The H-1C Visa Program Has Expired: What Other Options Are Available to Bring in Foreign Nurses?
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With the expiration of the H-1C visa for nurses on December 21, 2009, employers must consider other alternatives to hire foreign nurses. The need for visa alternatives is even more critical as the U.S. Department of Labor predicts a growing need for registered nurses due to an aging population and technological advances that emphasize preventive health care. In fact, health care is one of the two industry sectors expected to have the largest employment growth, adding four million jobs between 2008 and 2018. The proposed Comprehensive Immigration Reform for America’s Security and Prosperity Act will also affect employers hiring foreign nurses.
The following nonimmigrant visas are only available to registered nurses (RNs). Licensed practical nurses and licensed vocational nurses currently must apply for a permanent resident visa and, upon approval, wait for a visa number, since only a limited number are available annually.
A registered nurse who is a Canadian or Mexican national (but not necessarily born there) can work in the United States as a TN visa holder under the North American Free Trade Agreement, known as NAFTA. In addition to being qualified as a nurse by their home countries, such registered nurses must have been certified by the Commission of Graduates of Foreign Nursing Students International (CGFNS) and its division, the International Commission of Health Care Professionals (ICHP), in order to obtain the VisaScreen certificate. If approved for TN visa status, Canadian nurses do not need the actual visa inserted in their passports, but Mexican nurses must obtain the visa at a US consulate in Mexico. The TN visa is issued for one year, and extensions can be indefinite and up to three years in length per extension. Although extendible indefinitely, the TN visa carries with it strong nonimmigrant intent so that its issuance is dependent upon the TN visa holder continuing to demonstrate strong ties with Canada or Mexico and an intent to return there at the expiration of the authorized stay.
The H-1B visa option is intended for a “specialty occupation,” which is normally an occupation requiring a US bachelor’s degree or equivalent. This can sometimes be used for RNs, but not always since it is possible to be an RN without obtaining a US bachelor’s degree or its foreign equivalent. However, if the RN’s practice area necessarily requires four years of post-secondary school education, he or she may qualify for H-1B visa status. Some examples of nurses who require more advanced training to qualify for an H-1B are clinical nurse specialists, nurse practitioners, certified registered nurse anesthetists, nurse managers or supervisors, and critical care nurses.
To obtain any of the above visas, all RNs must pass the national licensing exam, known as the National Council Licensure Examination (NCLEX-RN). In addition, an RN must meet state licensing requirements where he or she will practice and be certified by the CGFNS for the VisaScreen certificate.
The proposed Comprehensive Immigration Reform for America’s Security and Prosperity Act (CIR ASAP) will affect the ability of employers to obtain H-1B visas insofar as the employer will be subject to stricter recruitment requirements of US workers before an H-1B visa for a foreign RN will be granted. Further, under CIR ASAP, the Department of Labor will be authorized to conduct annual audits of employers that rely heavily on H-1B visa holders.
Only RNs or physical therapists are exempt from labor certification, the first step to permanent US residence. Labor certification is the process of proving to the US Department of Labor that the prospective employer attempted to hire a US worker, either a US citizen or permanent resident, through a detailed recruitment process but was unsuccessful. Unlike registered nurses, licensed practical nurses and licensed vocational nurses are not exempt from the labor certification process. As a result, they can only be hired through the lengthy immigrant, or permanent resident, visa process, which includes the labor certification component. Therefore, since licensed practical nurses and licensed vocational nurses are not eligible for nonimmigrant visas, they must wait abroad until the labor certification process is complete, the immigrant visa is approved, and there is a visa available to them. This results in a long delay since the nursing profession falls into an immigrant visa category, known as the third preference, that has only a limited number of visas annually and is perennially oversubscribed. Even though RNs and professional nurses are listed on Schedule A, Group I as pre-certified for employment in the United States by the Department of Labor, the third preference category still applies to them, so they also have a lengthy wait. The challenge to an employer is to keep its foreign employers in the United States in nonimmigrant visa status while waiting for a permanent resident visa to be both approved and available.
The date on which a petition for permanent residence is filed is extremely important because this is the date that places the applicant in line for a visa and is known as the “priority date.” A nurse can change employers once the application is approved, even if a visa is not available, and still retain the same priority date. Once a visa becomes available, a nurse may only apply to adjust status to permanent resident from within the US if here on a valid nonimmigrant visa with the CGFNS certificate, a full and unrestricted RN license in the state of the intended employment or proof of passing the NCLEX, and a VisaScreen certificate.
Under the proposed CIR ASAP, an RN with a pending permanent resident visa petition will be able to continue working whether a visa is currently available.
Title III of proposed CIR ASAP deals with general visa reform, some of which will affect employers hiring foreign nurses. Unused employment-based and family-sponsored permanent resident visas from 1992 through 2008 will be recaptured for use, thereby increasing the number of visas available and hopefully addressing the backlog in nurses’ visas. Any unused visas each year will become available the following fiscal year. The percentage of visas available per country issued yearly can be increased, alleviating the huge backlog for nurses from countries like the Philippines. Children of Filipino World War II veterans will be exempt from annual numerical limitations on visas for Filipino nationals, also potentially alleviating the backlog of Filipino nurses awaiting visas.
Employers that use recruiting agencies will have to provide the US Secretary of Labor with information about those recruiters. The employer will be liable for the actions of its recruiter and be subject to civil penalties, in essence becoming responsible for their recruiters’ compliance with US immigration law.
It is a good time for hospitals and health care facilities to voice their opinions and concerns to their local Congressional representatives as CIR ASAP comes under consideration. Meanwhile, Poyner Spruill LLP is happy to assist employers with hands-on guidance in hiring foreign-trained nurses and to pro-actively provide visa-related information that will affect hiring foreign nurses.
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