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Nurse-Patient Staffing Ratios Affecting RN Recruitment

by Carl Shusterman

The Institute of Medicine (IOM) estimates that 98,000 Americans in hospitals die each year because of medical errors. In November 2002, the IOM issued a report which cited studies which demonstrate that infections and cardiac and respiratory failure were associated with an inadequate number of nurses.

The State of California is attempting to increase the number of RNs employed in hospitals by mandating certain nurse-to-patient staffing levels. These are scheduled to become effective on January 1, 2004. These ratios are putting pressure on California hospitals to increase their recruitment of foreign-born RNs.

Under a recently-enacted law, California can fine hospitals $10,000 per day per violation of the ratio law and $5,000 per day for other patient-safety violations. Hospitals will be required to staff one nurse for every six patients in medical-surgical units.

In the midst of a severe national shortage of nurses, where will California hospitals find the nurses they need to meet the new ratios?

Hospitals can increase salaries and sign-on bonuses. This will result in RN migration from lower-paying hospitals to higher-paying ones. Also, California hospitals will hire RNs from other states which do not have nurse-patient ratios. Many California hospitals will also increase their usage of nurses from staffing agencies.

How about the recruitment of foreign-born RNs?

Congress has failed to restore the temporary visa system for RNs which worked so well between 1952 and 1995. Generally, hospitals are forced to sponsor RNs for permanent residence, a process that can take between one and two years.

However, one promising source of foreign-born nurses is being tapped by California hospitals. RNs who are Canadian citizens are able to obtain Trade NAFTA (TN) status to work in the U.S. in as little as one day.

Not only is immigration not a problem for Canadian RNs, neither is licensing. A Canadian RN can qualify for a license in over 40 states, including California, without taking the NCLEX examination. She can utilize the "endorsement" process, the same as an RN who wishes to migrate from one state to another.

However, some storm clouds are looming on the horizon for Canadian RNs. Starting on July 25, 2004, TN nurses will, for the first time, be subjected to the VisaScreen requirement. The VisaScreen is a certificate issued by the International Commission for Healthcare Professionals (ICHP), a subsidiary of the CGFNS. It certifies that a foreign-born is proficient in spoken and written English, and that her education, training, license and experience are comparable with an American RN.

In order to obtain a VisaScreen certificate, the ICHP must verify and evaluate the RN's university transcripts, make sure that her foreign license(s) are unencumbered, etc. Also, if the Canadian nurse was educated in Quebec or in another country, she probably will have to schedule and pass examinations in written and spoken English. All of this takes time. To obtain a VisaScreen certificate, a Canadian RN must pass either the CGFNS or the NCLEX examinations. This is sure to cause a bit of an uproar among Canadian TN nurses who have obtained their state licenses through endorsement. Since they have state licenses, they are bound to ask, why should they be forced, at this late date, to take the licensure examination?

Can a Canadian RN obtain a VisaScreen certificate before July 25, 2004?

Only if she acts quickly. Will processing times for VisaScreen certificates increase if thousands of Canadian TN healthcare workers apply between now and July? We think so. Are TN workers already employed by U.S. health care providers subject to the VisaScreen requirement? Yes. What are the consequences of not having a VisaScreen certificate? The rules require that a VisaScreen certificate be presented to the Immigration Service every time that a nonimmigrant foreign healthcare worker enters the U.S., applies for an extension of stay, a change of status or a change of employers.

So do we have a strategy for TN nurses who are unable to obtain VisaScreen certificates by July 25, 2004?

Yes, we believe that they have a couple of options. First, they can immediately apply for adjustment of status to permanent residence. However, as long as the Immigration Service's memo of September 22, 2003, which requires that a VisaScreen certificate be submitted at the time that the adjustment application is filed, remains in force, this strategy involves an element of risk. Second, we recommend that any TN nurse who does not have a VisaScreen certificate by the beginning of July 2004, depart the U.S. and re-enter with a new letter from her employer requesting that she be admitted to the U.S. for a period of one year. This strategy insures that the nurse is able to maintain valid TN status until July 2005. As long as she does not depart the U.S. after July 2004 or attempt to change status or employers, she buys herself an additional year to obtain a VisaScreen certificate.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

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