The ABC's Of Immigration - Immigration For Registered Nurses
Understanding Non-immigrant and Immigrant Visas
Before reaching the question of whether a nurse is best suited for immigrant or non-immigrant status, it’s best to begin with an overview of immigration principles. “Immigrant” and “Non-Immigrant” are legal terms which have specific meanings. Every person applying for admission to the United States is considered to be an intending immigrant; and it is up to the person seeking admission to prove that they only intend to stay temporarily as a non-immigrant. This question becomes vitally important when a person applies for a visa because a consular officer has complete discretion to deny a request if he or she is not satisfied that the alien will leave the United States when their visa period expires. In short, if the alien is deemed to have immigrant intent when applying for a non-immigrant visa, the application will be denied.
Non-immigrant visas typically allow foreign nationals for a limited period for a specific purpose. Such purposes include undergraduate or graduate study or employment with a sponsoring company or organization. Non-immigrant visas are designated by letter, each letter corresponding to a different type of visa (B-2, F-1, H-1B, etc.).
Immigrant visas, on the other hand, permit foreign nationals to enter the U.S. to remain indefinitely as permanent residents. Rather than show that they only intend to stay in the U.S. for a limited time, a person applying for an immigrant visa needs only to prove that they meet the requirements of the visa classification and that they are not “inadmissible”. The grounds for inadmissibility include certain criminal convictions, communicable diseases, and terrorist activity.
When a person comes to the United States with an immigrant visa, they enter as legal permanent residents and will be issued an Alien Registration Card as proof of their status. Permanent resident status is popularly known as having a Greencard. Greencards are no longer green, but the popular name has remained the same. Permanent residents are entitled to work, travel freely, and to remain indefinitely. However permanent residence can be abandoned or taken away, and it does not give some of the rights that U.S. citizens enjoy. Therefore, some permanent residents opt to apply for naturalization and become U.S. citizens. One cannot apply for citizenship before being a permanent resident first.
Non-Immigrant Visa Options
Under current U.S. immigration laws, non-immigrant visa options for nurses are limited, mainly because most employers only require a two year degree rather than four-year bachelor’s degree.
During the last nursing shortage, the U.S. Congress carved out a specific non-immigrant visa category, designated H-1A, for registered nurses. This visa type did not become a permanent part of the immigration laws, and was allowed to expire on September 1, 1995, when Congress believed the shortage had subsided. A similar provision, which would provide a new visa category for general registered nurses, is currently under consideration, and will be discussed separately below.
The H-1B "Specialty Occupation" visa is available to individuals who can demonstrate qualification in a "specialty occupation" and who are sponsored by a U.S. employer to work temporarily in the U.S. in a "specialty occupation". The Immigration & Nationality Act defines a specialty occupation as "an occupation that requires--(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." Persons who typically will be eligible for this visa include members of the professions such as engineers, teachers, lawyers, as well as scientists and other highly qualified persons.
Through policy memos and case decisions, the Immigration and Naturalization Service has determined that nursing, as a profession, is not a per se a specialty occupation, since a bachelor's degree is not generally required to become a registered nurse. This determination is based on the findings of the Department of Labor as to the educational preparation required for most nurses published in the Occupational Outlook Handbook (1995) and the Dictionary of Occupational Titles (1991). Some have criticized the INS because many employers have dropped the requirement for a bachelors degree precisely because of the severe shortage of nurses and not because the ideal nurse does not need such a degree. They argue that if the point of the H-1B visa is to help employers find qualified workers where there may be a shortage, then the INS policy totally thwarts the intention of Congress.
The INS does acknowledge, however, that there are areas of nursing where the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. Such areas may include supervisory or management positions, and specialties such as surgical nursing, pediatric nursing, nurse-anesthetist and nurse-practitioners. H-1B petitions can be filed in these areas, but even these cases are scrutinized extremely closely.
The INS will also give consideration to applications from employers that can demonstrate that a bachelor's degree is the employer's minimum requirement for all candidates for a specific position and/or department, especially where the requirement is common in the industry. But, as noted above, the severe shortage of nurses makes this an unlikely option for many employers. Because of these reasons, H-1B visas are typically not a good option for those looking to hire nurses.
TN-1 visas are available under the North American Free Trade Agreement ("NAFTA") to Canadian and Mexican citizens for a limited group of specialty occupations. Although not recognized as a specialty occupation for H-1B purposes, registered nurses were specifically included as a listed profession for which TN visas could be used.
Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. In contrast to the H-1B category, registered nurses require only a state or provincial license to practice in order to establish the necessary credentials. A license to practice in any state or province should technically establish the necessary qualifications. However, where a license to practice as a registered nurse is required in the state of intended employment, an applicant must also have such a license before TN status will be granted. A temporary or interim license should be sufficient to permit entry under the TN category.
Once admitted, a worker is granted an initial stay of one year. Thereafter, a TN professional may seek extensions of stay in one-year increments. There is currently no limit on the number of extensions that may be granted.
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. Up to 500 nurses per year can get the visa, but each state is limited to 25 H-1C nurses a year. Under the law, facilities interested in sponsoring nurses for H-1C visas must submit documentation containing a number of attestations regarding the employment of H-1C nurses.
As with most immigration laws, the statute itself provided very little guidance on how the law would be applied, leaving it to the INS (and in most employment visa cases the Department of Labor as well) to develop regulations. The regulations for the H-1C program were released by the Department of Labor last summer, and became effective in September 2000. While the regulation is currently effective, because it was released as an interim regulation, parts of it could change after the Department of Labor reviews the public comments that it received in response. The INS released its regulations in June 2001.
One of the most surprising elements of the Labor Department’s regulations is a DOL finding that based on the restrictive definition of “facility” Congress put in the statute, only fourteen hospitals in the country could be initially determined to qualify to apply for H-1C visas. These facilities are:
The attestation process is being administered by the Employment and Training Administration at the Department of Labor. Enforcement of the attestations is being overseen by the Employment Standards Administration’s Wages and Hours Division.
The 1999 law is very similar to a 1989 law that created the H-1A visa for nurses. That visa category expired several years ago after unsuccessful efforts to extend its life. The key differences between the two programs are that a much smaller number of H-1C visas have been allocated and that the facility where the nurse will work must be in a health professional shortage area. There are also new requirements which limit a facility’s dependence on H-1C nurses (something that is hard to imagine given that only 500 H-1C nurses permitted into the country each year, with no more than 25 allowed to work in a single state).
The Department of Labor has created a new attestation form called the ETA 9081. On the form, the facility must attest to the following:
Under the INS regulations, there are three primary eligibility requirements for foreign nurses who wish to work in the US on an H-1C visa:
Immigrant Visas for Nurses
Far and above, the immigrant visa is the best option for nurses. Its long-term outcome is better than non-immigrant options because it will allow the alien to live and work in the U.S. indefinitely.
Employment-based immigrant visas typically involve three main steps. First, the employer files a Labor Certification application with the U.S. Department of Labor. The purpose of the application is to test the employer's local labor market for available workers. If no qualified and available workers are located, the position is certified as open for a foreign worker.
Second, the employer files an I-140 Alien Worker Petition with the Immigration & Naturalization Service. The purpose of this petition is to verify that the foreign worker has the minimum requirements to fill the open position, and serves to classify the foreign person as eligible for a particular visa category.
Third, on the basis of the Labor Certification and Alien Worker Petition, the foreign worker makes an application for an immigrant visa at a U.S. Consulate. If the foreign worker is legally present in the U.S., he or she may instead apply for permanent resident status.
Pre-Certification for Nurses
As noted above, most employment immigration cases require the employer to first recruit and test the labor market for qualified citizens or permanent residents. After this test is complete, the Department of Labor will certify that no qualified, American worker is available to fill the position. Only then will the employer be able to sponsor a foreign worker. While these labor certifications are often successful, they can be time intensive and do not reflect the immediate needs of the business world.
In 1996, Congress passed legislation that retained nurses on a very short list of pre-certified occupations for which a labor shortage was recognized. The list is included in Schedule A of the labor certification regulations and these types of green card cases are called “Schedule A labor certifications”. The Department of Labor (DOL) has already determined that there are not enough American workers who are able, willing, qualified, and available to fill all of the openings for professional nurses. Therefore, no test of the labor market is required and the case can be directly filed with the Immigration and Naturalization Service. This does not necessarily mean that all cases are approvable or will be handled quickly. The importance of nursing being pre-certified is that it skips the first and most time consuming part of the employment based immigration process.
It is important to note that this pre-certification is limited in scope. It only applies to “professional nurses”. It is not available to Licensed Practical Nurses, Nurse Assistants, or other nursing aides. Professional Nursing is defined as course of study in professional nursing resulting in a diploma, certificate, baccalaureate degree, or associate degree. More specifically, an acceptable course of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine. Whatever training the nurse has received should result in licensure in the country in which the training occurred. This coursework may have been completed at a U.S. nursing school or an approved foreign nursing program. For an immigrant visa, it is not required that a nurse have a bachelor’s degree in nursing, only that he or she completed a professional program in nursing and have subsequently been licensed.
Filing the I-140
The initial step in a Schedule A case is to file a Form I-140 application package to the appropriate supporting documentation to the appropriate I.N.S. service center. There are four regional I.N.S. service centers. They are located in Vermont, Texas, Nebraska, and California and each service center has jurisdiction over a section of the country. A case is properly filed in the service center having jurisdiction over the place of employment or in the service center covering the region where the employer’s office is located. This is an important distinction because service centers have varying processing times. Currently, the Texas service center is taking 9-10 months to complete an I-140, while Nebraska’s processing time is only 3 months. This may account for varying experiences in the HR industry as to how long it is taking to obtain the approval necessary before the nurse can apply for consular processing or adjustment of status.
Supporting documentation must be submitted with the I-140 as prescribed in 20 C.F.R. 656.22(c)(2). This supporting evidence includes the following:
A CGFNS certificate is evidence that the nurse has complied with a three step review of their nursing skills: 1. a credentials evaluation; 2. passage of an English language proficiency exam; and 3. passage of the CGFNS qualifying exam. Once these requisites have been met, the Commission on Graduates of Foreign Nursing Schools will issue the nurse a CGFNS certificate. The purpose of this certification program is to serve as a predictive evaluation process to accurately judge which nurses will be able to meet the requirements for U.S. licensure once admitted to the country. If the nurse has already passed the NCLEX-RN exam, they are exempted from the requirement of obtaining a CGFNS certificate.
The Visa Screen Certificate
The Immigration & Nationality Act controls the admission and presence of aliens in the United States. I.N.A. Section 212(a)(5)(C) sets out the guidelines by which foreign health care workers may gain admission. This law names the Commission on Graduates of Foreign Nursing Schools as an agency authorized to issue the document, referred to as VisaScreen. The CGFNS is the only agency designated to administrate the VisaScreen certification program. The fee per applicant is currently $325. One should contact the CGFNS directly for application instructions. The VisaScreen certificate is required in addition to the CGFNS certificate.
Issuance of the VisaScreen certificate is an indication that the nurse has met all of the requirements of the Commission. The requirements before the certificate can be issued are as follows:
The Certified Statement
There is one exception to the requirement of obtaining a VisaScreen certificate. This exception exists for nurses who:
This exception is most common with Canadian nurses who have entered the United States in TN status and become licensed in the state in which they are currently employed.
Upon approval of the I-140 and receipt of the VisaScreen certificate, a nurse is eligible to obtain their immigrant visa through consular processing. If they are in the United States in a lawful status they may adjust their status to that of permanent resident. Nurses are still required to adhere to licensing requirements of the state in which they intend to work.
Licensing requirements for registered nurses are maintained on a state-by-state basis, and each state has slightly different requirements for licensing. To demonstrate eligibility and preparedness for the NCLEX exam, most states require a combination of materials with the license application, which may include CGFNS certification, copies of foreign academic credentials with certified translations, an education/credentials evaluation and a demonstration of proficiency in English (i.e. TOEFL exam results).
All states permit an individual to obtain a license through examination, and some state permit licensing by endorsement, or acceptance of a registered nurse license from another state or country as evidence of the person's credentials. Again, requirements vary from state to state.
A highly significant piece of legislation to affect immigration for nurses was introduced in the summer of 2001. 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 noted above, 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. As we noted earlier, 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.
The immigration process may seem somewhat like a maze. However, with proper guidance and some practical experience, it should not discourage a potential employer from pursuing prospective employees. Those who have been successful in obtaining international employees often find them to be very dedicated staff members. Given the current labor crisis in the healthcare industry, the international labor market should not be discounted.
About The Authors
Kristi L. Crawford is an associate in Siskind, Susser, Haas, & Devine’s office in North Carolina's Research Triangle Park area. She graduated from the University of Memphis, Cecil C. Humphrey’s School of Law in 1999 and is a member of the Tennessee Bar. While attending the University of Memphis she served as Editor-in-Chief of the law publication The Tennessee Journal of Practice and Procedure. In 1995, Ms. Crawford graduated cum laude from St. Mary’s College (Michigan) with dual degrees in English Literature and Theology. Located near the biotechnology center of Research Triangle Park, Ms. Crawford focuses her practice on serving the medical and professional immigration specialty. She can be reached via email at firstname.lastname@example.org.
Cynthia D. Ryan is partner in the New York office of Siskind, Susser, Haas & Ryan. Ms. Ryan is licensed to practice law in New York and admitted to practice before the Federal Court of the Southern and Eastern Districts of New York. After she received her Bachelor of Arts degree in History, graduating with honors from Bates College in Maine, Ms. Ryan obtained her law degree from Pace University Law School in New York. Ms. Ryan was Editor-in-Chief of the Pace Journal of International and Comparative Law, and she was the Regional Coordinator for the International Moot Court Competition. Ms. Ryan then went on to receive her Diploma in Advanced International Business Studies at McGeorge School of Law in Salzburg, Austria.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.