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Dear Editor:
David D. Murray’s letter of 12/12/02, responding to my article that accuses INS, for policy reasons, of killing tens of thousands of American citizens each year, is apparently the current general position in this country on the question of whether any registered nurses should receive H-1B visas. His expert opinion aside, however, he is wrong in several particulars. He is particularly wrong where he claims that it is the law that is killing all of these American citizens, not policy. In point of fact it is INS policy that is directly causing all of these deaths. First and foremost, we are dealing with critical care nurses who are specialty workers in a specialty occupation. They are not ward nurses. The expertise, education, training and experience necessary to fill a critical care position far exceed the minimum education needed to qualify a registered nurse for an RN license. A critical care nurse must receive this additional expertise, education, training and experience before being allowed to take an unsupervised post in a critical care unit. This additional knowledge is earned by the nurse either from additional years of study in school or long years of training on the job.

INS already accepts certain nursing positions as specialty positions. Head nurses, nurse administrators, nurse anesthesiologists and nurse practitioners, among others, are generally accepted by INS as requiring a baccalaureate degree to qualify for the position and receive H-1B visas. This is because it is perceived by INS that it takes much more education and training for these nurses to be able to do their job than is received in a two or three year program. Attorney Murray states, “…if all nurses need bachelor’s degrees to become licensed, all nurses should be able [to] qualify for H-1B visas on the basis that nursing in a “specialty occupation” … but the fact is, bachelor’s degrees are not required for nurse licensure.” While he is correct in what he says, he misses the entire point of the arguments made at the time the petitions were filed by our attorney, an attorney who had, at that time, over 30 years of experience in Immigration Law and over 20 years experience bringing in foreign nurses.

Within the job classification of registered nurse there are positions that require professional abilities from the nurse that are far above those abilities gained in the basic non-baccalaureate nursing program. For example, a surgical patient who has had heart surgery is placed into a critical care unit after surgery. The doctors present in that unit, merely to qualify to be in that unit, must have had many years of specialty training in addition to their basic four year medical degree. There is complicated modern medical apparatus present that requires the RN to have special training and education. The nurses that care for these patients must have knowledge, experience and education far in excess of the knowledge received in a two or three year degree so that they will immediately recognize the possible complications that may arise in the critical care unit and be able to take the proper immediate corrective action necessary to save the life of the patient. In fact, the surgical nurses that assisted the surgeons during the operation that put this patient into the critical care unit also required that same higher level of knowledge in order to work with a surgical team in the pressure filled operating room. Imagine inexperienced, non-professional nurses assisting the cream of the medical profession, the heart surgeon, in the operating room. It doesn’t happen. Yet INS says it should happen. I have been informed by our attorney that 8 C.F.R. 214.2(h)(4)(iii)(A)(1-4) is the regulation that determines whether or not a worker qualifies as a professional for H-1B purposes, and that in particular number 4 pertains to this case. To qualify as a specialty occupation, the position must meet one of the following criteria: “(4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.” Critical care nurses must have a professional level of education to do their jobs because of the necessity of specialized knowledge and complex duties.

The reality is that it is merely the policy of INS and not the law or regulations that result in denial of H-1B visas for critical care specialty nurses. Because the arguments made by our attorney were sound, numerous INS reviewers at the Vermont Service Center approved about 40 H-1B visas over a period of several months, all without any denials. These were all for critical care RNs being petitioned for our clients. The approvals were based solely on these and similar arguments. Suddenly the approvals stopped coming. INS became aware that specialty RNs were being approved by their reviewers. They stopped the approvals and changed policy. Subsequent responses were denials. The fact is that the positions petitioned for are and were professional, the approvals were correctly issued and that the subsequent denials were improperly made merely because of INS policy.

It may surprise you to know that the Department of Veterans Affair, a department of the US government, has a policy that now requires that all new hires of critical care nurses to work at VA hospitals have at a minimum a baccalaureate degree in nursing. They must be professional. All RNs currently working for the VA without a baccalaureate are being educated at government expense to raise their education to the baccalaureate level. Evidently the federal government believes this is the minimum education level necessary to safeguard patients using its hospitals, and is using tax dollars to enforce this policy. This contrasts markedly with the INS policy that denies foreign baccalaureate nurses to the rest of the American public. This VA policy is a good policy. Yet, why is it US policy that veterans tended in VA Hospitals have baccalaureate nurses in critical care units, but not veterans in public hospitals? Civilians and veterans should also receive quality nursing care in critical care units in civil hospitals.

Tens of thousands of US citizens will die this year because hospitals and other medical facilities are not allowed by INS policy to bring in professional RNs. The Journal of the AMA is clear on this point. It seems particularly galling when contrasted with the actions taken by the administration in setting up The Department of Homeland Defense. Here, the entire fabric of government is being changed as a reaction to the bombing of the World Trade Center, the fear of future terrorism and the death of three thousand people. As to RNs, INS policy kills tens of thousands of US citizens each year. The fabric of the government does not have to be reformed. New laws need not be passed. All that needs to be done is to have an ill-conceived, recidivist policy reconsidered by INS. Critical care nurses are professional. INS should accept this, change its policy and save these tens of thousands of lives. Tell your Congressional leaders.

Brian E. Grutman, Executive Vice President
Pilot Employment Agency II, Inc.