THE ABC'S OF IMMIGRATION - INADMISSIBILITY - COMING TO WORK WITHOUT A LABOR CERTIFICATION

Many immigrants who are coming to the US to work are inadmissible unless the Department of Labor has issued a certification stating that their employment will not adversely effect the wages and working conditions of US workers and that there are no willing, able and qualified workers available to perform the job.  Those immigrating in the first employment based preference (extraordinary ability aliens, outstanding professors and researchers and certain executives and managers) are not subject to the labor certification requirement, nor are those in the second preference who establish that it is in the national interest to waive the labor certification requirement.  Those who are seeking to immigrate as family members, refugees and asylees are exempt from the labor certification requirement, even though they will most likely work after entering the US. 

TWhile most labor certifications are employer specific, that is, valid only if the employer who filed the petition will be employing the immigrant.  There is an exception, however, for professional athletes.  Since 1996, a labor certification filed by one team can still be used if the alien has changed to a new team in the same sport.  To qualify as a professional athlete, the alien must be employed by a team in a league with at least five other teams whose combined revenue exceeds million a year. 

Those who are deemed “unqualified physicians” are inadmissible.  Whether a doctor is an unqualified physician has nothing to do with their training or professional competence, but instead concerns whether they have passed certain examinations.  This rule applies only to graduates of foreign medical schools, not to noncitizens who have attended medical school in the US.  To be eligible for admission, the foreign medical graduate must take and pass the United States Medical Licensing Examination (USMLE) and either the Educational Commission of Foreign Medical Graduates (ECFMG) English Test or the Test of English as a Foreign Language (TOEFL).  After passing these exams, the doctor will be given a certificate from the ECFMG, a necessary piece of evidence in proving that he or she is qualified to work in the US.  It is also required for doctors to be admitted for medical training programs and to be approved for a labor certification or a national interest waiver.  These requirements do not apply to doctors seeking to immigrate as a family member, or to physicians not engaged in treating patients (such as researchers).

Other health care workers also face restrictions on their admission.  Registered nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists and technicians and physician assistants all require special certification.  Many of the regulations needed to implement this law have not yet been promulgated.  Currently, regulations are in place for only registered nurses, occupational therapists and physical therapists.  Unlike the USMLE, this process does not involve an examination, but instead an evaluation of the applicant’s credentials.  For nurses, this is done by the Commission on Graduates of Foreign Nursing Schools, for occupational therapists by the National Board for Certification in Occupational Therapy, and for physical therapists by the Foreign Credentialing Commission on Physical Therapy.  CGFNS may also issue certifications for occupational and physical therapists.  In addition to the certification requirement, health care workers must pass an English language test.  This requirement does not apply to graduates of schools in the US, Australia, Canada (except Quebec), Ireland, New Zealand and the United Kingdom.  The requirement applies even if the person graduated from a school where English was the language of instruction.