SPECIAL ALERT - November 3, 1999

E-mail subscribers as of November 3, 1999: 23,776 persons (50 states/131 countries).

Published by Greg Siskind, partner at the Immigration Law Offices of Siskind, Susser, Haas & Devine, Attorneys at Law; telephone: 800-748-3819, 901-737-3194 or 615-345-0225; facsimile: 630-604-9306, email: gsiskind@visalaw.com, WWW home page: http://www.visalaw.com. SSHD serves immigration clients throughout the world from its offices in the US, Canada and the People's Republic of China. To schedule a telephone or in-person consultation with the firm, go to http://www.visalaw.com/intake.html. Writers: Amy Ballentine and Greg Siskind.

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Congress has approved H.R. 441,  a major health care immigration bill and it is very likely that the bill will become law by next week. The bill will allow physicians working in medically underserved areas to qualify for permanent residency on the grounds that their work is in the national interest. The legislation also creates a new visa category – the H-1C visa – for nurses working in medically underserved areas. Finally, the bill contains an unrelated measure clarifying that certain international management consulting organizations are eligible to petition employees for L-1 visas.

The bill passed under a special legislative procedure called Suspension of the Rules that allows for a voice vote on matters not considered controversial. Such bills can pass with a voice vote and require a 2/3 approval.

PHYSICIAN NATIONAL INTEREST WAIVERS

Clearly the section of the bill that will have the broadest impact is the physician permanent residency legislation. The bill will permit physicians who make a long term commitment to working in this nation’s health professional shortage areas to receive green cards. 

According to Washington immigration lawyer Jan Pederson,

“The passage of this bill is a strong affirmation of the outstanding contributions foreign physicians working in medically  underserved areas of America caring for te poor and elderly have made to the improvement of the delivery of health care in America that there was strong bipartisan support in both the Senate and the House to restore NIWs to physicians.  J-1 physicians should be proud of their contributions to health care in America and understand this special legislation recognizes them as valuable members of America's health care system.”

Pederson, who closely followed the development of this legislation, notes that a few key members of Congress played a crucial role in passing the bill and deserve the thanks of health care employers and immigrant physicians who will benefit. Pederson and others who worked hard on the bill are urging supporters of the legislation to write notes of thanks to Senators Trent Lott, Spencer Abraham, Tom Daschle and Congressman Lamar Smith. Addresses can be found at http://congress.nw.dc.us/c-span/congdir.html.

The new law requires the government to grant a national interest waiver-based permanent residency petition filed on behalf of any alien physician who meets the following tests:

-         the physician agrees to work full time as a physician in an area or areas designated by the Department of Health and Human Services as having a shortage of doctors or at a health care facility run by the Department of Veterans.

-         a Federal agency or a department of public health in any State (has previously determined that the foreign physician’s work in the area of the petitioning facility is in the public interest (generally this will mean by obtaining a J-1 home residency waiver). Interestingly, any state health agency can sponsor and not just the state's department of health. Also, one need not ever have had a J-1 visa to qualify here (i.e. people who did their residency programs as H-1B visa holders can qualify).

-         Physicians may not complete green card processing until he or she has worked for an aggregate of five years (not including time spent as a J-1 visa holder) in an area designated by the Secretary of Health and Human Services as having a health professional shortage area or in a Veterans Administration facility. A permanent residency application based on this law can be submitted at any point and that the INS cannot COMPLETE processing until five years are met. This means that one can file for adjustment of status prior to five years being met. For people in circumstances where their H-1B visa time is running out, this could be very helpful.

-         Physicians previously approved for national interest waivers will not be affected. For physicians with pending waiver applications filed before November 1, 1998, the five year requirement will be reduced to three years. For every one else, the five year requirement applies. It is not clear from the statute whether one who filed before November 1, 1998 based on working in an underserved area but for whom the petition was denied, can take advantage of the three year requirement. The plain language of the statute indicates this is the case and this seems likely given that there are probably very few I-140 cases still pending from before that.

The law takes effect immediately and does not call for the INS to issue implementing regulations.

H-1C  VISAS FOR NURSES

The “Nursing Relief for Disadvantaged Areas Act of 1999” is very similar to the physician bill in terms of its basic intention – to deliver health care to underserved areas. However, the bill contains a broad array of restrictions that will make it available to only a small percentage of employers hiring nurses (even if they are in an underserved area). Generally, large, urban hospitals with a substantial elderly and indigent population will benefit. Rural communities are not likely to be helped.

The bill creates a new H-1C visa for registered nurses. The program is very similar to the old H-1A visa category, but limits the number of visas issued annually to 500 and restricts the category to facilities in health professional shortage areas.

The H-1A visa program was created by the Immigration Nursing Relief Act of 1989. The program lasted until September 1, 1995 and Congress permitted nurses already in the country to work until September 30, 1997. The H-1A visa had no cap and was used by as many as 6,500 nurses a year. Nurses on H-1A visas could stay for up to five years.

Under the new H-1C program, nurses must meet the following qualifications:

-         the nurse must have obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained his or her nursing education or, in the alternative, the nurse must have been educated in the United States;

-         the nurse has passed an appropriate examination (recognized in regulations that must be issued by the Department of Health and Human Services) or has a full and unrestricted license under the laws of the state where the nurse intends to work; and

-         the nurse is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be employed by the facility.

These provisions are very similar to the old H-1A rules.

Also like the old H-1A category, employers must keep an attestation notice on file regarding the H-1C nurse. The employer must attest to the following:

-         the employer meets the definition of “facility” contained in the statute (more on this below);

-         the employment of the alien will not adversely affect the wages and working conditions of other RNs similarly employed;

-         the alien will be paid the wage rate for nurses similarly employed by the facility;

-         the facility has taken (after the date of the bill’s enactment) and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are US citizens or permanent residents who are authorized to perform nursing services in order to end the facility’s dependence on the H-1C program;

-         there is not a strike or lockout in the course of a labor dispute, the facility has not had layoffs and will not lay off an RN within 90 days before and after the filing of an H-1C petition, and the hiring of the H-1C nurse is not intended to influence the election of a union to represent nurses at the facility;

-         at the time of filing the petition, notice of the filing of the petition has been provided to the union for the nurses or, where there is no union, notice of the filing has been given via posting of the notice in conspicuous locations

-         the facility will not employ a number of H-1C nurses that exceeds 33% of the total number of RNs employed at the facility. [This would seem to be a relatively meaningless requirement given the fact that the most H-1C visas that are allocated to a state in a year is 50.]

-         the facility will not let H-1C nurses perform nursing services at any work site other than a work site controlled by the facility or transfer the place of employment of the H-1C nurse from one work site to another.

Every nurse at the facility is supposed to be provided with a copy of the attestation within 30 days of the filing of the H-1C petition.

With regard to the “significant steps” to recruit and retain nurses, the statute provides a list of methods that will meet the test (though employers may take other steps as well and potentially meet the requirements of the statute). The list is as follows:

-         operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere;

-         providing career development programs and other methods of facilitating health care workers to become registered nurses;

-         paying RNs at a higher rate than nurses similarly employed are making at other facilities in the geographic area;

-         providing reasonable opportunities for meaningful salary advancement by RNs.

A facility does not need to take more than one step if it can show that a second step is not reasonable.

The requirements that are likely to most drastically reduce the number of employer taking advantage of the new law are provisions that define the type of “facility” covered by the legislation. First, eligible hospitals must have no less than 190 acute care beds.  A number of experts we spoke to indicated that this requirement effectively eliminates most rural hospitals which tend to be much smaller. Generally, only large urban hospitals in health professional shortage areas will be able to meet the test.  Also, not less than 35% of the patient’s must be on Medicare and not less than 28% must be on Medicaid.

The attestations will remain valid for one year or at the end of the period of admission (the expiration date of the I-94) of the last H-1C nurse with respect to whose admission the attestation was applied. The attestation can cover nurses who file during the one year period if the employer is still complying with the conditions in the attestation. More than one nurse can be covered in the same attestation.

H-1C visa holders can receive a period of admission for up to three years. Changes of status to the H-1C visa can be made at any time after the date that interim or final regulations are made. Interim regulations are due no later than the beginning of February.

The statute calls on the Department of Labor to make various reports and disclosures. First, the DOL must make a list of facilities that file H-1C visas and make available to the public a copy of the facility’s attestation, accompanying documentation and petitions filed). By no later than four years from now (but, hopefully sooner, according to the legislative report accompanying the bill), the DOL must issue a report (jointly with the Department of Health and Human Services) that contains recommendations to Congress on a program to eliminate the dependence of certain hospitals on H-1C foreign nurses by providing for a permanent resolution.

The report is also supposed to recommend ways to more effectively enforce the qualification and attestation requirements of the H-1C program. Among those measures that might be discussed are programs to recruit more college-educated into the nursing profession, programs to retain people already in the field, programs to give financial help to needy young people willing to work in medically underserved areas, studies to determine what will get experienced nurses to work in underserved areas and the expansion of federal programs that already deal with these problems. [Editorial note: One has to wonder why a study is needed on this since only a maximum of 500 nurses a year will come in on the program and the number of facilities where they may work is extremely limited. The chances of this small population having any measurable impact on the labor market for RNs is probably Nil.]

Like the H-1A and H-1B visa regulations, fines may be imposed on employers who do not comply with the attestation rules. Such fines may be up to $10,000 for a single violation and employers can be barred from being approved to take H-1C workers for a year.

The Labor Department is authorized under the bill to charge a filing fee for attestations. No amount is set, but the Labor Department may charge up to $250.

Finally, the bill contains certain exemptions regarding certification that relate to the 1996 Immigration Act. That law provides for a certification process for aliens seeking to enter the US to work as non-physician health care workers. The law was created with the stated purpose of ensuring that the credentials of alien health care workers are authentic and that they have sufficient training and English language ability to adequately do their work.

The new law exempts H-1C nurses from this bill when the Commission on Graduates of Foreign Nursing Schools (or an approved equivalent independent credentialing organization certifies that the alien has

(1)   a valid and unrestricted license as a nurse in a state where the alien will be working and the state verifies that the foreign nurse’s licese is authentic and unencumbered;

(2)   passed the National Council Licensure Examination (NCLEX);

(3)   is the graduate of a nursing program taught in English and either the CGFNS has designated the country where the nursing program is located within 30 days of this new law is passed based on an assessment of the quality of nursing education in that country and the English language skills of those country’s nursing graduates is sufficient or the CGNFS and any other designated credentialing organization unanimously later agree to the country being added; and

(4)   is a graduate of a nursing program which was in operation on or before the date of enactment of the bill or has been approved by unanimous consent of CGFNS and any other approved credentialing organization.

The bill has a four year sunset provision, though Congress may choose to extend it. 

L-1 VISAS FOR INTERNATIONAL MANAGEMENT CONSULTANTS

H.R. 441 also includes a provision that allows employees of certain management consulting firms to qualify for L-1 visas. L-1 visas allow a US company which is part of an international business to make intra-company transfers from overseas of foreign executives, managers and employees with specialized knowledge. The bill will allow independent accounting firms to qualify as related entities under the L-1 rules if the firms are part of an organization that markets management consulting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is collectively owned by the member firms. Currently, international accounting firms have this available.

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