Lawsuit Filed on Behalf of Healthcare Workers Awaiting Immigration Benefits
June 9, 2000

In November of 1996 the U.S. Congress enacted into law Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act which requires all health care workers applying for lawful permanent residence in the U.S. to obtain special certification attesting to the legitimacy of their educational and licensing credentials and their fluency in the English language. The exact nature of the certification was to be determined by the U.S. Immigration & Naturalization Service, working in coordination with other federal agencies.

To date, the INS has completed their responsibility in spelling out the exact steps some of the foreign healthcare workers (R.N.’s P.T.’s and O.T.’s) need to take, but has failed to act with regard to others. The INS’ failure to act up to this point is what prompted a lawsuit brought against the INS on behalf of Speech and Language Pathologists, Medical Technologists, Medical Technicians and Physician’s Assistants. The goal of the lawsuit is to compel the INS to finally issue regulations establishing guidelines as to exactly which hoops (tests and evaluations) these professionals must jump through in order to obtain the mandated certification. Until the INS acts in this regard, these healthcare workers efforts to obtain U.S. permanent residence remain at a standstill.

The fact that a lawsuit has become necessary at this point should come as no surprise to foreign registered nurses and occupational therapists since it took a lawsuit filed on their behalf in 1998 to compel the INS to issue guiding regulations governing their certification. Those working in the professions that are at issue in the present lawsuit can hopefully expect INS action in the coming few months.

INS: It is Permissible to Transfer Employers Midway Through the Adjustment of Status Process

In a recent intra-agency memo the INS has confirmed that, with some exceptions, it is permissible for an individual awaiting the processing of their employment-based permanent residence application in the U.S. (adjustment of status) to transfer employers and substitute new immigrant worker petitions while their adjustment application is under process and without the need of starting the adjustment of status process over from scratch.

The scenario has become quite common in the last few years especially for healthcare workers waiting out the several-year processing time for their adjustment of status applications. As the processing time frame expanded due to the INS’ failure to issue regulations on the English and credential certification issue (see above discussion), applicants increasingly grew anxious to switch employers in the middle of the process, particularly when better salaries and working conditions were flashed in their faces. The original thought was that since a new I-140 immigrant worker petition was required by the new employer, so was a brand new I-485 adjustment of status application, since the original

I-140 approval was the foundation for the I-485 filing.

Over the years however, with many of my healthcare worker clients willing to take a chance, I have noticed that the INS has actually been receptive to the idea of substituting I-140 approvals midway through the process and without having to refile a new adjustment of status application. The recent intra-agency memo merely confirms the policy for both employment and family- based where a visa is immediately available in the substituted immigration category at issue.

Copyright © 2000-2008, By Law Offices of Richard Hanus, Chicago, Illinois