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The ABCs of Immigration - Immigrant Options for Registered Nurses
by Greg Siskind and Amy Ballentine

There are numerous options for foreign nationals who wish to work in the US as registered nurses, most of which allow only temporary residence in the US, but one of which is a way of obtaining permanent residence.

NONIMMIGRANT VISAS

H-1C Visas

Late in 1999, Congress passed the Nursing Relief for Disadvantaged Areas Act, which calls for the creation of a new H-1C visa for nurses going to work for up to three years in health professional shortage areas. There are only 500 H-1C visas available each year, and no more than 25 H-1C nurses can be sent to one state in a year. Under the law, facilities interested in sponsoring nurses for H-1C visas must submit a document containing a number of attestations regarding the employment of H-1C nurses. As of early 2001, no H-1C visas had been approved.

According to the Labor Department, it is aware of only 14 hospitals that qualify to apply for H-1C nurses because of restrictions in both the statute and regulations. These facilities are:

  1. Beaumont Regional Medical Center, Beaumont, TX
  2. Beverly Hospital, Montebello, CA
  3. Doctors Medical Center, Modesto, CA
  4. Elizabeth General Medical Center, Elizabeth, NJ
  5. Fairview Park Hospital, Dublin, GA
  6. Lutheran Medical Center, St. Louis, MO
  7. McAllen Medical Center, McAllen, TX
  8. Mercy Medical Center, Baltimore, MD
  9. Mercy Regional Medical Center, Laredo, TX
  10. Peninsula Hospital Center, Far Rockaway, NY
  11. Southeastern Regional Medical Center, Lumberton, NC
  12. Southwest General Hospital, San Antonio, TX
  13. St. Bernard Hospital, Chicago, IL
  14. Valley Baptist Medical Center, Harlingen, TX

The H-1C visa is very similar to the H-1A visa for nurses. That visa category expired several years ago after efforts to extend its life were unsuccessful. The key differences are that a much smaller number of H-1C visas have been allocated and that the facility must be in a health professional shortage area. There are also new requirements limit a facilityís dependence on H-1C nurses (something that is hard to imagine given the small number of H-1C nurses permitted into the country each year).

A facility that wants to employ H-1C nurses must make numerous attestations to the Department of Labor. These are the attestations:

  1. That it qualifies as a facility. If the ETA 9081 is the first one being filed by a facility, then the form must be accompanied by copies of the pages from the paperwork filed with the Department of Health and Human Services showing the number of acute care beds and the percentages of Medicaid and Medicare reimbursed acute care inpatient days. A copy of this paperwork must also be kept in a public access file.

  2. That the employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses.

  3. That the facility will pay the H-1C nurse the facility wage rate.

  4. That the facility has taken and is taking timely and significant steps to recruit and retain nurses in order to reduce dependence on immigrant nurses. At least two such steps must be taken unless it can show that the second step is not reasonable. Documentation of these steps needs to be included in the facilityís public access file for H-1C nurse petitions. Steps which may be taken can include
    1. Operating a training program for registered nurses at the facility or financing or providing participation in a training program elsewhere.

    2. Providing career development programs and other methods of facilitating health care workers to become RNs.

    3. Paying registered nurses wages at a rate at least 5% higher than the prevailing wage for the area.

    4. Providing reasonable opportunities for meaningful salary advancement by registered nurses.

    5. Any other steps, which would be considered significant efforts to recruit and retain nurses.
  5. That there is not a strike or lockout at the facility, that the employment of H-1C nurses is not intended or designed to influence an election for a union representative at the facility and that the facility did not lay off and will not lay off an RN within the 90 day period and 90 day period after the date of filing an H-1C petition.

  6. That the employer will notify other workers and give a copy of the attestation to every nurse employed at the facility within 30 days of filing. E-mail attachments are acceptable.

  7. That no more than 33% of the nurses employed by the facility will be H-1C nonimmigrants.

  8. That the facility will not authorize H-1C nonimmigrants to work at a worksite not under its control and will not transfer an H-1C nurse from one worksite to another.

These attestations and supporting documents, along with a $250 filing fee are submitted to the Department of Labor. After approval by the Labor Department, the facility can apply for an H-1C visa with the INS. After this approval, the employer must send a copy of the INS petition and approval notice to the Labor Department.

TN Visas

TN visas were created by the North American Free Trade Agreement, and are available to Canadian and Mexican citizens who are coming to the US to work in activities at a professional level. These are defined to require at least a bachelorís degree or specified credentialing, and experience demonstrating that the beneficiary is a professional. Among the professions covered is that of registered nurse.

To obtain a TN visa, the nurse must collect a letter from the prospective employer containing the job offer, their diploma (if the degree is from Canada or Mexico, it must be evaluated), and all licenses and professional memberships. They will also need to obtain a letter outlining the professional nature of the job, the proposed length of stay, the beneficiaryís educational credentials, evidence that the beneficiary has the required state license, and how the beneficiary will be paid.

Canadian nurses can present this evidence at a port of entry without prior approval by the INS. They will be given leave to enter the US for one year. Applications for extensions may be filed, and there is no limit on the amount of time a person can remain in the US on a TN visa.

Mexican nurses go through a different process. They must submit a labor condition application to the Department of Labor and they must submit an application for a TN visa with the INS. Also, while there is no limit on the number of TN visas that can be issued to Canadians, there is an annual limit of 5,500 for Mexican citizens.

H-1B Visas

Since the expiration of the H-1A category, registered nurses have been allowed to seek H-1B visas. However, the INS takes a narrow view of the ability of a nurse to qualify in the H-1B category and most registered nurses will not be able to obtain an H-1B visa. This is because H-1B visas require a bachelorís degree to be the minimum qualification for entering the field and the INS takes the position that a bachelorís degree is not required to be a registered nurse.

However, in some cases, nurses can obtain H-1B visas. For example, nurses who will be working in a supervisory or highly specialized capacity might be able to obtain one, and if the facility demonstrates that it requires all the nurses it employs to possess a bachelorís degree, obtaining an H-1B visa will be easier.

IMMIGRANT VISAS

SCHEDULe A Labor Certifications

The Department of Labor has determined that there are some job occupations in which there is a chronic shortage of workers, one of which is registered nursing. Nurses who have passed the Commission on Graduates of Foreign Nursing Schools Examination or possess an unrestricted license to practice nursing in the state in which they intend to work are eligible to seek a Schedule A labor certification.

The effect of the Schedule A classification is that the position is ďprecertifiedĒ and no application needs to be filed with the Department of Labor. Instead, the ETA 750 and the I-140 can be filed together directly with the INS.

INA SECTION 343

Section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires that aliens coming to the US to work in covered health care jobs (other than physicians) are inadmissible unless they present a certificate relating to their education, qualifications and English language proficiency. This includes all nurses coming in under non-immigrant or immigrant visas.

Section 343 of IIRAIRA specifically requires a certificate either from the Commission on Graduates of Foreign Nursing Schools ("CGFNS") or "a certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services. The certification must verify that 1) the alien's education, training, license, and experience meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application; are comparable with that required for an American health-care worker of the same type; and are authentic and, in the case of a license, unencumbered; 2) the alien has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant's ability to speak and write; and 3) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an examination.

The INS has found that the CGFNS for nurses meets the statutory requirements for credentialing. CGFNS has responded by establishing its VisaScreen program, administered by its International Commission on Healthcare Professions division. Information on the program, including its rather steep fee, can be obtained by going to the CGFNS web site at www.cgfns.org. ICHP may be contacted: (1) by mail at 3600 Market Street, Suite 400, Philadelphia, PA 19104-2665 U.S.A.; (2) by fax at (215) 349-0026; or (3) by e-mail at ADMINI@ICHP.org

For nurses, the Department of Health and Human Services has approved two testing services to test oral and written competency in English appropriate for the kind of health care work in which the alien will be engaged. The two approved services are the Educational Testing Service (ETS) and the Michigan English Language Assessment Battery (MELAB). Occupational therapists may only take the ETS exam. That is the only examination currently recognized by NBCOT. Note, however, that graduates of health professional programs in Australia, Canada (except Quebec) , Ireland, New Zealand, the United Kingdom and the United States do not have to take the English exam. One is left to wonder why schools in other English-speaking countries are excluded and why graduates of programs taught entirely in English are not covered by this exception.

A MELAB Information Bulletin and Registration Form may be obtained: (1) By mail at MELAB, The English Language Institute, Testing and Certification, 3020 North University Building, Ann Arbor, MI, 48109-1057 U.S.A.; (2) By phone at (313) 764-2416 or (313) 763-3452; or (3) By fax at (313) 764-2416.

Based on HHS standards, a Registered Nurse must obtain at least the following scores on the TOEFL 540 (paper based) or 207 (computer based): Test of Written English 4.0; Test of Spoken English 50; or MELAB final score 79 oral score 3+.

There are no exceptions to the credentialing requirement, even for nurses educated in the US.


About The Authors

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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