COURT RULING MAY EFFECT FUTURE NONIMMIGRANT NURSES

Beverly Enterprises, Inc. v. Herman, District of Columbia

In this case, the court ruled that a Department of Labor regulation dealing with the H-1A program for nonimmigrant nurses was not supported by the statute.

In January 1998 Beverly Enterprises, a health care facility operator, sued the US Department of Labor (DOL) seeking to have regulations relating to the H-1A visa for nurses repealed.  While the H-1A program expired in 1995, employer obligations under it continue as long as there are unexpired H-1A visas.  Also, while the program was recently specifically repealed, it was replaced with the H-1C visa, which has many of the same requirements.

 The H-1A law, the Immigrant Nursing Relief Act of 1989 (INRA) included six attestation provisions, two of which related to wages.  One required the employer to attest that employment of the alien nurse would not adversely affect the wages or working conditions of US nurses.  The other required the alien nurses to be paid at the same wage rate as US nurses employed by the facility.  The DOL regulations expanded on these requirements.  Under the regulations, alien nurses must be paid either the prevailing wage, or if it was higher, the wage paid to similarly employed nurses at the facility, but the alien nurse had to be paid the higher of the two wages.  After a DOL investigation that resulted in a $4 million fine, Beverly Enterprises sued, claiming that the DOL regulation was not supported by the (INRA).  According to Beverly Enterprises, the INRA required only that an alien nurse be paid the facility wage, and not the prevailing wage, even it was higher.

The court first set forth the standard of review.  Because the case involves a challenge to federal agency interpretation of a law it is entrusted with enforcing, the standard of review is that set forth in a Supreme Court case commonly known as Chevron.  Under this case, the court is to determine whether Congress directly addressed the issue.  If the intent of Congress is clear, the agency rule must yield.  If Congress was silent or ambiguous on the issue, the court must determine whether the agency rule is a “permissible construction” of the statute.  Beverly Enterprises argued that Congress’ intent was clear, and that even if it was not, the DOL regulation was not permissible.  The DOL, of course, argued that Congress was not clear, and that the regulation was a permissible construction. 
The court found that the plain language of the INRA precluded the interpretation advanced by the DOL.  According to the court, the attestation requiring alien nurses to be paid the same wage as similarly employed nurses at the facility was clear and unambiguous.  The statute provided that “the alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.”  Not only is this statute clear, at about the same time the INRA was passed, Congress made extensive changes to the H-1B provisions, one of which was to require the alien be paid the facility wage or the prevailing wage, whichever was higher, indicating that Congress knew how to write a law requiring the payment of the higher of two wages.  The court further supported its opinion by noting that before it was passed, a section requiring payment of the prevailing wage was eliminated from the INRA.

Because Congress was clear in requiring alien nurses to be paid the wages of similarly employed nurses at a facility, the DOL regulation was rejected. 
 
The opinion is available online through Lexis at 2000 U.S. Dist. LEXIS 16369.

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