FOREIGN NURSES

Summary of Regulations for Section 343 of the 1996
Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA)

On September 30, 1996, the United States Congress passed a law with direct implications for all foreign nationals currently in the United States in nonimmigrant and immigrant status. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) in Section 343, requires foreign nurses, and some other healthcare workers, to meet additional credential requirements as certified by a method approved by the U.S. Department of Homeland Security (DHS) in consultation with other government agencies. This is a summary of the regulations for Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), as published in the Federal Register, July 22, 2004, as they pertain to registered nurses. In an attempt to address your questions and concerns in the most efficient manner, the Office of Enrollment Services has used the question and answer format.

We begin by addressing the general requirements for nurses under the regulation. Then focus is placed on TN-related issues for registered nurses that are Canadian citizens. To conclude, we identify issues affecting those who have already applied for lawful permanent residence (LPR), or who are in the process of doing so. We understand that not ALL concerns can be answered collectively, but please read through all of the information below. If, after reading this information, you are still unclear about the necessary procedures or your responsibilities in complying with the final regulations, email us at klynd@usouthal.edu to schedule an appointment. We will try to accommodate your schedule as much as possible.

Q1.	What is the purpose of this law and what are the special requirements?
A1.	This U.S. law is intended to ensure that workers coming to the U.S. for the purpose of practicing in the area of healthcare meet the following standards in order to protect the quality of patient care. Education, training, license, and experience comparable with that required for an American healthcare worker of the same type; are authentic; and, in the case of a license, unencumbered. 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 healthcare work of the kind in which the alien will be engaged. 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, that the alien has passed such a test, or has passed such an examination (e.g., NCLEX). Under this law, individuals seeking sponsorship as a registered nurse, and certain other healthcare occupations, must meet additional requirements to be granted either immigrant (a.k.a., "green card", Lawful Permanent Resident/LPR, etc.) or non-immigrant (e.g., TN, etc.) status. If South Alabama is sponsoring you for a visa status based on employment as a registered nurse, then these special requirements apply to you.
Q2.	How do I meet these special requirements?
A2.	You must have your credentials verified by an organization recognized under immigration law to do such credentials evaluation and verification for nurses. Currently the only organization so recognized is the International Commission on Healthcare Professions (ICHP), which is part of the Commission on Graduates of Foreign Nursing Schools (CGFNS). When the review and verification of your credentials is completed, they will issue a Healthcare Worker Certificate they call the VisaScreen. The CGFNS website address where you can obtain more information about the VisaScreen, including application materials (you can apply online or download an application) is http://www.cgfns.org.
Q3.	I already have an Alabama license, why do I have to take either the NCLEX or CGFNS exam?
A3.	As unfair as it may seem, the regulation specifically states "if a majority of the states licensing the profession in which the alien intends to work recognize a test predicting the alien’s success on the professions licensing or certification examination," the alien must demonstrate that…" the alien has passed such a test or has passed such an examination." Therefore, just having the full license is not enough to meet the federal requirement. A required component to secure the VisaScreen is direct verification that you have passed either the CGFNS predictor exam or the NCLEX licensing exam. You can obtain more information about these exams from their individual website addresses: The web address for CGFNS is http://www.cgfns.org The web address for NCLEX is http://www.ncsbn.org Since the NCLEX is an actual licensing exam, most affected nurses already in the U.S. may find it preferable to take the NCLEX exam instead of the CGFNS exam.
Q4.	How do I prove English language competence? I am a native English speaker. Do I have to take an exam?
A4.	The U.S. Department of Health and Human Services (HHS) has advised that graduates of health professional programs in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States are exempt from the English language requirements. The rationale being, if you can obtain a degree taught in one of these English-speaking countries, your English ability is considered acceptable.
Q5.	I am bilingual, equally fluent in English and French. I obtained my degree in Quebec. Do I really need to take an English competency exam?
A5.	Unfortunately, the answer is yes. In order to provide proof of English competency you must take one of the appropriate sets of English exams, and achieve a designated minimum score. We know that some nursing schools in Quebec use English as the language of instruction, but the regulation makes no exception for these schools.
Q6.	I received my nursing diploma/degree in the U.S., why do I have to obtain the healthcare worker certification?
A6.	As unfair as it may seem, the regulation specifically states that individuals that received their nursing degree/diploma in the U.S. are not exempt from this legal requirement, but may have an expedited review process.
Q7.	Can South Alabama do this for me? How much will this cost?
A7.	This is a credential that the U.S. government has now mandated foreign nurses to secure and hold if they require visa sponsorship to practice in the U.S. Legally, South Alabama cannot do this for you. The law makes it clearly the responsibility of each affected nurse to ensure she/he has this credential, just as she/he must ensure that she/he has a license. Currently, the cost of the VisaScreen application from CGFNS is approximately U.S. $325. But the overall cost to a nurse will vary according to individual situations (e.g., if the NCLEX exams need to be taken, etc.).
Q8.	I heard that we have another year to obtain the VisaScreen. Is this true?
A8.	Yes and no. A regulation issued by the Department of Homeland Security (DHS) on Thursday, July 22, 2004, has waived the deadline to obtain the VisaScreen Certificate for SOME individuals until July 26, 2005. IF you are a Canadian or Mexican citizen who can prove BOTH [1] before September 23, 2003, you were employed as a TN or TC nonimmigrant healthcare worker AND [2] before September 23, 2003, that you held a valid license from a U.S. jurisdiction, THEN DHS has waived the current deadline for you and provided a new deadline of July 26, 2005, to obtain the healthcare worker certificate (a.k.a., VisaScreen). Only individuals that can prove both are able to have this additional time but must still obtain the VisaScreen no later than July 26, 2005. We strongly urge you not to delay securing the VisaScreen Certificate and provide our office a legible copy as soon as possible.
Q9.	But I have not been in TN status. Don't I have another year to obtain the Visa Screen?
A9.	No. The regulation issued by the Department of Homeland Security (DHS) on Thursday, July 22, 2004, only exempts a citizen of Canada or Mexico who, before September 23, 2003, was employed as a TN or TC nonimmigrant healthcare worker and held a valid license from a U.S. jurisdiction.
Q10.	I qualify for the additional time. How and when do I prove that I do?
A10.	The regulation states that appropriate evidence can include copies of TN or TC I-797 Approval Notices, copies of Form I-94 Arrival/Departure Records, employment verification letters and/or pay-stubs or other employment records, and state licenses. This documentation must be provided when any application to extend TN status is submitted after July 26, 2004. In addition, you must be able to present this documentation in addition to your other required documentation whenever you enter the U.S. in TN status after July 26, 2004. Even if you already have a Form I-94 that indicates TN status beyond July 26, 2004, you will not be allowed to enter the U.S. after July 26, 2004, until/unless you have either a VisaScreen certificate OR documentation that you qualify for the additional time (see Q8 and Q9 above).
Q11.	I currently hold TN status. So how do these regulations affect me?
A11.	The regulations require that any application to extend TN status submitted on or after July 26, 2004, requires you to have either a VisaScreen certificate or documentation that you qualify for additional time (see Q8, Q9, and Q10 above). In addition, any request to enter the U.S. in TN status on or after July 26, 2004, also requires you to have either the VisaScreen certificate or documentation that you qualify for the additional time (see Q8, Q9, and Q10 above). Even if you already have a Form I-94 that indicates TN status beyond July 26, 2004, you will NOT be allowed to enter the U.S. on or after July 26, 2004, until you have either a VisaScreen certificate or documentation proving you qualify for additional time (see Q8, Q9, and Q10 above). NOTE: Anytime you enter the U.S. in TN status (even if you already have a Form I-94) you must be able to present documentation as if you are applying for a new TN.
Q12.	If my TN status is not expiring until after July 26, 2004, will it be cancelled?
A12.	No. However, any application to extend or enter the U.S. on or after July 26, 2004, will require you to have either the VisaScreen or documentation proving you qualify for additional time (see Q8, Q9, and Q10 above). Therefore it is also important that you make no plans to travel abroad and return to the U.S. after July 25, 2004, until you have first obtained the VisaScreen unless you have appropriate documentation proving you qualify for additional time (see Q8, Q9, and Q10 above). NOTE: Anytime you enter the U.S. in TN status (even if you already have a Form I-94) you must be able to present documentation as if you are applying for a new TN.
Q13.	I have heard that, if I do not obtain the proper credentials within a limited period of time, I will not be allowed to remain in the U.S. in TN status. Is this true?
A13.	Yes. If your current TN expires on or after July 26, 2004, then you may remain in the U.S. until the expiration date. However, you must have either the VisaScreen or appropriate documentation proving you qualify for additional time (see Q8, Q9, and Q10 above) before you can apply to extend the TN or enter the U.S. in TN status. NOTE: Anytime you enter the U.S. in TN status (even if you already have a Form I-94) you must be able to present documentation as if you are applying for a new TN.
Q14.	I do not qualify for additional time but I do not have time to get the VisaScreen before July 26, 2004. Is there any way I can have more time?
A14.	No. However, as long as you do not travel outside the U.S. on or after July 26, 2004, you will have until the expiration date of your current TN to secure the VisaScreen certificate. If you do not qualify for additional time, then you should email us at klynd@usouthal.edu to make an appointment to discuss your situation as soon as possible. DHS has made no other exceptions, grace periods, or provisions for emergencies.
Q15.	I have applied for a ‘green card’ (Lawful Permanent Resident status) based upon my job as a registered nurse. How does the regulation affect me? Can I get my green card?
A15.	If you have applied for a ‘green card’ based upon your employment as a registered nurse, then you must obtain and submit a copy of the certificate before you will be approved. If you cannot provide the VisaScreen certificate when required to do so, DHS will deny your application. The VisaScreen certificate must be obtained before you apply for the ‘green card’ based upon an occupation as a registered nurse.
Q16.	I am applying for a ‘green card’ but it is NOT based upon my job as a registered nurse. Does this regulation affect me?
A16.	No. This regulation affects individuals that are applying for visa status based upon employment in an affected healthcare worker occupation, such as nursing. If you are applying based upon another reason (e.g., marriage to a U.S. citizen), then this regulation does not apply to you and you do not have to obtain a VisaScreen.
Q17.	I applied for and was approved for a ‘green card’ (Lawful Permanent Resident status) based upon my job as a registered nurse. How does the regulation affect me?
A17.	If you were approved for your "green card" before September 30, 1996, then you are not affected. The VisaScreen is a credential that the nurse would be required to provide after September 30, 1996, in his/her portion of the "green card" process. If you were not approved by September 30, 1996, and your application was based upon your occupation as a registered nurse, then DHS (formerly INS) should have contacted you directly if the VisaScreen were required. However, if you have concerns about this situation and the applicability of the VisaScreen to your personal situation, then you may wish to consult with a good immigration attorney.
Q18.	I have not yet applied for the ‘green card’ (Lawful Permanent Resident status), but I am considering doing so in the near future based upon my job as a registered nurse. Should I take the necessary steps to obtain the certificate?
A18.	Yes. If you will apply for the ‘green card’ based upon employment as a registered nurse, then you MUST obtain the VisaScreen in order to be legally approved. We are recommending that foreign nurses obtain the VisaScreen immediately and that the VisaScreen certificate be obtained before applying for the ‘green card’ based upon employment as a registered nurse.