H-1C Visas for Registered Nurses
by Greg Siskind
One of the few immigration measures passed in the last Congress was the extension of a little known nurse visa category called the H-1C. In November 2006, Congress approved legislation to extend the H-1C program for three more years. The program remains unchanged in substance.
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 a document containing a number of attestations regarding the employment of H-1C nurses.
As with most immigration laws, the statute itself provides very little guidance on how the law will be applied, leaving it to USCIS (and as in most employment visa cases, the Department of Labor) to develop regulations. The regulations for the H-1C program became effective in September 2000.
One of the most surprising elements when the Labor Department released its regulations was a 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.
However, that was incorrect at the time and there are many more facilities that now meet the H-1C regulatory requirements.
H-1C employers must meet various attestation requirements. The attestation process is administered by the Employment and Training Administration at the Department of Labor. Enforcement of the attestations is 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 requirements limiting a facility’s dependence on H-1C nurses (something that is hard to imagine given that only 500 H-1C nurses are permitted into the country each year, with no more than 25 allowed to work in a single state).
The Department of Labor has created an attestation form called the ETA 9081. On the form, the facility must attest to the following:
1. That it is a qualifying facility. If the ETA 9081 is the first one being filed by a facility, then the form must be accompanied by copies of the pages from the paperwork filed with the Department of Health and Human Services showing the number of acute care beds and the percentages of Medicaid and Medicare reimbursed acute care inpatient days. A copy of this paperwork must also be kept in a public access file.
2. That the employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses.
3. That the facility will pay the H-1C nurse the facility wage rate.
4. That the facility has taken and is taking timely and significant steps to recruit and retain nurses in order to reduce dependence on immigrant nurses. At least two such steps must be taken unless it can show that the second step is not reasonable. Documentation of these steps needs to be included in the facility’s public access file for H-1C nurse petitions. Steps, which may be taken, can include:
5. That there is not a strike or lockout at the facility, that the employment of H-1C nurses is not intended or designed to influence an election for a union representative at the facility and that the facility did not lay off and will not lay off an RN within the 90 day period and 90 day period after the date of filing an H-1C petition.
6. That the employer will notify other workers and give a copy of the attestation to every nurse employed at the facility within 30 days of filing. E-mail attachments are acceptable.
7. That no more than 33% of the nurses employed by the facility will be H-1C nonimmigrants.
8. That the facility will not authorize H-1C nonimmigrants to work at a worksite not under its control and will not transfer an H-1C nurse from one worksite to another.
The paperwork must also be accompanied by a filing fee. After the attestation is approved by the Labor Department and used in support of an H-1C petition approved by USCIS, the employer is required to send a copy of the H-1C petition and USCIS approval to the Labor Department. Also, as noted above, the employer must create a public access file that includes the attestation and its supporting documentation. The file must be produced for any interested party within 72 hours upon written or oral request.
Greg 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 firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.