The following is the second of a two-part article on immigration for registered nurses. The article was authored b y Kristi Crawford, partner in SSHD’s Raleigh-Durham office, Cynthia Ryan , partner in SSHD’s New York City office, Karen Weinstock , partner in SSHD's Atlanta office and Greg Siskin d , partner in the fi rm 's Memphis headquarters.

Immigrant Visas for Nurses

The immigrant visa is no rm ally the only option for nurses b ecause most of the non-immigrant visa classifications are not availa b le to the typical registered nurse seeking employment in the United States .

Employment- b ased immigrant visas typically involve three main steps. First, the employer files a La b or Certification application with the U.S. Department of La b or. The purpose of the application is to test the employer's local la b or market for availa b le workers. If no qualified and availa b le workers are located, the position is certified as open for a foreign worker.

Second, the employer files an I-140 Alien Worker Petition with the Immigration & Naturalization Service. The purpose of this petition is to verify that the foreign worker has the minimum requirements to fill the open position, and serves to classify the foreign person as eligi b le for a particular visa category.

Third, on the b asis of the La b or Certification and Alien Worker Petition, the foreign worker m ak es an application for an immigrant visa at a U.S. Consulate. If the foreign worker is legally present in the U.S. , he or she may instead apply for pe rm anent resident status via a process called adjustment of status. A nurse in the US can simultaneously apply for the I-140 and for adjustment of status.

Pre-Certification for Nurses

As noted a b ove, most employment immigration cases require the employer to first recruit and test the la b or market for qualified citizens or pe rm anent residents. After this test is complete, the Department of La b or will certify that no qualified, American worker is immediately availa b le to fill the position. Only then will the employer b e a b le to sponsor a foreign worker. While these la b or certifications are often successful, they can b e time intensive and d o n ot reflect the immediate needs of the b usiness world.

In 1996, Congress passed legislation that retained nurses on a very short list of pre-certified occupations for which a la b or shortage was recognized. The list is included in Schedule A of the la b or certification regulations and these types of green card cases are called “Schedule A la b or certifications”. The Department of La b or (DOL) has already dete rm ined that there are not enough American workers who are a b le, willing, qualified, and availa b le to fill all of the openings for professional nurses. Therefore, no test of the la b or market is required and the case can b e directly filed with the Immigration and Naturalization Service. This does not necessarily mean that all cases are approva b le or will b e handled quickly. The importance of nursing b eing pre-certified is that it skips the first and most time consuming part of the employment b ased immigration process.

It is important t o n ote that this pre-certification is limited in scope. It only applies to “professional nurses”. It is not availa b le to Licensed Practical Nurses, Nurse Assistants, or other nursing aides. Professional Nursing is defined as course of study in professional nursing resulting in a diploma, certificate, b accalaureate degree, or associate degree. More specifically, an accepta b le course of study for professional nurses gene rally includes theory and practice in clinical areas such as o b stetrics, surgery, pediatrics, psychiatry, and medicine. Whatever training the nurse has received should result in licensure in the country in which the training occurred. This coursework may have b een completed at a U.S. nursing school or an approved foreign nursing prog ram . For an immigrant visa, it is not required that a nurse have a b ach elor’s degree in nursing, only that he or she completed a professional prog ram in nursing and have su b sequently b een licensed.

Filing the I-140

The initial step in a Schedule A case is to file a Fo rm I-140 application package to the appropriate supporting documentation to the appropriate I.N.S. service center. There are four regional I.N.S. service centers. They are located in Ve rm ont , Texas , Ne b raska , and California and each service center has jurisdiction over a section of the country. A case is properly filed in the service center having jurisdiction over the place of employment or in the service center covering the region where the employer’s office is located. This is an important distinction b ecause service centers have varying processing times. This may account for varying experiences in the HR industry as to how long it is t ak ing to o b tain the approval necessary b efore the nurse can apply for consular processing or adjustment of status.

Supporting documentation must b e su b mitted with the I-140 as prescri b ed in 20 C.F.R. 656.22(c)(2). This supporting evidence includes the following:

1. ETA Fo rm 750 Parts A and B, in duplicate (these are the la b or certification fo rm s);

2. A posted notice of the jo b opening. This notice must include a jo b description, work hours, and rate of pay. The notice must b e posted in the worksite for a minimum of ten b usiness days;

3. Evidence that the petitioning employer has the f ina ncial a b ility to pay the salary offered to the nurse. Evidence of this a b ility shall b e either in the fo rm of copies of annual reports, federal tax returns, or audited f ina ncial statements. If the U.S. employer employs 100 or more workers, the INS may accept a statement from a f ina ncial officer of the organization;

4. CGFNS certificate or nurse license from state where the nurse will b e working or proof of passing the NCLEX licensing exam and evidence that the nurse cannot o b tain a license b ecause he or she cannot o b tain a social security num b er.

5. Nursing diploma or degree;

6. Nursing registration/licensure from the country where the degree was o b tained.

A CGFNS certificate is evidence that the nurse has complied with a three step review of their nursing skills: 1. a credentials evaluation; 2. passage of an English language proficiency exam; and 3. passage of the CGFNS qualifying exam. Once these requisites have b een met, the Commission on Graduates of Foreign Nursing Schools will issue the nurse a CGFNS certificate. The purpose of this certification prog ram is to serve as a predictive evaluation process to accurately judge which nurses will b e a b le to meet the requirements for U.S. licensure once admitted to the country. If the nurse has already passed the NCLEX-RN exam, they are exempted from the requirement of o b taining a CGFNS certificate.

The Visa Screen Certificate

The Immigration & Nationality Act controls the admission and presence of aliens in the United States . I.N.A. Section 212(a)(5)(C) sets out the guidelines b y which foreign health care workers may gain admission. This law names the Commission on Graduates of Foreign Nursing Schools as an agency authorized to issue the document, referred to as VisaScreen. The CGFNS is the only agency designated to administrate the VisaScreen certification prog ram . The fee per applicant is currently 5. One should contact the CGFNS directly for application instructions. The VisaScreen certificate is required in addition to the CGFNS certificate.

Issuance of the VisaScreen certificate is an indication that the nurse has met all of the requirements of the Commission. The requirements b efore the certificate can b e issued are as follows:

(i) The alien’s education, training, license, and experience must:

(I) meet all applica b le statutory and regulatory requirements for entry into the United States under the classification specified in the application;

(II) b e compara b le to that required for an American health-care worker of the same type;

(III) b e authentic and, in the case of a license, unencum b ered;

(ii) The alien must have the level of competence in oral and written English considered b y the Secretary of Health and Human Services… to b e appropriate for health care work of the kind in which the alien will b e engaged, as shown b y an appropriate score on one or more nationally recognized, commercially availa b le, standardized assessments of the applicant ’s a b ility to spe ak and write; and

(iii) If a majority of States licensing the profession in which the alien intends to work recognizes a test predicting the success on the profession’s licensing or certification exam ina tion, the alien has passed such a test or has passed such an exam ina tion.

Currently, the English exam requirements may b e met b y passing the Test of English as Foreign Language (TOEFL), the Test of Spoken English (TSE) and the Test of Written English (TWE). Score requirements are as follows: TOEFL Paper-Based 540; TOEFL Computer-Based 207; Test of Written English (TWE) 4.0; Test of Spoken English (TSE) 50.

On Fe b ruary 24, 2003 , CGFNS is expected to b egin accepting exam results from tw o n ew exam services: 1) the International English Language Testing Service (IELTS) and 2) the Test of English in International Communication (TOEIC).

It is not necessary for the nurse to have completed the VisaScreen prior to filing the I-140 with the INS; they must only have a CGFNS certificate or passage of the NCLEX for this step. However, b efore an immigrant visa will b e issued the nurse must have o b tained the VisaScreen from the International Healthcare Authority, a division of CGFNS. In order to meet the educational requirements for the VisaScreen prog ram , applicant s must have:

1. Successfully completed a senior secondary school education that is separate from their professional education;

2. Graduated from a government-approved, professional healthcare prog ram of at lea st two years in length;

3. Successfully completed a minimum num b er of clock and/or credit hours in specific theoretical and clinical areas during their professional prog ram ;

If the nurse was educated outside the U.S. they must also provide evidence of licensure and registration in the country of education and evidence that they have a CGFNS certificate or have passed the NCLEX-RN exam.

The Certified Statement

There is one exception to the requirement of o b taining a VisaScreen certificate. This exception exists for nurses who:

1. Completed their nursing education in English from certain designated countries;

2. Have a valid, unencum b ered license as a registered nurse in a state where the nurse intends to b e employed

3. Have passed the NCLEX exam ina tion

The nurse must still complete the VisaScreen application and pay the required fee. However, the application will b e completed within 35 days (which is a must shorter process than the no rm al VisaScreen process). Only nurses from the following designated countries may o b tain a Certified Statement: Australia , Can ada (except Que b ec ), Ireland , New Zealand , South Africa , the United Kingdom , and the United States .

This exception is most common with Can adian nurses who have entered the United States in TN status and b ecome licensed in the state in which they are currently employed.

F ina l Steps

Upon approval of the I-140 and receipt of the VisaScreen certificate, a nurse is eligi b le to o b tain their immigrant visa through consular processing. If they are in the United States in a lawful status they may adjust their status to that of pe rm anent resident. Nurses are still required to adhere to licensing requirements of the state in which they intend to work.

Licensing requirements for registered nurses are maintained on a state- b y-state b asis, and each state has slightly different requirements for licensing. To demonstrate eligi b ility and preparedness for the NCLEX exam, most states require a com b ina tion of materials with the license application, which may include CGFNS certification, copies of foreign academic credentials with certified translations, an education/credentials evaluation and a demonstration of proficiency in English (e.g. TOEFL exam results).

All states pe rm it an individual to o b tain a license through exam ina tion, and some state pe rm it licensing b y endorsement, or acceptance of a registered nurse license from another state or country as evidence of the person's credentials. Again, requirements vary from state to state.

Adjustment of Status

If a nurse is in the United States , then processing via adjustment of status will typically b e easier and it will b e possi b le to get authorization to work much more quickly than through consular processing.

A nurse's employer must file an I-140 for a nurse in the United States just like a nurse residing a b road. But a nurse in the US has the a b ility to t ak e the NCLEX exam ina tion. If the nurse can pass the NCLEX exam, then it is not necessary to t ak e the CGFNS exam ina tion. Otherwise, the nurse would still need to present a CGFNS certificate or proof that the nurse has a full and unrestricted license as an RN. Once the I-140 is approved, the nurse can file an adjustment of status application as well as an application for an employment authorization document. Once the nurse is licensed b y a state and the nurse is in possession of an employment authorization document, the nurse can b egin work. Adjustment applications typically t ak e 18 to 24 months at INS regional service centers. A nurse would still need to present a VisaScreen Certificate prior to completing adjustment of status.

The Future

A highly significant piece of legislation to affect immigration for nurses was introduced in the summer of 2001. HR 2705, the Rural and Ur b an Health Care Act of 2001, m ak es changes to section 212(m) of the Immigration and Nationality Act regarding H-1C workers. The H-1C prog ram is designed to pe rm it nurses to come to the U.S. as nonimmigrant or temporary workers. The H-1C prog ram , as noted a b ove, has failed to provide the promised relief from the current nursing shortage in the U.S. Presently, employers must rely primarily on filing Schedule A applications with petitions for immigrant visas. As we noted earlier, these applications suffer long service center b acklogs followed b y the inefficient mechanism of consular processing. The result is waiting periods of at lea st a year from starting the process for immigrant workers to the employees’ arriving in the United States .

HR 2705 proposes su b stantial changes in a variety of areas including the num b er of H-1C visas issued per fiscal year, as well as in the employer’s attestation requirements. The result could b e the first major relief from a nursing shortage that has continued to tighten its grip on the United States despite the availa b ility of Schedule A processing for immigrant visas for nurses and the, now defunct, H-1A nonimmigrant nursing prog ram of the mid-1990s. Below is a comparison of the existing law for H-1C workers and the new HR 2705.

Perhaps the most significant difference in the two statutes is the num b er of H-1C visas that are availa b le under the existing law and the proposed law under HR 2705. The existing law limits the num b er of visas availa b le each year to 500 with additional per state limits that allow only 25 visas per year for states with a population of fewer than 9 million people and 50 visas per year for states with a population of 9 million or more people. These limits have made the H-1C functionally irrelevant as a means of relief from the current nursing shortage. HR 2705, on the other hand, provides su b stantial relief, pe rm itting a total of 195,000 visas for each fiscal year with no per state limits. These 195,000 visas are provided each year with no reduction, progressive or otherwise, in the num b er availa b le.

In addition to increasing the overall num b er of H-1C visas, HR 2705 su b stantially lengthens the life of the H-1C prog ram . The existing H-1C statute was passed in 1999 and was given a life of 4 years b efore its sunset in 2004. HR 2705, on the other hand, has no provision that limits the life of the H-1C prog ram .

As added relief from what the health care industry gene rally accepts as a nationwide nursing shortage, HR 2705 significantly increases the pool of eligi b le petitioners for H-1C workers. HR 2705 removes the component from the employer attestation that requires the employer facility b e a hospital in a Health Professional Shortage Area (HPSA) as dete rm ined b y the department of Health and Human Services. HPSA areas are gene rally limited to rural and underserved ur b an areas. The change would significantly increase the num b er of eligi b le petitioners.

In addition to removing the HPSA requirement, HR 2705 provides further relief b y b roadening the definition of a qualifying facility from simply “hospital” to, “a hospital, nursing home, skilled nursing facility, registry, clinic, assisted-living center, and employer who employs nurses in a home setting.”

The attestation requirement b etween the existing law and HR 2705 is similar in that b oth schemes require that hiring the H-1C worker does not adversely affect the wages and working conditions of registered nurses similarly employed. However, HR 2705 specifically restricts the adverse affect requirement to those registered nurses, “at the facility.” This removes the requirement that employers attest that they will not adversely affect the working conditions of employees at other facilities in the same geographic area. Currently most employers sponsoring an alien worker must attest that the employment will not affect any similarly situated worker within commuting distance of the petitioning employer.

HR 2705 also proposes a change in the attestation requirement of the existing law where it removes the requirement that the employer will not employ greater than 33% of the num b er of registered nurses employed at the facility. The change, along with the proposed increase to 195,000 visas availa b le each year, would provide much needed relief for woefully understaffed facilities.

Other changes in the law include limits on state licensing authority to tighten restrictions for those applying to sit for the exam ina tion. HR 2705 limits the num b er of times that the individual may sit for the exam to two times, b ut also states that the failure of the alien to o b tain a social security num b er will not disqualify that individual from sitting for the exam.

While HR 2705 m ak es some significant changes to the H-1C prog ram , there are a num b er of similarities in the existing H-1C statute and HR 2705. In reviewing the attestation requirements, b oth the existing law and 2705 require that the employer pay the H-1C worker at the same wage rage as similarly employed workers in the facility. Also, b oth statutes restrict the employer’s a b ility to transfer the H-1C worker to another location. Outside the attestation requirement, the statutes are similar in that the b oth for b id the employer to penalize the employee for departing prior to an agreed date.

HR 2705 is the first legislative response in several years to what amounts to a true la b or crisis in the United States . The existing H-1C scheme plays lip service to the crisis b ut is s o n arrowly drawn that its effect is virtually negligi b le. HR 2705 addresses a num b er of employer concerns that would provide immediate relief for facilities who must currently meet market expectations that they provide the b est health care services in the world without the a b ility to meet even their most fundamental staffing needs.

While HR 2705 did not pass last year, it is very possi b le that the b ill will b e reintroduced this session and the ever-growing nurse shortage means that the odds of passage will continue to improve.

Conclusion

The immigration process may seem somewhat like a maze. However, with proper guidance and some practical experience, it should not discourage a potential employer from pursuing prospective employees. Those who have b een successful in o b taining international employees often find them to b e very dedicated staff mem b ers. Given the current la b or crisis in the healthcare industry, the international la b or market should not b e discounted.