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On December 20, 2002, the INS issued a memorandum stating that an INS Form I-140, Petition for Immigrant Worker, for a nurse man be approved if the state where the nurse will work confirms passage of the NCLEX-RN exam and eligibility for a license in that state. The memo is meant to overcome the problem with inability to obtain licenses where social security numbers could not be obtained.
The INS announced on November 27, 2002, that it will approve H-1B nonimmigrant worker petitions on behalf of certain foreign nurses, if the statutory and regulatory requirements of the H-1B visa classification are met. A foreign nurse is eligible for the H-1B visa classification if he or she is in a specialty occupation and has full state licensure to practice nursing. In order to be licensed as an RN, a foreign nurse must graduate from an approved nursing program and pass the National Council of Licensure Examination for Registered Nurses (NCLEX-RN) exam. The minimum requirement for entry into the field of nursing as an RN is a two-year associate degree in nursing (A.D.N.), meaning a typical RN would not likely be eligible for the H-1B classification. Accordingly, RN positions do not generally require a bachelor's or higher degree. In order to file a successful petition for a foreign nurse in the H-1B classification, the U.S. employer will have to show that a bachelor's or higher degree (or its equivalent) is normally the minimum requirement for entry into the position available, that the degree requirement is common to the industry, and that the employer normally requires a bachelor's or higher degree for the position available. This change is likely to benefit U.S. hospitals and clinics that have the need of advanced practice nurses, such as those in administrative positions.
Temporary employment visas for nurses
By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary
The H-1A visa
program for nurses, which had limited application, expired on September
30, 1997. On November 12, 1999,
President Clinton signed into law H.R. 441, the "Nursing Relief for Disadvantaged
Areas Act" (Public Law 106-095, the "NRDAA"), which repealed the H-1A visa
for nurses and created a new nonimmigrant visa category for nurses
(H-1C) who will work in areas designated as “Health Professional Shortage
Areas by the Department of Health and Human Services.“
The new law required the U.S. Department of Labor ("DOL") to issue new regulations. These new regulations became effective on September 21, 2000. The law provides for 500 H-1C visas annually for the next four fiscal years. Similar to the H-1A program, facilities would have to file a labor attestation with DOL, which may charge a fee of $250.00 per application. The number of visas is not nearly enough to meet the demands of U.S. hospitals and clinics for nurses. States with fewer than 9 million population receive an allocation of 25 H-1C visas. States with more than 9 million population are allocated 50 visas. The H-1C visa is issued for three years, with no extensions.
The law also provides for specific acceptance of CGFNS certifications for all foreign nurses for Section 212(a)(5)(C). Other provisions include a national interest waiver for H-1B physicians working in shortage areas and L-1 status for international accounting and consulting firms.
The INS published regulations to implement the H-1C visa program and the NRDAA on June 11, 2001. But it is clear that restrictions on eligibility of hospitals and clinics make the program nearly unworkable.
The new regulations require that the hospital or clinic employing the foreign-trained nurse certify that the nurse has a valid and unrestricted license in the state where the nurse intends to be employed; has passed the National Council Licensure Examination (NCLEX); is a graduate of an English-language nursing program in a country designated by CGFNS. The U.S. Department of Labor (DOL) has oversight responsibilities.
The INS published federal regulations regarding health care workers wishing to immigrate in the Federal Register on October 14, 1998. These regulations may be accessed by clicking on the following link: CLICK HERE.
Screening and eligibility requirements
Section 343 of
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA)
of 1996 required that certain health care professionals educated outside
the United States satisfy a screening program prior to receiving a temporary
or permanent occupational visa (including H-1B, H-2B, TN, and permanent
resident alien visas). The screening includes an assessment of an applicant's
foreign education to insure that it is comparable to that of a U.S. graduate
in the same profession; (2) verification that the applicant's licenses
are valid and unencumbered; (3) determination of English language proficiency;
and, in the case of nursing applicants, (4) verification that the nurse
has either earned a CGFNS certificate or has passed the National Council
Licensure Examination for Registered Nurses (NCLEX-RN).
CGFNS provides for screening through its VisaScreen program, operated by a CGFNS subdivision, the International Commission on Healthcare Professions (ICHP).
The first step in obtaining an H-1C visa for a nonimmigrant professional nurse is usually for the hospital or clinic to obtain an attestation from the Department of Labor. The approved health care facility that plans to employ the alien nurse must request a prevailing wage statement from the state employment security agency and submit it with a properly completed Form ETA-9081. Information about eligibility requirements for hospitals and clinics may be found on the DOL website: CLICK HERE (NOTE: This link will take you away from the Immigration Law Center on the Internet.)
The facility must post each application for attestation, each petition for an H-1C nurse and each approval of a petition. The Department of Labor must be given notice of each application filed on behalf of a temporary position for a nurse and of each approval. Notices must remain posted throughout their period of validity. If there is a bargaining representative, notices shall be given to him or her instead of being posted.
Nursing contractors must attest that they will only contract H-1C nurses to facilities with approved attestations and will keep copies of the attestations from each such facility. Within 30 days of receiving the attestation, the Chief of the Division of Foreign Labor Certifications must act upon it or it shall be deemed accepted for filing. The date of acceptance for filing is the date the attestation is signed by the Chief and is valid for one year from that date. Denials may be appealed to the Board of Labor Certification Appeals.
The hospital or clinic then files its petition on INS Form I-129 for the foreign national nurse and awaits INS adjudication at an INS Service enter. The foreign national nurse may be in the United States on another valid visa, or be overseas. If the foreign national nurse is overseas, the approval of the I-129 petition for the H-1C visa should be sent to the U.S. consulate in the nurse's home country.
Applicants must have obtained a full and unrestricted license to practice professional nursing in the country where the nurse obtaining her nursing education, or have received nursing education in the U.S. or Canada; have passed the CGFNS exam or have a full and unrestricted state license to practice professional nursing in the state of intended employment. Nurses may be admitted under the new H-1C visa for three years, but there is no provision for an extension of this visa. The new program will expire in about four years.
Foreign national nurses who are already in the United States, but do not have immigrant visas, should complete the VisaScreen procedures and obtain their certificate. Other requirements follow:
1. The applicant
must have a full, unrestricted license to practice professional nursing
in the country where they obtained their nursing education in the United
2. The applicant must have passed an appropriate examination determined by the Department of Health and Human Services, or have a full and unrestricted license to practice as a registered nurse in the state of intended employment.
3. The applicant must be fully qualified and eligible under state laws and regulations of the state of intended employment to practice as a registered nurse immediately upon admission to the United States.
nurses should contact CGFNS in the United States at (215) 349-8767, or
the International Commission on Healthcare Professions
at (215) 349-6721, or fax, (215) 349-0026, or via the Internet at email@example.com.
CGFNS has a new web site where foreign-trained nurses may obtain new information
about how to qualify for certification: CLICK
Information about application for English language proficiency testing (TOEFL, TWE and TSE) can be obtained from Educational Testing Services, P.O. Box 6151, Princeton, NJ 08541-6151 U.S.A., telephone (609) 771-7100, or fax (609) 771-7500, or e-mail firstname.lastname@example.org. A source for MELAB is the English Language Institute, 3020 North University Building, Ann Arbor, MI 48109-1057 U.S.A., telephone (313) 763-3452, or (313) 764-2416.
Eligibility requirements for hospitals and clinics
The NRDAA is fairly clear in imposing severe restrictions on U.S. hospital and clinic eligibility, thus making the H-1C visa program almost unworkable and useless in most of the United States. A "qualifying facility," as defined in Section 1886(d)(1)(B) of the Social Security Act, Title 42 U.S.C. Section 1395ww(d)(1)(B), is one which:
(1) Was located in a health
professional shortage area (HPSA), as determined by the Department of Health
and Human Services, on March 31, 1997. A list of HPSA's, as of March
31, 1997, was published in the Federal Register on May 30, 1997
(62 Federal Register 29395).
(2) Had at least 190 acute care beds, as determined by its settled cost report, filed under Title XVIII of the Social Security Act (Title 42 U.S.C. Section 1395), for its fiscal year 1994 cost reporting period.
(3) Had at least 35 percent of its acute care inpatient days reimbursed by Medicare, as determined by its settled cost report, filed under Title XVIII of the
Social Security Act, for its fiscal year 1994 cost reporting period.
(4) Had at least 28 percent of its acute care inpatient days reimbursed by Medicaid, as determined by its settled cost report, filed under Title XVIII of the
Social Security Act, for its fiscal year 1994 cost reporting period.
It may be possible to obtain an H-1B (specialty worker) nonimmigrant visa for a foreign-trained registered nurse supervisor, if the focus of the position would not be patient care, but there is at least one case that indicates even a nurse practicing at this level would be denied an H-1B visa. Unless and until Congress changes the law to relax the eligibility requirements for U.S. hospitals and clinics, health facilities will continue to suffer staffing shortages, and their patients will suffer as well.
Boyd F. Campbell practices immigration and nationality law in Montgomery, Alabama, and is a member of the American Immigration Lawyers Association. He is a past Chair of the Immigration Law Committee of the American Bar Association’s General Practice, Solo and Small Firm Lawyers Section, and serves as Chair of the International Law Section of the Alabama State Bar. From 1994 to 1998, he served on the ABA's Coordinating Committee on Immigration Law. Mr. Campbell is listed by Best Lawyers in America: CLICK HERE. and in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. He is a civil law notary, having been appointed by the Alabama Secretary of State to this official position in August, 2001. For more information about Mr. Campbell, CLICK HERE.
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Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, AL 36111-0032 U.S.A.
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