Visa Screen Must Now Be Filed With Adjustment of Status Applications!

In a memo dated September 22, 2003 and circulated to all the CIS (formerly the BCIS and prior to that the INS) Service Centers, new guidelines were issued on processing certain healthcare worker applications and petitions. Amongst those affected are nurses and physical therapists. The memo was issued to provide guidance on the implementation of newly issued regulations regarding healthcare workers.

The CIS headquarters has now stated that the visa screen or CGFNS certificate needed by nurses and physical therapists, in order to obtain permanent residency must be submitted at the time of filing the adjustment application. This is a departure from the prior practice of allowing a registered nurse or physical therapist to submit their visa screen at their final adjustment interview. The memo acknowledges the prior practice but goes on to state that, “a health care worker in one of the affected occupations must submit evidence of certification at the time of the adjustment of status is filed.”

What the memo fails to address is whether this applies only to adjustment of status applications that are filed on or after September 23, 2003 (the effective date of the new regulations) or applies retroactively. If retroactive application occurs, all nurses and physical therapists who filed their adjustment applications without visa screen certificates will wind up having their applications denied. The California Service Center alone is only processing adjustment applications it received in December 2001 at the time of the writing of this article. This makes the process almost a two-year wait. Denied applications will require refiling with a visa screen certificate and starting the process all over from the beginning.

It is unfair to members of the public ,who have relied on the ability to submit their visa screens at their adjustment interviews, to have the rules changed on them in mid-process. This is especially unfair considering the length in which the cases wait to be adjudicated. Nurses and physical therapist are providing an important public health service to the United States. A disruption of their cases will disrupt this health service. The CIS has allowed for some provisions of the new regulations to not take full effect until July 26, 2004 in order to avoid disruption. But, the new memorandum is silent as to whether this date will also apply to visa screen submission with adjustment of status applications.

Nurses and physical therapists who are planning to file adjustment applications within the near future should ensure their visa screens, CGFNS certificates or FCCCPT Certificates (for physical therapists only) have been issued. Those with pending adjustment applications who have not submitted their certificates, should make every effort to obtain the certificates as soon as possible. And, in anticipation that their pending adjustment application may be denied, it may be wise to file a new adjustment application when the certificates are obtained. This new memorandum has the potential of turning an already tumultuous process topsy-turvy and set cases back several years. Immigration practitioners have already begun discussing with the CIS to find a fair and just way to implement the new regulations.