The Impact of Visa Retrogression On Healthcare Workers: Hospitals Reluctant to Hire Foreign Nurse Graduates from U.S. Universities
by Sherry Neal
During the 2009-2010 school year, there were 690,923 international students in U.S. universities and colleges, an increase of 2.9% over the previous year. The health professions were among the top fields of study for international students. One of the health professions - nursing - is an attractive field of study because of the nursing shortage, which the Department of Labor predicts will continue until at least 2020.
Despite the need for nurses, employers at hospitals and other healthcare facilities are in a quandary about hiring international graduates from U.S. nursing programs. Employers often hire international nurse graduates from U.S. schools only to later discover that they, unlike most other international students, have virtually no option to work in the U.S. beyond the one year of practical training related to their field of study. Federal laws prohibit employers from requesting proof of employment documents during the interview process and also prohibit certain questions to pre-screen job applicants.
Ironically, the U.S. immigration system is designed to encourage international students to contribute to the U.S. economy after graduation. The natural progression is for an international student ("F-1" visa classification) is to move from temporary status to permanent residence in the U.S. However, the mere filing for permanent residence does not provide legal status or work authorization and obtaining permanent residence can take longer than it took the student to earn a college degree because of the annual per country limit on the number of permanent visas issued for employment. For example, the foreign nurses from India that are able to progress to the final step of permanent residence right now are those who initially filed their applications before April 2002 - more than 9 years ago. Similarly, the wait for foreign nurses from China is backed up to applicants who filed 7 years ago (before May 2004) while the wait for foreign nurses from the Philippines and all other countries is backed up to applicants who filed almost 6 years ago (September 2005).
Therefore, foreign students use temporary employment-immigration classifications to bridge the gap until their permanent residence application is completed. Generally students start their employment based upon Optional Practical Training (OPT), which is temporary employment authorized for international students to work directly in their field of study. The OPT is valid for one year; however, some international graduates can obtain an additional 17 months of work authorization as optional training if: (1) they work for an employer who is registered with the government's E-verify program which verifies legal employment eligibility; and (2) they work in a STEM occupation (Science, Technology, Engineering, Mathematics) related to their field of study. Before the optional practical training expires, the student-employee may change to H-1b nonimmigrant status if the job requires at least a four year bachelor's degree related to the student-employee's degree. The H-1b status has a six year limit but can be extended beyond six years if the employee is in the process of obtaining permanent residence.
The "F-1 to OPT to H-1b" is nearly always sufficient to bridge the gap until the applicant receives permanent residence. But nurse graduates don't generally qualify for that path. The 17 month extension of optional practical training is not available for nurses because nursing is not listed among the STEM occupations. Likewise, nurses don't normally qualify for H-1b status or E-3 status (for Australian citizens) because those categories are for specialty occupations and nursing doesn't require a four year bachelor's degree. The separate visa classifications that use to exist for nurses no longer exist --- the H-1A expired in 1997 and the H-1C (limited to 500 visas per year for certain medically underserved areas) has also expired. The only viable temporary visa option for nurses is the TN category under NAFTA, but even that is narrowly limited to Canadian citizens and Mexican citizens.
The disparate impact that U.S. immigration laws have on nursing students is unjustified. International students in U.S. nursing programs, like other international students, meet tough immigration standards. They must be accepted by a school approved by the government, subject to continual monitoring on compliance with the student visa regulations. They must document sufficient funds to cover tuition and expenses for the academic year. They must have the scholastic preparation to pursue a full course of study. They have to maintain enrollment at a full course of study during the entire academic year. They must have sufficient knowledge in the English language or make arrangements for language tutoring. But unlike most international students, nurses are among seven healthcare occupations that must undergo a federal screening program in addition to becoming licensed in a state to practice the medical profession.
What can be done to give healthcare employers the medical supply of international nurse graduates? An easy first step would be to add nursing to the category of STEM occupations. Immigration and Customs Enforcement recently released an expanded list of STEM degree programs which includes pharmaceutics, drug design, neuroscience, medically informatics and previously omitted programs. However, nursing did not make the list. Adding nursing to the list would provide a small fix but would not resolve the problem as the 17 month OPT extension would still not be enough to bridge the gap in employment authorization, given the current visa backlog on permanent residence cases.
Thus, the real solution requires a comprehensive approach that includes a nonimmigrant classification for nurses and a solution to the visa backlog for permanent residence for nurses. The solution rests in the hands of Congress.
Representative Lamar Smith introduced H.R. 1933, which would extend the H-1C temporary visa program but would lower the quota from 500 to 300 visas per year in health professional shortage areas. Even if passed, the bill in its current form doesn't even restore the H-1C to its previous number of visas and certainly fails to address the nursing shortage throughout the entire U.S. The nonimmigrant category for nurses needs to be robust --- not just limited to Canadian citizens or Mexican citizens like the TN category nor limited to a paltry 500 visas in narrowly defined medically underserved areas like the expired H-1C category.
On the permanent residence side, Congress should carve out a separate quota for nurses, or no quota at all. A separate quota for permanent residence petitions for nurses is sensible. Since 1980 the government has placed professional nurses and physical therapists on a "Schedule A" list of shortage occupations, thereby exempting them from the futile process of proving to the Department of Labor that there are not enough U.S. workers for the occupation. Yet the government lumps the shortage occupations (nursing and physical therapy) in the same quota system as all other occupations. What's the result? It can take a nurse as long as, or much longer depending upon the nurses' country of birth, to obtain permanent residence than an occupation in the U.S. which is not in a labor shortage. In 2005 Congress recognized the absurdity of this result and created a separate quota for nurses and physical therapists but the result was short-lived. The problem with the legislation was that it provided only a one-time grant of 50,000 visas while the backlog of cases already in the pipeline and the additional demand used up the allotment in less than two years. Recently Representative Sensenbrenner introduced H.R. 1929, which would create a pool of 20,000 visa slots for Schedule A nurses. A very similar bill was introduced a few years ago but didn't make it far in Congress. Meanwhile, the number of permanent residence cases caught in the visa backlog continues to rise while the need for nurses in the U.S. continues to exist. Thus, any meaningful legislation should provide for a yearly quota rather than a one-time grant of visas.
Nursing is a shortage occupation and we should encourage students to pursue nursing education in the U.S, whether the students are U.S. born or international students who come to the U.S. for education. International students make an immediate impact to the U.S economy, contributing nearly $20 billion to the U.S. economy through their expenditures on tuition and living expenses and that almost 70% of the students' primary funding comes from sources outside the U.S. They continue to have a positive impact on our economy and cultural life when they remain in the U.S. after graduation. It's important to the educational community, the healthcare industry and the public to provide a path for international students in nursing programs to continue their employment in the U.S. long-term. It is short-sided to educate the international students to enter the nursing profession and not provide for employment beyond one year of optional practical training. Furthermore, it is short-sided for Congress to have passed national healthcare reform and not also pass legislation for an adequate supply of healthcare workers to meet the current and future need.
4 It would also require USCIS to process the I-140 petition within 30 days and impose an additional $1500 filing fee to be used toward grants.
5 Wasem, Ruth Ellen, CRS Report to Congress, U.S. Immigration Policy on Temporary Admissions, (Feb. 28, 2011).
Sherry Neal is a Partner at Hammond Law Group, LLC in Cincinnati, Ohio where she manages the Healthcare Immigration Practice. She has been practicing business immigration law for sixteen years. She is a frequent speaker at conferences and events throughout the U.S. and has widely published in the immigration field. She can be reached at SLN@HAMMONDLAWGROUP.COM.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.