Important Policy Change for Healthcare Professionals in the U.S. Seeking Green Cards
November 28, 2003

In the past week, the U.S. Citizenship and Immigration Service’s headquarters in Washington, declared an important reversal of policy, lifting a significant burden off the backs of foreign healthcare workers seeking to become U.S. lawful permanent residents.

The policy change: foreign healthcare workers residing in the U.S. seeking to apply for permanent residence no longer must obtain a Visa Screen Certificate prior to commencing the I-485 permanent residence process. Instead such certification can be submitted at any time following submission of the I-485 applications, but of course, before the completion of the process and before any approval can be issued. The new policy represents a return to the status quo which was altered earlier this fall, when CIS Headquarters issued a directive stating that the Visa Screen would be required of all healthcare worker applicants prior to the commencement of the I-485 process.

For registered nurses in the U.S., that means a return to the old days, where merely evidence of passage of CGFNS, a U.S. diploma or U.S. state license would be required to get the permanent residence process going, including the opportunity to obtain an Employment Authorization Document within 90 days following the commencement of the process. Now, as was the case prior to the fall of 2003, only by the end of the I-485 process will the applicant be required to submit their Visa Screen Certificate.

Similarly, as was the case before the fall of 2003, physical therapists, medical technologists, occupational therapists, and other affected healthcare workers in the U.S. are also relieved of the requirement of first obtaining the Visa Screen Certificate before commencing the I-485 process and being eligible for the useful, generalized Employment Authorization Document.

Other requirements for applicants already in the U.S.: Of course we need a “sponsoring” employer interested in signing the required documentation and providing a job.

Additionally, the prospective applicant must be maintaining their nonimmigrant status, or at least not be more than 6 months out of status. ALTERNATIVELY, however, applicants who have been out of status for more than 6 months may be eligible to proceed if they have been “grandfathered in” under “Section 245(i)”. In most cases, that means the applicant had some type of immigrant or labor certification filing submitted on their behalf by a U.S. family member or a prospective employer prior to April 30, 2001.

As was the case before, healthcare workers, other than RN’s, residing outside the U.S. still have the opportunity to obtain entry into the U.S. via a nonimmigrant H-1B temporary work visa and without first obtaining the Visa Screen Certificate. And of course, permanent residence processing, and pursuit of the Visa Screen Certificate can be commenced after their arrival in the U.S.

On the other hand, generally speaking – for R.N.’s residing abroad who seek to live and work in the U.S., the only option continues to be an immigrant work visa. (there are some rare, exceptional circumstances where an H-1B temporary work visa may be available for RN’s, but they are not discussed here). To facilitate issuance of an immigrant visa, a “sponsoring” healthcare facility in the U.S. must first file paperwork (I-140 immigrant worker petition and supporting documents) on behalf of the R.N. with the U.S. Citizenship and Immigration Service (formerly INS). To start the process and obtain CIS’ approval (which can be obtained in approximately 4-5 months), the R.N. only need be in possession of his/her CGFNS certificate and diploma. However, before the U.S. Embassy abroad will release the immigrant visa, the R.N. must be prepared to present his/her Visa Screen Certificate (after achieving minimum scores on their TOEFL, Test of Spoken English, and Test of Written English). Usually, an immigrant visa interview at a U.S. Embassy or Consulate abroad can be facilitated within 3 months following CIS’ approval of the I-140 immigrant worker petition, depending on scheduling demands on the consular post in question.

At the risk of seeming self serving, given the complex and static legal landscape affecting immigration options for healthcare professionals, it is most advisable that prospective applicants or employers consult with an informed and experienced immigration attorney to assess the parties’ goals and formulate a realistic legal strategy to achieve them.

REVISED April 01, 2004
Copyright © 2003-2008, By Law Offices of Richard Hanus, Chicago, Illinois