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Foreign Registered Nurses: Successful Landing In Turbulent Waters

by Zlata A. Dikaya & Howard F. Appelt II

In this article, we will review immigration of foreign workers of Schedule A occupations to the U.S. and discuss in great detail the process of preparing and filing an immigrant visa petition on behalf of a foreign registered nurse. We will avoid requirements for a foreign registered nurse who has been educated in the U.S. limiting our discussion to foreign registered nurses educated abroad. This article also leaves out specific issues regarding consular processing of immigrant visas.

General Overview
In 1990 Section 212(a)(5) of the Immigration and Nationality (INA) act was amended to authorize the Secretary of Labor to designate occupations with nationwide labor shortages (Schedule A occupations) in order to admit aliens in these occupations for permanent employment in the U.S. The federal government attempted this measure to reduce labor deficiency in designated occupations and assist struggling industries. The shortage determination by the Secretary of Labor positively identifies occupations lacking sufficient U.S. workers who are able, willing, qualified, and available to do the job and, therefore, admits that employment of aliens in such occupations will not adversely affect U.S. workers.

Such positive determination is the core of the lengthy and chronically backlogged process of labor certification that U.S. employers face in order to permanently employ a foreign worker. For U.S. employers in need of workers in Schedule A occupations such positive determination means moving past the labor certification process and applying for an immigrant visa for a foreign worker immediately. Immediately is not to be taken literally, because the process of filing an immigrant petition for a foreign worker in Schedule A occupations consists of several important steps:

  1. the U.S. employer must determine that a foreign worker is sufficiently qualified in terms of educational background and experience;
  2. a U.S. employer must prove that a foreign worker has successfully completed requirements of state and federal licensure and certification applicable to designated occupations;
  3. U.S. employers must ensure that a foreign worker to be employed in the health-care industry has fulfilled the requirement of Section 212(a)(5)(C) of Immigration and Nationality Act (the ground of inadmissibility for health-care workers) by way of the Visa Screen certification;
  4. a U.S. employer must prove its financial ability to pay the proffered wage to a foreign worker.
Upon completion of all the above steps, a U.S. employer must prepare and file both an immigrant visa petition (Form I-140) and an application for alien labor certification (Form ETA-750, parts A and B) with supporting documents directly with the immigration authorities (the Service), since a foreign worker's occupation is listed on a Schedule A shortage list and therefore, exempt from the Department of Labor certification process . [1]

Upon approval of an immigrant visa petition, a foreign worker can apply for an immigrant visa at the U.S. Consulate of his/her country of permanent residence and come to the U.S. as a permanent resident. If a foreign worker resides in the U.S. in a valid non-immigrant status at the moment an immigrant visa petition is filed by a U.S. employer, he/she will be able to adjust status to that of a permanent resident without leaving the U.S. after the petition is approved. Regardless of the fact of where a foreign worker resides at the moment of an immigrant petition filing, all the above requirements will equally apply.

At present the list of designated occupations with a shortage of U.S. workers - Schedule A [2] list - includes professional nurses, physical therapists and aliens with exceptional abilities in sciences and arts. We are going to limit our discussion to the process of filing an immigrant visa petition on behalf of a foreign registered nurse.

Education and Experience requirements for Foreign Registered Nurses
The Immigration and Nationality Act includes professional nurses in the group of skilled workers, professionals and other workers.[3] The definition of "a skilled worker" subcategory requires at least 2 years of training or experience in the specific occupation, and therefore, demands a foreign registered nurse to have either 2 years of training or experience in the field of nursing. Since almost every country (like the U.S.) requires registered nurses to successfully fulfill a 2-year training program before entering the nursing profession, a foreign registered nurse must have a nursing diploma, at minimum, in order to qualify for an immigrant visa.

Foreign registered nurses who have a bachelor's degree or higher in the field of nursing will consequently, qualify for an immigrant visa as a professional, not as a skilled worker. The definition of a "professional" subcategory requires a person to hold a baccalaureate degree and be a member of the profession. The requirement of being a member of a nursing profession is achieved by a professional nursing licensure requirement in almost every country worldwide. Generally, a foreign nurse must be licensed and become a member of a nursing profession regardless of whether he/she holds a basic nursing diploma or a higher degree in nursing. In the latter case the foreign registered nurse will automatically fall into a subcategory of a professional under U.S. immigration laws.

The immigration process for a foreign registered nurse with either a basic or an advanced nursing degree is the same, although in reality more-qualified foreign nurses are likely to be offered nursing jobs of supervisory nature or of advanced practice. Foreign registered nurses are not required to have any work experience to qualify for an immigrant visa as long as they have either a basic or an advanced nursing degree, the fact which allows nurses to come and work in the U.S. immediately after their graduation from a nursing school. However, in some countries a foreign registered nurse is often required to complete a certain period of practical training before being granted a professional nursing license.

When filing an immigrant visa petition for a foreign registered nurse, it is important to submit legible copies of his/her nursing diploma and transcripts, any and all foreign nursing licenses, and a resume as additional proof of the required education and qualifications.

Licensure and Certification Requirements for Foreign Registered Nurses
Although experience is not a mandatory requirement for a foreign nurse to qualify for an immigrant visa, being licensed by the licensure authorities in his/her native country is. This requirement does not come from the language of the immigration statute, but derives from a practical consequence of the U.S. nursing licensure requirements.

The federal regulations specify that in order to qualify for Schedule A list a foreign registered nurse must either be certified by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or hold a full and unrestricted license in the state of intended employment,[4] and the proof of either must be submitted with an application for alien labor certification.[5]

The dual nature of these requirements, interestingly, reflects the Department of Labor's lack of thorough knowledge about states' current dichotomy in licensing of foreign registered nurses. Not surprisingly, these requirements, as we discuss later, have been ultimately interpreted by the Department of Labor to accommodate states' licensing practices.

Basically, a foreign registered nurse can apply for a U.S. nursing license only after successfully passing the National Council Licensure Examination for Registered Nurses (NCLEX-RN). However, in order to sit for NCLEX-RN, the foreign registered nurse must have an official permission from the Nursing Board of the state of intended employment to do so. The Nursing Board issues this permission that is often called "authorization to take test" (ATT) only after being satisfied with education and licensure qualifications of a foreign registered nurse. All states fall into two uneven groups depending on the way they achieve such "satisfaction": a large group of "CGFNS-relying" states and a small group of "CGFNS-non-relying" states. [6]

The Nursing Boards of the first group of states heavily rely on the CGFNS authority to verify foreign nurses' credentials by means of the CGFNS certification, the process consisting of educational evaluation, foreign license verification, the qualifying nursing exam (CGFNS exam), and the test of English language proficiency. [7] A foreign registered nurse who wants to work in any state of the first group must first successfully pass the required exams and credentials verifications and obtain a CGFNS certificate. Then upon presentation of a CGFNS certificate to the Nursing Board the foreign registered nurse can apply for a state nursing license and be issued ATT for NCLEX.

Alternatively, the second group of states does not require foreign registered nurses to obtain a CGFNS certificate to sit for NCLEX-RN, because their Nursing Boards are trusted to complete their own foreign registered nurses' verifications. Therefore, the Nursing Boards request foreign registered nurses to complete either a credentials evaluation service (CES report)[8] at CGFNS, a less rigorous and lengthy verification process, or submit credentials directly to the Board. Upon presentation of a CES report or positive determination by the Nursing Board itself, the foreign nurse is issued ATT and allowed to take NCLEX-RN.

Coincidentally, the states of the second group have experienced more dramatic shortages in registered nurses, the fact that has undoubtedly influenced their Nursing Boards' policy towards more lenient standards for NCLEX-RN admission and significant relaxation of "CGFNS grip" over foreign registered nurses' credentials.

The same fact has also highlighted a flaw in the Department of Labor regulations on a foreign registered nurse's eligibility for an immigrant visa - upon plain reading of the statutory language employers in the second group of "CGFNS-non-relying" states are not able to petition for foreign registered nurses! The foreign registered nurses who want to work in these states neither have a CGFNS certificate due to these Nursing Boards' credentials verification policy, nor possess a full and unrestricted license due to state general licensing provision to issue a nursing license only to an applicant with a Social Security Number.[9]

Due to the fact that the Social Security Administration issues a social security number only to the applicant who can prove the documentary evidence of an alien status,[10] it is not possible for a foreign registered nurse to apply and obtain a social security number before obtaining a permanent residence status that is possible only after being issued an immigrant visa. We have a full vicious circle: 1) an immigrant visa can't be approved without a full and unrestricted nursing license, 2) a nursing license can't be obtained without a social security number, 3) a social security number can't be issued without approval of the immigrant visa!

Recognition of NCLEX-RN
In October 2002 the Department of Labor finally addressed differences in state licensing practices and advised the Service to accept successful passing of NCLEX-RN in lieu of either the CGFNS certification or a full and unrestricted nursing license, the fact that materialized in the memorandum by Mr. Thomas E. Cook, Acting Assistant Commissioner, in December 2002.[11] At present the Service can approve petitions on behalf of foreign registered nurses if the nurse has successfully passed NCLEX-RN provided that other requirements applicable to the petition are met. The Commissioner's letter recommends the Service to use a letter from the nursing board of the state of intended employment confirming nurses' eligibility for a nursing license except for a social security number as the evidence that the nurse has successfully passed NCLEX-RN. The nursing boards can issue such letters only after they have received acceptable NCLEX-RN results. In our practice, we have been successful in submitting only NCLEX-RN candidate report issued by NCLEX exam administration as the proof that the nurse has passed NCLEX-RN.

Certain practical tips about NCLEX-RN
At present NCLEX-RN is offered only in the United States. Authorization to take test (ATT) issued by the Nursing Board is usually valid only for a period of one year. If a foreign registered nurse does not take NCLEX-RN within a year's time he/she will have to re-apply to the Nursing Board and seek another ATT. After a foreign registered nurse registers for NCLEX-RN with NCLEX-RN administration offering the test, he/she has to keep in mind the period of 90 days that starts running from the date of the official registration for NCLEX-RN.

The foreign registered nurse must come to the U.S. and actually take NCLEX-RN only within this window of 90 days, so all arrangements for a U.S. visa, hotel accommodation, plane ticket, and vacation time must be made beforehand to meet this deadline. The foreign registered nurse that needs a U.S. visa to enter the country will have to apply for a non-immigrant visitor's visa (B-2) to come to the U.S. and take NCLEX-RN.

According to the Department of State interim rule[12], effective August 1, 2003 consular officers are required to interview every applicant for a non-immigrant visa, unless certain limited exceptions apply. Subsequent backlog in obtaining an interview at the U.S. consulates and following delays in U.S. visa issuance may jeopardize foreign nurses' ability to take NCLEX-RN within the allowed 90 days. Moreover, it is extremely hard to extend this period of 90 days except for medical emergencies, and an applicant will have to re-register and pay the application fee of $200.00 again to obtain another 90 day's opportunity to take NCLEX-RN. Therefore, it is important to apply for a U.S. visa in advance.

When filing an immigrant visa petition for a foreign registered nurse, it is important to submit legible copies of either his/her CGFNS certificate, NCLEX-RN test score, or a letter from the state Nursing Board confirming eligibility for a state nursing license as a proof of compliance with state licensure requirements.

INA Section 212(a)(5)(C) requirement (Visa Screen) for Foreign Registered Nurses
Section 343 of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996 amended Immigration and Nationality Act (INA) and introduced a new ground of inadmissibility for those who enter the U.S. to work as health-care professionals in the following 7 categories: nurses (licensed practical nurses, licensed vocational nurses, registered nurses), occupational therapists, physical therapists, speech language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, medical technicians (clinical laboratory assistants). The federal government created yet another requirement for health-care workers in addition to state licensure and credentials verification requirements.

The ground of inadmissibility in plain words means that the immigration authorities are not allowed to admit a health-care worker to come to the U.S. to perform labor in a health-care industry unless he/she presents evidence of being certified by a specifically designated credentialing organization. For almost seven years, from 1996 to 2003, the immigration authorities did not issue any rule implementing Section 343 requirement and used a series of interim rules to create credentialing requirements for immigrant health-care professionals of the designated 7 groups, including foreign registered nurses.

Ultimately, on July 25, 2003 the Department of Homeland Security implemented Section 343 and codified it into INA section 212(a)(5)(C) and section 212(r) effective September 23, 2003. This rule specifically mandates the foreign registered nurses who come to the U.S. either for temporary work or for permanent employment to obtain a certificate from Commission on Graduates of Foreign Nursing Schools (CGFNS) before entering the U.S. This certificate is usually called a Visa Screen Certificate after the Visa Screen certification process established by CGFNS for the purpose of Section 343 certifying requirement.

In essence, Visa Screen certification is the federal requirement that completely duplicates the state licensure requirements for foreign nurses, similarly requiring verification of a foreign registered nurse's education, experience, foreign licensure, and English language proficiency. Here we have the case of a good marketing strategy where the same certification process is being disguised under a different name of Visa Screen and offered to the same customer, foreign registered nurses, but for the different purpose - admittance to the U.S. Ridiculously, Visa Screen has more rigorous requirements for English language proficiency making it more difficult for foreign registered nurses to enter the U.S. than to obtain a nursing license in the state of intended employment!

Visa Screen certificate, unlike other certification products and services of CGFNS, is valid for the period of 5 years. A foreign registered nurse for whom a U.S. employer has filed an approved immigrant visa petition must present this certificate at the interview in the U.S. Consulate of his/her country of permanent residence in order to be admitted to the U.S. as a permanent resident (if this certificate is available at the time of petition filing, we would advise to include its copy with other supporting documents). Alternatively, if a foreign nurse is a beneficiary of an approved immigrant visa petition and is currently residing in the U.S. he/she must file Visa Screen certificate together with his/her application for adjustment of status.

Proof of a U.S. employer's financial ability
In general, upon filing an immigrant visa petition a U.S. employer must prove to the Service its ability to pay an offered wage to a foreign worker . The evidence of such financial ability must be in the form of either copies of annual reports, federal tax returns, or audited financial statements for the last three consecutive years. A U.S. employer with more than 100 workers may present a statement from its financial or executive officer confirming such financial ability. Specifically, U.S. employers filing an immigrant visa petition for a Schedule A list foreign worker must also submit evidence that the notice of such application filing has been given to the bargaining representative of the employees or, if there is no bargaining unit, to the employees in the form of a copy of either the letter to the bargaining representative or the job offer notice .

Provided that a U.S. employer files an immigrant visa petition for a foreign registered nurse with all the required supporting documents, including proofs of the financial ability, foreign registered nurse's education, foreign licensure, and compliance with licensure requirements of the state of intended employment it is guaranteed that a petition will be approved without delays and issuance of dreaded requests for additional evidence (RFE).

Despite the fact that filing an immigrant visa petition on behalf of a foreign registered nurse is a very straightforward procedure, the preparation of a package of supporting documents to ensure smooth processing and ultimate approval of the case is extremely cumbersome due to numerous federal and state requirements. It takes a very organized and a truly comprehensive approach to succeed in guiding foreign registered nurses through necessary registrations and obtaining necessary documents to support an immigrant visa petition.

Only combination of legal expertise and practical knowledge of federal regulations, immigration law, state licensure requirements, and foreign nurses' qualifications can lead to successful approvals of immigrant visa petitions on behalf of qualified foreign registered nurses.

[1] See 20 CFR 656.22.

[2] See 20 CFR 656.10.

[3] See INA 203(b)(3)(A)(i) and 203(b)(3)(A)(ii).

[4] See 20 CFR 656.10.

[5] See 20 CFR 656.2(c)(2).

[6] Currently 10 states (California, Colorado, Florida, Maryland, Nevada, New Mexico, New York, Ohio, Oregon, South Carolina) do not require foreign registered nurses to obtain CGFNS certificate prior to taking NCLEX-RN.

[7]For the purpose of CGFNS certification the English test must be taken within 2 years of the taking of CGFSN exam. The English test can be either TOEFL, TOEIC or IELTS Academic Module.

[8] Credential Evaluation Certification (CES), unlike CGFNS certification, consists only of educational evaluation and licensure verification of foreign registered nurses and does not include a nursing qualifying exam and a test of English language proficiency.

[9] The requirement to issue a nursing license to an applicant with a Social Security Number is mandated by state Nursing Boards. According to 2002 Member Board Profiles prepared by the National Council of State Boards of Nursing (NCSBN) forty-one (41) Boards nationwide require an applicant's social security or Department of Motor Vehicles control numbers. CGFNS-non-relying states are among these 41 states that require a Social Security Number, except for Maryland that requests, but not requires it.

[10] See 20 CFR 422.107 (a) and 422.107(e) "An applicant for an original social security number card must submit documentary evidence …of alien status - a current document issued by the immigration authorities in accordance with their regulations."

[11] See Letter by Thomas E. Cook of December 20, 2002 "Adjudication of Form I-140 Petitions for Schedule-A Nurses Unable to Obtain Social Security Cards."

[12] See 22 CFR 41.102.

[13] For the purpose of Visa Screen certification the following three English tests are accepted: 1) three parts of TOEFL (TOEFL regular, TWE, and TSE), 2) three parts of TOEIC (TOEIC, TWE, and TSE), or IELTS Academic Module.

[14] See 8 CFR 204.5(g)(2).

[15] 20 CFR 656.20(g)(1).

About The Author

Zlata Dikaya is an attorney with the firm of Johnson, Murphy, Hubner, McKeon, Wubbenhorst & Appelt, P.C. in Riverdale, NJ who practices exclusively in the area of immigration and nationality law. She holds a joint J.D./MBA degree from Moscow Institute of International Relations in Russia and an LLM degree from Northwestern University School of Law. She is admitted in New York. Zlata can be reached at or at 973-835-0100.

Howard F. Appelt, II is a Partner of Johnson, Murphy, Hubner, McKeon, Wubbenhorst & Appelt, P.C. and Managing Director of EuroNurseAmerica, LLC, a foreign nurse recruitment firm sourcing registered nurses from Ireland, the UK, and Scandinavia. EuroNurseAmerica, LLC recruits its candidates through its Irish partner, ENA Europe. Howard can be reached at or at 973-835-0100.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.