By Barbara Tone, RN
Illustration: Digital Stock
May 31, 1999

This is a frustrating time to be a foreign-born healthcare worker in the United States. In 1996, Congress passed legislation that added myriad new barriers to getting permanent resident status for a variety of healthcare workers, including nurses and occupational and physical therapists.

The Illegal Immigration and Immigrant Responsibility Reform Act of 1996 was the most sweeping immigration legislation in the past few decades. Proponents argued that the law—which is not limited to healthcare workers—was needed to protect jobs for American workers. But before and since its inception, the wisdom of the legislation has been questioned by many. “This law has made me rich and I’m more against it than anyone,” said Carl Shusterman, an immigration attorney in Los Angeles who has published and lectured extensively on this issue.

“I think it is the fears, realistic or not, that push this kind of legislation,” said Anna Gallagher, director of legal action for the American Immigration Law Foundation in Washington, D.C. “I find that it went way above the limits of any problem and has created more and more complicated laws and regulations.”

Regulatory limbo

When the law passed in 1996, healthcare workers who wanted permanent resident status were put in limbo until the Immigration and Naturalization Service could develop regulations outlining the criteria for obtaining a green card. The legislation was so complex that it took the INS until late 1998 to issue even interim regulations that would allow the processing of applications. “We were tied up with a lot of issues with other agencies affected by the legislation,” said John Brown, adjudication officer for the business and trade service branch of the INS.

Mojca Cater, OTR, who lives in Southern California, came from Canada in 1991, later earned her master’s degree at the University of Southern California, then passed the OT certification exam. She started trying for her permanent visa in 1995 and was told the process would take 18 to 20 months. Four years later, her frustration is near its limits. “I would advise anyone who is thinking about doing this to talk to someone who has been through it,” she said, “and be really, really sure it is what they want to do.”

In addition to the $100 Cater has to spend each year to renew her work permit, she has spent about $5,000 in attorney fees, has been fingerprinted more than 20 times, and has paid for two complete physicals because the first expired while she was waiting. She also has to pay a $75 fee to the INS every time she leaves the country to visit her family.

“One of the hardest things is that at no point have I been grandfathered in. Every time the rules change, I go back to square one,” Cater said. Cater and others in green-card limbo are hoping for relief via the interim regulations released last October, though the regulations are far from straightforward and clear-cut.

What the rules say

Stated as simply as possible, the new rules say that foreign-born nurses, physical therapists, and occupational therapists seeking status as permanent residents must get a certificate from the appropriate agency verifying the following:

• Their education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States; are comparable with that required of an American healthcare worker; are authentic; and in the case of a license, unencumbered.
• They have a prescribed level of competence in oral and written English, evidenced by a successful score on a nationally recognized, standardized test.
• If a majority of states licensing the discipline in which they wish to work recognize a test that predicts their success on the profession’s licensing or certification exam, then they must have passed such a test or examination.

From there things get complicated, inconsistent, and riddled with exceptions.

For the moment, the verifying agency for nurses is the Commission on Graduates of Foreign Nursing Schools (CGFNS), and for occupational therapists it is the National Board for Certification in Occupational Therapy (NBCOT). Regulations for physical therapists will be effective in June, at which time they can be verified by the Federation of State Boards of Physical Therapy or the by CGFNS. Beginning in June, also, occupational therapists may choose verification by NBCOT or CGFNS.

The new rules apply only to nurses and occupational and physical therapists. The immigration status of numerous other healthcare workers will remain undecided indefinitely.

Predicting frustration

For applicants like Janet Ogden Calder, MEd, RN, a native of Canada and director of nursing at Tyler County Hospital in Woodville, permanent status may now involve “predictor” or licensing exams. In the past, Canadian nursing licenses were accepted in the United States as long as nurses got a sufficient score on their own board examinations. The interim INS rules, however, require that nurses sit for the predictor exam or rewrite state boards. “I defy any practitioner in any field to rewrite their professional exams 30 years later,” Calder said. “I won’t do it. I’m going to give it another year, but I’m coming to the end of my tether. This law is poorly conceived, poorly executed, and has gone on too long.”

Even successful completion of the verification process does not mean an immediate green card. There is an estimated 11,000-person backlog at the INS, and to date, none of the verifying organizations know of a single verified applicant who has received a green card since the October rules went into effect.

There is no projected date for completion of the final rules.