 am]
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