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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

S 1259 IS

107th CONGRESS

1st Session

S. 1259

To amend the Immigration and Nationality Act with respect to the admission of nonimmigrant nurses.

IN THE SENATE OF THE UNITED STATES

July 27, 2001

Mr. BROWNBACK (for himself, Mr. GRAHAM, and Mr. HELMS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To amend the Immigration and Nationality Act with respect to the admission of nonimmigrant nurses.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the `Rural and Urban Health Care Act of 2001'.

SEC. 2. REQUIREMENTS FOR ADMISSION OF NONIMMIGRANT NURSES.

    (a) REQUIREMENTS- Section 212(m) of the Immigration and Nationality Act (8 U.S.C. 1182(m)) is amended to read as follows:

    `(m)(1) The qualifications referred to in the section 101(a)(15)(i)(c), with respect to an alien who is coming to the United States to perform nursing services for a facility, are that the alien--

      `(A) has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained nursing education, or has received nursing education in the United States or Canada;
      `(B) has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (or has passed another appropriate examination recognized in regulations promulgated in consultation with the Secretary of Health and Human Services), or has a full and unrestricted license under State law to practice professional nursing in the State of intended employment; and
      `(C) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to take the State licensure examination after entry into the United States, and the lack of a social security number shall not indicate a lack of eligibility to take the State licensure examination.
    `(2)(A) The attestation referred to in section 101(a)(15)(H)(i)(c), with respect to a facility for which an alien will perform services, is an attestation as to the following:
      `(i) The employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed at the facility.
      `(ii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.
      `(iii) There is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered staff nurse who provides patient care and who is employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition for clarification of such an alien under section 101(a)(15)(H)(i)(c), and the employment of such an alien is not intended or designed to influence an election for a bargaining representative for registered nurses of the facility.
      `(iv) At the time of the filing of the petition for registered nurses under section 101(a)(15)(H)(i)(c), notice of the filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to the registered nurses employed by the employer at the facility through posting in conspicuous locations.
      `(v) The facility will not, with respect to any alien issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(c)--
        `(I) authorize the alien to perform nursing services at any worksite other than a worksite controlled by the facility; or
        `(II) transfer the place of employment of the alien from one worksite to another.
    `(B) A copy of the attestation shall be provided, within 30 days of the date of filing, to registered nurses employed at the facility on the date of filing.

    `(C) The Secretary of Labor shall review an attestation only for completeness and obvious inaccuracies. Unless the Secretary finds that the attestation is incomplete or obviously inaccurate, the Secretary shall certify the attestation within 7 calendar days of the date of the filing of the attestation. If the attestation is not returned to the facility within 7 calendar days, the attestation shall be deemed certified.

    `(D) Subject to subparagraph (F), an attestation under subparagraph (A)--

      `(i) shall expire on the date that is the later of--
        `(I) the end of the three-year period beginning on the date of its filing with the Secretary; or
        `(II) the end of the period of admission under section 101(a)(15)(H)(i)(c) of the last alien with respect to whose admission it was applied (in accordance with clause (ii)); and
      `(ii) shall apply to petitions filed during the three-year period beginning on the date of its filing with the Secretary if the facility states in each such petition that it continues to comply with the conditions in the attestation.
    `(E) A facility may meet the requirements under this paragraph with respect to more than one registered nurse in a single petition.

    `(F)(i) The Secretary shall compile and make available for public examination in a timely manner in Washington, D.C., a list identifying facilities which have filed petitions for classification of nonimmigrants under section 101(a)(15)(H)(i)(c) and, for each such facility, a copy of the facility's attestation under subparagraph (A) and each such petition filed by the facility.

    `(ii) The Secretary shall establish a process, including reasonable time limits, for the receipt, investigation, and disposition of complaints respecting a facility's failure to meet conditions attested to or a facility's misrepresentation of a material fact in an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining representatives, associations deemed appropriate by the Secretary, and other aggrieved parties as determined under regulations of the Secretary, but excluding any governmental agency or entity). The Secretary shall conduct an investigation under this clause if there is probable cause to believe that a facility willfully failed to meet conditions attested to. Subject to the time limits established under this clause, this subparagraph shall apply regardless of whether or not an attestation is expired or unexpired at the time a complaint is filed.

    `(iii) Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists to make a finding described in clause (iv). If the Secretary determines that such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint within 60 days of the date of the determination.

    `(iv) If the Secretary finds, after notice and opportunity for a hearing, that a facility (for which an attestation is made) has willfully failed to meet a condition attested to or that there was a willful misrepresentation of material fact in the attestation, the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per nurse per violation, with the total penalty not to exceed $10,000 per violation) as the Secretary determines to be appropriate. Upon receipt of such notice, the Attorney General shall not approve petitions filed with respect to a facility during a period of at least one year for nurses to be employed by the facility.

    `(v) In addition to the sanctions provided for under clause (iv), if the Secretary finds, after notice and an opportunity for a hearing, that a facility has violated the condition attested to under subparagraph (A)(ii) (relating to payment of registered nurses at the facility wage rate), the Secretary shall order the facility to provide for payment of such amounts of back pay as may be required to comply with such condition.

    `(G)(i) The Secretary shall impose on a facility filing an attestation under subparagraph (A) a filing fee in an amount prescribed by the Secretary based on the costs of carrying out the Secretary's duties under this subsection, but not exceeding $250.

    `(ii) Fees collected under this subparagraph shall be deposited in a fund established for this purpose in the Treasury of the United States.

    `(iii) The collected fees in the fund shall be available to the Secretary, to the extent and in such amounts as may be provided in appropriations Acts, to cover the costs described in clause (i), in addition to any other funds that are available to the Secretary to cover such costs.

    `(3) The period of admission of an alien under section 101(a)(15)(H)(i)(c) shall be for an initial period not to exceed three years, subject to an extension for a period or periods not to exceed a total period of admission of six years.

    `(4) A facility that has filed a petition under section 101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing services for the facility--

      `(A) shall provide the nonimmigrant a wage rate and working conditions commensurate with those of nurses similarly employed by the facility; and
      `(B) shall not interfere with the right of the nonimmigrant to join or organize a union.
    `(5)(A) For purposes of paragraph (2)(A)(iii), the term `lay off', with respect to a worker--
      `(i) means to cause the worker's loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; but
      `(ii) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.
    `(B) Nothing in this paragraph is intended to limit an employee's or an employer's rights under a collective bargaining agreement or other employment contract.

    `(6) For purposes of this subsection and section 101(a)(15)(H)(i)(c), the term `facility' includes a hospital, nursing home, skilled nursing facility, registry, clinic, assisted-living center, and an employer who employs any registered nurse in a home setting.

    `(7) Except as otherwise provided, in this subsection, the term `Secretary' means the Secretary of Labor.'.

    (b) IMPLEMENTATION- Not later than 90 days after the date of the enactment of this Act, the Secretary of Labor (in consultation, to the extent required, with the Secretary of Health and Human Services) and the Attorney General shall promulgate final or interim final regulations to carry out section 212(m) of the Immigration and Nationality Act (as amended by subsection (a)) The amendments made by this section shall take effect not later than 90 days after the date of the enactment of this Act, without regard to whether or not regulations to carry out such amendments have been promulgated by such date.

SEC. 3. REPEAL.

    Section 3 of the Nursing Relief for Disadvantaged Areas Act of 1999 (Public Law 106-95; 8 U.S.C. 1182 note; relating to recommendations for alternative remedy for nursing shortage) is repealed.

SEC. 4. QUALIFICATION FOR CERTAIN ALIEN NURSES.

    (a) ELIMINATION OF CERTAIN GROUNDS OF INADMISSABILITY- Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by striking subsections (a)(5)(C) and (r).

    (b) PROCEDURE FOR GRANTING IMMIGRANT STATUS- Section 204(a)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(F)) is amended by adding at the end the following new sentence: `Any such petition filed on behalf of an alien who will be employed as a professional nurse shall include evidence that the alien--

          `(i) has passed--
            `(I) the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS); or
            `(II) another appropriate examination recognized in regulations promulgated in consultation with the Secretary of Health and Human Services; or
          `(ii) holds a full and unrestricted license to practice professional nursing in the State of intended employment.'.

SEC. 5. WAIVERS OF TWO-YEAR FOREIGN RESIDENCE REQUIREMENT.

    (a) IN GENERAL- Section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184(l)) is amended--
      (1) in paragraph (1)(B), by striking `20' and inserting `40, plus the number of waivers specified in paragraph (4)'; and
      (2) by adding at the end the following new paragraph:
    `(4) The number of waivers specified in this paragraph is the total number of unused waivers allotted to all States for a fiscal year divided by the number of States having no unused waivers remaining in the allotment to those States for that fiscal year.'.

    (b) ELIMINATION OF TERMINATION DATE- Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103-416, as amended; 8 U.S.C.1182 note) is amended by striking `and before June 1, 2002'.

SEC. 6. OTHER MEASURES TO MEET RURAL AND URBAN HEALTH CARE NEEDS.

    (a) GRANT AUTHORITY- The Secretary of Health and Human Services shall award grants to States, local governments, and institutions of higher education (as defined in section 101(a) of the Higher Education Act of 1965) to fund training, recruitment, and other activities to increase the supply of domestic registered nurses and other needed health care providers.

    (b) APPLICATION-

      (1) IN GENERAL- Each eligible entity desiring a grant under this section shall submit an application to the Secretary of Health and Human Services at such time, in such manner, and accompanied by such information as the Secretary may reasonably require.
      (2) CONTENTS- Each application submitted pursuant to paragraph (1) shall--
        (A) describe the activities for which assistance under this section is sought; and
        (B) provide such additional assurances as the Secretary of Health and Human Services determines to be essential to ensure compliance with the requirements of this section.
    (c) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to the Department of Health and Human Services such sums as may be necessary to carry out this section.

END


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