Immigration Legislation Proposed to Ease Healthcare Worker Shortage
HR 2705, the Rural and Urban Health Care Act of 2001, makes changes to section 212(m) of the Immigration and Nationality Act regarding H-1C workers. The H-1C program is designed to permit nurses to come to the U.S. as nonimmigrant or temporary workers. The H-1C program, as it exists today, has failed to provide the promised relief from the current nursing shortage in the U.S. Presently, employers must rely primarily on filing Schedule A applications with petitions for immigrant visas. These applications suffer long service center backlogs followed by the inefficient mechanism of consular processing. The result is waiting periods of at least a year from starting the process for immigrant workers to the employees’ arriving in the United States.
HR 2705 proposes substantial changes in a variety of areas including the number of H-1C visas issued per fiscal year, as well as in the employer’s attestation requirements. The result could be the first major relief from a nursing shortage that has continued to tighten its grip on the United States despite the availability of Schedule A processing for immigrant visas for nurses and the, now defunct, H-1A nonimmigrant nursing program of the mid-1990s. Below is a comparison of the existing law for H-1C workers and the new HR 2705.
Perhaps the most significant difference in the two statutes is the number of H-1C visas that are available under the existing law and the proposed law under HR 2705. The existing law limits the number of visas available each year to 500 with additional per state limits that allow only 25 visas per year for states with a population of fewer than 9 million people and 50 visas per year for states with a population of 9 million or more people. These limits have made the H-1C functionally irrelevant as a means of relief from the current nursing shortage. HR 2705, on the other hand, provides substantial relief, permitting a total of 195,000 visas for each fiscal year with no per state limits. These 195,000 visas are provided each year with no reduction, progressive or otherwise, in the number available.
In addition to increasing the overall number of H-1C visas, HR 2705 substantially lengthens the life of the H-1C program. The existing H-1C statute was passed in 1999 and was given a life of 4 years before its sunset in 2004. HR 2705, on the other hand, has no provision that limits the life of the H-1C program.
As added relief from what the health care industry generally accepts as a nationwide nursing shortage, HR 2705 significantly increases the pool of eligible petitioners for H-1C workers. HR 2705 removes the component from the employer attestation that requires the employer facility be a hospital in a Health Professional Shortage Area (HPSA) as determined by the department of Health and Human Services. HPSA areas are generally limited to rural and underserved urban areas. The change would significantly increase the number of eligible petitioners.
In addition to removing the HPSA requirement, HR 2705 provides further relief by broadening the definition of a qualifying facility from simply “hospital” to, “a hospital, nursing home, skilled nursing facility, registry, clinic, assisted-living center, and employer who employs nurses in a home setting.”
The attestation requirement between the existing law and HR 2705 is similar in that both schemes require that hiring the H-1C worker does not adversely affect the wages and working conditions of registered nurses similarly employed. However, HR 2705 specifically restricts the adverse affect requirement to those registered nurses, “at the facility.” This removes the requirement that employers attest that they will not adversely affect the working conditions of employees at other facilities in the same geographic area. Currently most employers sponsoring an alien worker must attest that the employment will not affect any similarly situated worker within commuting distance of the petitioning employer.
HR 2705 also proposes a change in the attestation requirement of the existing law where it removes the requirement that the employer will not employ greater than 33% of the number of registered nurses employed at the facility. The change, along with the proposed increase to 195,000 visas available each year, would provide much needed relief for woefully understaffed facilities.
Other changes in the law include limits on state licensing authority to tighten restrictions for those applying to sit for the examination. HR 2705 limits the number of times that the individual may sit for the exam to two times, but also states that the failure of the alien to obtain a social security number will not disqualify that individual from sitting for the exam.
While HR 2705 makes some significant changes to the H-1C program, there are a number of similarities in the existing H-1C statute and HR 2705. In reviewing the attestation requirements, both the existing law and 2705 require that the employer pay the H-1C worker at the same wage rage as similarly employed workers in the facility. Also, both statutes restrict the employer’s ability to transfer the H-1C worker to another location. Outside the attestation requirement, the statutes are similar in that the both forbid the employer to penalize the employee for departing prior to an agreed date.
HR 2705 is the first legislative response in several years to what amounts to a true labor crisis in the United States. The existing H-1C scheme plays lip service to the crisis but is so narrowly drawn that its effect is virtually negligible. HR 2705 addresses a number of employer concerns that would provide immediate relief for facilities who must currently meet market expectations that they provide the best health care services in the world without the ability to meet even their most fundamental staffing needs.
About The Author
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 defender’s 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 email@example.com