Posts in Category: Immigration Law

Nonimmigrant Options for Registered Nurses

 

 

Professional nurses may apply under either the TN (if they are Canadian citizens) or H-1B category. The requirements for TN and H-1B are briefly discussed below. However, it is recommended that readers also refer to the detailed general discussion section relating to the TN and H-1B categories.

TN Status for Nurses Having Canadian Citizenship

The most appropriate category for Canadian registered nurses is the TN category under the North American Free Trade Agreement (“NAFTA”). The availability of TN status gives Canadian nurses a simplified procedure for obtaining entry as a temporary worker. Even professional nurses other than registered nurses may qualify for TN status as a medical technologist, which is also a listed profession in Appendix 1603.D.1. However, the benefits of NAFTA apply only to Canadian citizens, not landed immigrants.

Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. In contrast to the H-1B category, registered nurses require only a state or provincial licence to practice in order to establish the necessary credentials. A licence to practice in any state or province should technically establish the necessary qualifications. However, where a licence to practice as a registered nurse is required in the state of intended employment, an applicant must also have such a licence before TN status will be granted. A temporary or interim licence should be sufficient to permit entry under the TN category.

TN workers can apply for status at a port of entry just prior to entering the United States. A properly prepared TN application takes only a few minutes to adjudicate. Once admitted, a TN worker is granted an initial stay of one year. Thereafter, a TN professional may request extensions of stay for one-year increments. There is currently no limit on the number of extensions that may be granted.

H-1 Status for Nurses Not Having Canadian Citizenship

Registered nurses who are not Canadian citizens are not eligible for TN status and must apply for an H visa. Prior to September 1, 1990, professional nurses who had bachelor degrees in the field applied as professionals under the H-1B category. After that date, foreign nurses had to seek temporary status under the H-1A category. The H-1A category imposed onerous labor conditions upon the employer but did not require that the foreign nurse have a bachelor degree as a condition of eligibility.

On September 1, 1995 the five-year program which established the H-1A category expired and Congress did not act to extend the program before that date. However, professional nurses are once again be eligible to apply as professionals under the H-1B category, provided that they meet the requirements thereof.

The H-1B category is open to aliens seeking entry into the United States to work in a “specialty occupation”. However, it must first be shown that the job requires someone in a specialty occupation. It the job qualifies, it must then be established that the H-1B worker meets the requirements for the job.

The term “specialty occupation” is defined as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. To qualify as a specialty occupation, one of the following must be shown:

  1. a bachelor degree or higher degree (or it equivalent) is normally the minimum entry requirement for the position;
  2. the requirement of a degree for the position is common in the industry or the position is so unique or complex that it can only be performed by someone with a degree;
  3. the employer normally requires a degree or its equivalent for the position; or
  4. the nature of the job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor or higher degree.

If the position is a specialty occupation, the H-1B worker must then show that he or she is qualified to fill the position. To meet the requirements of the specialty occupation, the alien must possess the following:

  1. full state licensure, if required for practice in the state; and
  2. either of the following:
    1. completion of a bachelor or higher degree (or its equivalent) in the specific specialty; or
    2. experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

For the purpose of determining equivalency to a bachelor degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the H-1B worker lacks.

In order to hire an H-1B worker, a U.S. employer must comply with several labor requirements including attesting to the fact that it will pay the greater of the actual wage paid by that employer to all other individuals with similar experience and qualifications at the place of employment and the prevailing wage for the occupation in the area of intended employment.

An H-1B visa is valid initially for up to three years. Extensions of up to three years at a time may be requested to a maximum total stay of six years. The H-1B worker must then remain outside the United States for at least one year before becoming eligible for H status again.

New H-1C Category for Professional Nurses

On November 12, 1999, the President signed the Nursing Relief for Disadvantaged Areas Act of 1999 into law. In order to qualify for an H-1C, nurses must:

  1. Have a full and unrestricted license as a nurse in their home countries or must have been educated in the United States;
  2. Pass an appropriate examination (to be determined by HHS), or have a full and unrestricted license to practice as an RN in the state of intended employment;
  3. Must be fully qualified and eligible under all state laws and regulations to practice as an RN in the state of intended employment immediately upon admission to the United States.

The statute requires facilities hiring H-1C nurses to file an attestation with the Department of Labor that confirms the following:

 

  1. The employer is a hospital (as defined under the Social Security Act) and is located in a designated health professional shortage area, has at least 190 acute care beds, and that, since 1994, has had at least 35% of its patients entitled to Medicare, and at least 28% Medicaid;
  2. Employment of the nurse will not adversely affect wages and working conditions of similarly employed nurses;
  3. The nurse will be paid the same rate as other registered nurses similarly employed at the facility;
  4. The facility has taken and is taking timely and significant steps to recruit and retain U.S. citizen or immigrant registered nurses, including (without limitation):
    1. Operating a training program for nurses at the facility or financing (or providing participation in) a program elsewhere;
    2. Providing career development programs and other methods to encourage other health care workers to become registered nurses;
    3. Paying a wage to registered nurses higher than the prevailing wage;
    4. Providing “reasonable opportunities for meaningful salary advancement” by RNs.;
  5. There is no strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility with in the 90 days before and the 90 days after the date of filing a visa petition for the H-1C nurse and the employment of an H-1C nurse is not intended or designed to influence union activity (layoff means loss of employment other than through discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or expiration of a grant or contract but does not include any situation in which the work is offered, as an alternative to termination, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits, regardless of whether the alternative job offer is accepted).
  6. Notice of the filing is provided to the bargaining representative for registered nurses at the facility or, if no bargaining representative, has been posted to employees in conspicuous locations;
  7. That the facility will never employ H-1C nurses as more than 33% of its total registered nursing staff;
  8. The H-1C nurse will not work at any worksite not directly controlled by the employer or transfer the H-1C nurse to another worksite during the course of the nurse’s employment.

 

Attestations are valid for one year from date of filing, or the last day that any H-1C nurse is employed under the attestation (whichever is later), and can be used for filing petitions for one year from the date of its filing.

More than one nurse may be included in a single petition. H-1C nurses may be admitted for three years; no extensions are provided.

Where the facility has failed to meet a condition in the attestation or misrepresented a material fact, a civil penalty of up to $1000 per nurse per violation up to $10,000 and a bar on filing H-1C petitions of at least one year may be imposed. In addition, where the facility has violated the wage attestation, the Department of Labor may order the employer to provide back pay to the H-1C worker.

Up to 500 H-1C visas may be issued each year. States with less than 9 million in population as of 1990 may not have more than 25 visas annually; states with more than 9 million can have no more than 50 visas annually. However, if not all visas available in a quarter are used, the visas may be issued to states regardless of their population or the state cap in the last quarter of the fiscal year.

The Immigration and Naturalization Service must promulgate regulations for the H-1C category within 90 days from the date of the statute’s enactment. The category will sunset four years after date the regulations are first promulgated.

Exclusion for Foreign Health Care Workers

Nurses should be aware that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”) now makes registered nurses excludable both as nonimmigrants and immigrants under the new INA 212(a)(5)(C) unless they have been certified by the Commission on Graduates of Foreign Nursing Schools (“CGFNS”). The CGFNS is an independent, non-profit organization which developed the CGFNS examination to test the capabilities of foreign professional nurses in all areas of nursing for which American nurse graduates are responsible, and to give an objective estimate of their ability to pass licensure examinations in the United States.

A subsequent memorandum from the INS clarified that the existing CGFNS certification was not sufficient to overcome INA 212(a)(5)(C). In addition, the INS took the position that it would not accept certifications until its regulations were promulgated.

FOREIGN PROFESSIONALS: MAYBE A RARE COMMODITY

Unemployment is not a problem across many industries in the U.S. In fact, the major media and technical journals speak of labor shortages. Particularly hard hit is the computer industry. Wages for college degreed computer engineers is staggering. The competition for qualified professional and technical workers is enormous. 

        U.S. immigration law responds to temporary labor shortages, and to otherwise enable U.S. business to avail itself of the best and brightest. The H-1b nonimmigrant visa category looks to the global labor supply for professional workers. Professionals are bachelors’ degreed individuals who occupy positions that require the degree in order to be performed. 

        The Immigration Act of 1990 capped the number of H-1b visas at 65,000 annually. Until then, there were an unlimited number of H-1b professionals who could enter the U.S. For the first few years, there were a sufficient number of visas for all that qualified for H-1b status. In May 1998, demand exceeded availability, and a backlog was created. There was confusion at the INS and amongst the public as to how cases in the pipeline were going to be handled. Fortunately, a pragmatic approach was taken. These circumstances were deemed beyond the aliens’ control and they were able to gain status anyway. Part of the solution included a carry over of petitions for H-1b status from last year to this year’s total. 

        In October 1998, after the start of the new fiscal year at INS, Congress passed the American Competitiveness and Workplace Improvement Act of 1998. This law lifted the cap on H-1bs to 115,000 until 2000 and then down to, 107,500 in 2001. In 2002 the law will revert back to 65,000 per year. 

        Despite the new increase, it is expected that H-1b numbers will again run out during May 1999. Foreign professional workers will have to wait until the start of the next federal fiscal year on October 1, 1999, or perhaps longer, in order to commence employment. 

        If you require foreign professional workers, but worry about the H-1b issue, there is something you can do. You can contact your Congressman or Senator. Telephone calls, letters, e-mails and the like make the difference.