H-1C NURSE REGULATIONS ISSUED

This week the INS finally released regulations to implement the H-1C visa program, which became law in November 1999.  The law provides for the temporary entry of up to 500 registered nurses to work in certain designated facilities.  The Department of Labor, which is also involved in the program, released its regulations in August 2000.  The H-1C program is much like the H-1A program that expired a few years ago, which also provided for the nonimmigrant entry of registered nurses.  However, unlike the H-1A program, the H-1C program places an annual cap on the number of visas, and requires many more attestations from the facilities that will employ the nurses. 

There are three primary eligibility requirements for foreign nurses who wish to work in the US on an H-1C visa:

·        They must have an unrestricted licenses to work as a professional nurse in the country where they received their nursing training, or have received that training in the US;

·        They must pass an examination approved by the Department of Health and Human Services or have a license to work as a professional nurse in the state where they will work; and

·        They must be eligible to work as a registered nurse under both the laws of the state where they will work and the regulations of the facility where they will work.

Currently, the examination is that offered by the Commission on Graduates of Foreign Nursing Schools (CGFNS).  CGFNS certifies that the foreign nurse’s training and license are equivalent to a similarly situated US nurse, that all their documents are authentic, that the foreign nurse has an unrestricted license, that the foreign nurse is sufficiently proficient in written and spoken English, and that the foreign nurse has in fact passed a state licensing exam.  Questions about the exam may be directed to CGFNS through its website at http://www.cgfns.org.

There are a number of requirements and restrictions that H-1C employers must face.  The facility must have been in a designated health professional shortage area as of March 31, 1997.  It must have at least 190 acute care beds, and at least 35 percent of the facility’s patient care days must be for the care of people eligible for Medicaid.  This means that only a limited number of facilities are eligible to apply for H-1C nurses.  According to the Department of Labor, the following are the eligible facilities:

1. Beaumont Regional Medical Center, Beaumont, TX

2. Beverly Hospital, Montebello, CA

3. Doctors Medical Center, Modesto, CA

4. Elizabeth General Medical Center, Elizabeth, NJ

5. Fairview Park Hospital, Dublin, GA

6. Lutheran Medical Center, St. Louis, MO

7. McAllen Medical Center, McAllen, TX

8. Mercy Medical Center, Baltimore, MD

9. Mercy Regional Medical Center, Laredo, TX

10. Peninsula Hospital Center, Far Rockaway, NY

11. Southeastern Regional Medical Center, Lumberton, NC

12. Southwest General Hospital, San Antonio, TX

13. St. Bernard Hospital, Chicago, IL

14. Valley Baptist Medical Center, Harlingen, TX

The DOL acknowledges that other facilities might qualify, however, but have simply not been identified.

There are a number of attestations that the facility must make, including:

·        The employment of the H-1C nurse will not adversely affect the wage and working conditions of other nurses similarly employed;

·        The H-1C nurse will be paid the same wage as other nurses similarly employed by the facility;

·        There is no current strike or labor dispute;

·        The facility has not laid off any nurse, nor will it do so during the period from 90 days before filing the H-1C petition to 90 days after the filing;

·        The H-1C nurse is not being employed in an effort to effect the outcome of a union election;

·        Notice of the filing for an H-1C nurse must be provided to a union representative, or if there is no such representative, to all nurses at the facility by posting a notice in a conspicuous place;

·        The facility will not have H-1C nurses as more than 33 percent of its nursing staff;

·        The H-1C nurse will be allowed to work only at the petitioning facility; and

·        The H-1C nurse will not be transferred to another facility.

The facility must also make a number of attestations regarding its effort to recruit US nurses, including:

·        Operation or financing of a facility for training registered nurses;

·        Provision of career development programs to help other health care workers become registered nurses;

·        Payment to registered nurses of wages higher than others similarly employed in the area; or

·        Provision of reasonable opportunities for career advancement, including salary increases.

The penalty for misrepresenting these attestations is a fine of up to 00 per nurse per violation.  The facility can also be barred from participation in the H-1C program.

Filing an H-1C petition will be done on Form I-129.  The application must include evidence that the attestations have been submitted to the Department of Labor, a statement of any state restrictions on the employment of foreign nurses, and evidence that the proposed H-1C nurse meets all the licensing and other requirements for the visa.  All H-1C applications are to be filed with the Vermont Service Center.

Along with the overall annual cap of 500 visas, there are limits on the number of H-1C nurses that may be employed in each state.  States with a population of under nine million according to the 1990 Census are limited to 25 H-1C nurses.  States with a population over nine million are limited to 50 nurses.

The maximum period of admission on an H-1C visa is three years, and no extensions of stay are allowed.  Also, the three-year limit is over a lifetime – that is, unlike H-1B visas, there is no provision for the nurse to remain outside of the US for a specified period of time and then be eligible for another H-1C visa. 

Many critics have completely dismissed the program as being unworkable and so limited as to have no impact whatsoever on the nation’s severe nurse shortage.