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Proper Posting Practice: Nurses And Unknown Worksites

by Cindy J. Unkenholt, Esq.

The severe shortage of nurses in the United States led the Department of Labor to establish 'Registered Nurse' as a Schedule A occupation. Schedule A is a list of occupations for which the Department of Labor has determined that there are not sufficient U.S. workers who are able, willing qualified, and available and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens. This designation entitles employers to use a significantly reduced labor certification application procedure known as 'precertification'. For Schedule A occupations, rather than obtaining an individual determination from the Department of Labor, Form ETA-750 Parts A and B, (in duplicate) are filed with the Citizenship and Immigration Services ("CIS") at the same time as the Immigrant Visa petition (Form I-140). The CIS reviews the application to determine eligibility for precertification and adjudicates the Immigrant Visa petition simultaneously.

Using this Schedule A designation, foreign-born nurses can obtain permanent resident status relatively quickly in the United States. However, "relatively quickly" in the world of immigration can often mean a year or longer. In practical terms, this means that an employer offering a foreign-born nurse a position in the United States will often wait a year or longer before the nurse actually begins employment. For healthcare organizations with a large number of facilities and many open nursing positions, establishing the specific facility where a particular nurse will work a year or more in advance of the actual start date is impractical, if not impossible. Additionally, there are a large number of 'travel nurse' positions for which the employer is a staffing agency and the worksite will depend upon staffing needs of clients when the immigrant visa processing is completed and the nurse is able to enter the United States. One problem that practitioners are encountering with increasing frequency is the issue of where to post notice of the opening in these situations. If there is no bargaining representative, the Department of Labor regulations require the notice of the filing of a labor certification application be documented by "posted notice to the employer's employees at the facility or location of the employment." Of course, if the exact worksite cannot be determined at the time of filing, the employer/petitioner is unable to comply with this regulation.

The Department of Labor has not directly addressed this issue but has provided guidance on a similar topic, where to file a labor certification application in situations where the employee would be working at various unanticipated sites. In Field Memorandum 48-94, the Department of Labor stated in pertinent part that: "[a]pplications involving job opportunities which require the Beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located." Furthermore, in addressing the issue of what should be listed in Item 7 (address where alien will work) of Part A, the Department of Labor stated that "the employer should indicate that that alien will be working at various unanticipated locations throughout the United States. A short statement also should be included explaining why it is not possible to predict where the work sites will be at the time the application is filed."

That memorandum clearly illustrates that the Department of Labor "accepts" that an offer of permanent employment may involve an undetermined worksite at the time of filing. The typical scenario involves IT Consultants who will work on projects in various geographic locations. Of course, IT Consultant is not a Schedule A occupation. However, Department of Labor regulations and policy should still control. With respect to labor certification applications, the regulations at 20 C.F.R. 656.22 state that the Immigration Officer "shall determine whether the employer and alien have met the applicable requirements of 656.20 of this part, of this section, and of Schedule A (656.10 of this part); shall review the application; and shall determine whether or not the alien is qualified for and intends to pursue the Schedule A occupation." Thus, the Immigration Officer is merely reviewing eligibility for precertification and whether or not the application complies with the Department of Labor regulations. Consequently, the memorandum cited above should apply equally to a healthcare organization or staffing agency filing a Schedule A labor certification. Similar to an IT Consulting firm, these employers would be offering permanent employment for a specific position (Registered Nurse) where the employee could be assigned to whichever "project" (hospital) has the most critical need at the time consular processing is completed. There is no doubt that there will be work, only the location is in question. The employer in this situation should be able to demonstrate that it has had multiple openings for an extended period of time or long-term contracts with clients for temporary nurse positions throughout the United States.

In the absence of further guidance, one solution to the issue of where to post the internal notice when the specific worksite has not been determined at the time of filing is to rely upon the Department of Labor's memorandum cited above and post the notice at the employer's main location or headquarters.

About The Author

Cindy J. Unkenholt, Esq. is an immigration attorney whose practice is concentrated on business immigration matters, including healthcare and physician issues. She recently joined Hammond Law Group as an Associate in February 2004. Previously, she was an Associate with Stephen Jeffries & Associates in New York, New York where her practice consisted primarily of advising international physicians. Additionally, she was an attorney with the Immigration Group of Faegre & Benson in Minneapolis, Minnesota and served as Immigration Counsel for Deloitte & Touche LLP. Ms. Unkenholt received her Bachelor's degree from the University of Cincinnati and her Juris Doctorate from the University of Connecticut College of Law. She is a member of the American Immigration Lawyers Association.

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