Immigrant Visa Options For Nurses
The immigrant visa is normally the only option for nurses because most of the non-immigrant visa classifications are not available to the typical registered nurse seeking employment in the United States.
What are the basic requirements for a worker to qualify
for a green card?
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 USCIS. 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 via a process called
adjustment of status. A nurse in the US can simultaneously apply for the I-140
and for adjustment of status.
The entire process can take several years. Labor certifications can take anywhere from six months to three years depending on where in the country the application is filed. The I-140 can take anywhere from a month to a year. And another year to two years can be added for consular processing or adjustment of status. As explained below, however, nurses receive processing that is partially expedited.
Do nurses receive any sort of special treatment in green
card processing that makes the green card application process faster or easier?
Yes, nurses seeking green cards do operate under an easier
system and get their green cards faster than their counterparts in other
Nurses do fit into a green card category with a limited
quota. During early 2005, the
category for nationals of the Philippines, India and China was backlogged by
several years and many nurses have been affected.
Congress has just signed a bill that will make 50,000 extra green cards
available to nurses so processing should soon return to normal.
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 immediately 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
USCIS. 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
Note that this pre-certification is limited in scope. It only applies to “professional nurses”. Schedule A is not available to Licensed Practical Nurses, Nurse Assistants, or other nursing aides. Professional Nursing is defined as a 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.
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 USCIS service center. There are four regional USCIS 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. When there is a choice of service centers, employers need to be cautious because the processing times can vary dramatically. 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. For example, beginning in 2003, the Vermont Service Center began expediting cases for nurses. Processing at the VSC is down to less than two months in most nurse cases. However, the other service centers can take as long as a year for the same kind of petition.
What kind of documentation must be submitted with an
I-140 employment-based immigrant petition?
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
1. Completed PERM labor certification forms (the recruiting process under PERM need not, however, be completed);
2. A posted notice of the job opening. This notice must
include a job description, work hours, and rate of pay. The notice must be
posted in the worksite for a minimum of ten business days;
3. Evidence that the petitioning employer has the financial ability to pay the salary offered to the nurse. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer employs 100 or more workers, the USCIS may accept a statement from a financial officer of the organization;
4. CGFNS certificate or nurse license from state where the nurse will be working or proof of passing the NCLEX licensing exam and evidence that the nurse cannot obtain a license because he or she cannot obtain a social security number;
5. Nursing diploma or degree;
6. Nursing registration/licensure from the country where the degree was obtained.
The CGFNS certificate provides 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.
When does the health care workers credentialing
certificate (the “VisaScreen”) come into the picture?
The VisaScreen certificate must be presented to the USCIS prior to adjustment of status and a US consulate prior to issuance of a permanent residency visa. The certificate is NOT required at the start of adjustment application or prior to an I-140 application’s approval.
What steps are required aside from submitting the I-140
and getting the VisaScreen certificate?
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. Adjustment of status applications
can be submitted at the same time as an I-140 application or at any time after
the I-140 is submitted or approved. See the discussion below for more
information on adjustment of status.
Nurses are also 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 be submitted with the license application. The documents may include
CGFNS certification, copies of foreign academic credentials with certified
translations, an education/credentials evaluation and a demonstration of
proficiency in English (e.g. 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
Consult the license chart included as an appendix to this handbook for more information on requirements in each of the states.
How does a nurse in the US adjust status?
If a nurse is in the United States, then processing via
adjustment of status will typically be easier and it will be possible to get
authorization to work much more quickly than through consular processing.
A nurse's employer must file an I-140 for a nurse in the United States just like a nurse residing abroad. But a nurse in the US has the ability to take the NCLEX examination. If the nurse can pass the NCLEX exam, then it is not necessary to take the CGFNS examination. Otherwise, the nurse would still need to present a CGFNS certificate or proof that the nurse has a full and unrestricted license as an RN. A nurse can file an adjustment of status application as well as an application for an employment authorization document at the same time they submit the I-140 application. Once the nurse is licensed by a state and the nurse is in possession of an employment authorization document, the nurse can begin work. License processing times vary between the states. USCIS regional service centers are required to process employment authorization documents in less than 90 days (applicants have the right to request an interim employment document at a local USCIS office if 90 days pass after applying). Adjustment applications typically take 18 to 24 months at USCIS regional service centers. A nurse still needs to present a VisaScreen Certificate prior to completing adjustment of status.
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.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.