RE: Certificates for Certain Health Care Workers; INS No. 2080-00 (67 Federal Register 63313) October 11, 2002

Liberty Place, Suite 700
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Tuesday, December 10th 2002

Regulations and Forms Services Division
425 I Street, NW - Room 4034
Washington, DC 20536
Attn: Mari Johnson 202-353-8177

Dear Director,

On behalf of our nearly 5,000 member hospitals, health systems, networks and other providers of care, the American Hospital Association (AHA) welcomes the opportunity to comment on the Immigration and Naturalization Services’ (INS) proposed rule to implement a comprehensive process for the certification of nonimmigrant alien and immigrant health care workers.  The rule is aimed at achieving full compliance with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.

Our nation is experiencing a shortage of many types of health care personnel, including registered nurses, licensed practical nurses, medical technologists, physician assistants, medical technicians, and others.  This shortage is dramatically affecting hospitals’ ability to provide care, and hospitals have had to divert patients from their emergency rooms, discontinue programs and reduce service hours.

A September 2001 study commissioned by the AHA’s Commission on Workforce for Hospitals and Health Systems reported the following bleak facts:

  • The average vacancy rate for registered nurses is 13 percent.
  • More than one in seven hospitals report a severe shortage of nurses, with more than 20% of registered nurse positions vacant.
  • Sixty percent of hospitals have experienced increased vacancy rates for registered nurses since 1999.
  • The average vacancy rate for licensed practical nurses is 12.9 percent.
  • The average vacancy rate for laboratory technicians is 9.5 percent.

Without adequate numbers of qualified health care workers, hospitals cannot fulfill their basic mission: to get patients the care they need, when they need it.  Foreign health care workers help hospitals provide vital health care services and are an important part of our nation’s health care workforce.

The INS and the State Department previously waived the foreign health care worker certification (“certificate”) requirement for nonimmigrant alien health care workers.  Under the proposed rule, nonimmigrant alien health care workers currently licensed and practicing in the U.S. would be required to obtain a certificate if they file for an application for an extension of stay, or leave the U.S. and seek to return under the same status.  Foreign health care workers trained and licensed in the U.S. would also have to obtain a certificate.  These health care workers are providing care to patients today.  They are licensed and regulated by their respective states and employed by hospitals, clinics and physician offices.  The AHA urges INS to adopt a streamlined certification process for foreign health care workers who hold an unrestricted state license or have been trained in the U.S. 

Nonimmigrant alien health care workers are allowed in the U.S. for a year at a time and have to file for an extension on an annual basis.  Once INS’ final rule is published, thousands of nonimmigrant alien health care workers will be in need of a certificate in order to continue working.  In addition, these health care workers would not be able to leave the U.S. and reenter under the same status until they received a certificate.

It currently takes up to six months to obtain a certificate.  With the addition of thousands of nonimmigrant alien health care workers in need of certificates, the processing time would almost certainly take longer.  Certificate processing time of even a few months would hinder hospitals’ ability to provide care if the certification requirement were to become effective with short notice.  The AHA strongly urges INS to delay the effective date of its final rule for at least 12 months from the date of publication.

Currently there are only two English tests available for certification purposes – those provided by the Educational Testing Service (ETS) and the Michigan English Language Assessment Battery (MELAB).  The limited availability of tests domestically and abroad, and the limited capacity of the testing centers, present an enormous barrier to alien health care workers who seek to enter the U.S.  There are long waiting lists at most, if not all, of the testing centers, causing long delays for the entry of qualified alien health care workers.  These delays contribute to our nation’s severe health care workforce shortage.

The AHA supports the expansion of English tests to include the Test of English in International Communication (TOEIC) and the International English Language Testing System (IELTS).  As INS pointed out in its Supplementary Information for the proposed rule, the statute gives the Secretary of the Health and Human Services (HHS) sole discretion to determine the standardized tests and appropriate minimum scores in order to establish a level of competence in oral and written English appropriate for the health care field.  The statute further provides that the Secretary’s determination is not subject to further administrative or judicial review.  Unlike the remainder of the proposed regulations, the inclusion of TOEIC and IELTS as approved tests for purposes of obtaining a certificate does not need further action by INS.  The AHA strongly urges that there be no further delay in implementing the expanded list of tests and scores already determined to be sufficient by HHS.

The AHA appreciates the opportunity to submit these comments on INS’ proposed rule.  If you have any questions about these comments, please feel free to contact either me, Carla Luggiero, senior associate director for federal relations, at (202) 626-2333, or, Robyn Cooke, director of state issues forum, at (202) 626-2672.


Rick Pollack
Executive Vice President


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