ABCs
of Immigration: H-1C Visas for Registered Nurses
One of the few
immigration measures passed in the last Congress was the extension of a little
known nurse visa category called the H-1C. In November 2006, Congress approved
legislation to extend the H-1C program for three more years. The program
remains unchanged in substance.
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Late in 1999, Congress
passed the Nursing Relief for Disadvantaged Areas Act, which calls for the
creation of a new H-1C visa for nurses going to work for up to three years in
health professional shortage areas. Up to 500 nurses per year can get the visa,
but each state is limited to 25 H-1C nurses a year. Under the law, facilities
interested in sponsoring nurses for H-1C visas must submit a document
containing a number of attestations regarding the employment of H-1C nurses.
As with most immigration laws, the statute itself provides very little guidance
on how the law will be applied, leaving it to USCIS (and as in most employment
visa cases, the Department of Labor) to develop regulations. The regulations
for the H-1C program became effective in September 2000.
One of the most
surprising elements when the Labor Department released its regulations was a
finding that based on the restrictive definition of "facility"
Congress put in the statute, only fourteen hospitals in the country could be
initially determined to qualify to apply for H-1C visas.
However, that was
incorrect at the time and there are many more facilities that now meet the H-1C
regulatory requirements.
H-1C employers must meet various attestation requirements. The attestation
process is administered by the Employment and Training Administration at the
Department of Labor. Enforcement of the attestations is overseen by the
Employment Standards Administration’s Wages and Hours Division.
The 1999 law is very
similar to a 1989 law that created the H-1A visa for nurses. That visa category
expired several years ago after unsuccessful efforts to extend its life. The
key differences between the two programs are that a much smaller number of H-1C
visas have been allocated and that the facility where the nurse will work must
be in a health professional shortage area. There are also requirements limiting
a facility’s dependence on H-1C nurses (something that is hard to imagine given
that only 500 H-1C nurses permitted into the country each year, with no more
than 25 allowed to work in a single state).
The Department of Labor has created an attestation form called the ETA 9081. On
the form, the facility must attest to the following:
1. That it is a qualifying facility. If the ETA 9081 is the first one being
filed by a facility, then the form must be accompanied by copies of the pages
from the paperwork filed with the Department of Health and Human Services
showing the number of acute care beds and the percentages of Medicaid and
Medicare reimbursed acute care inpatient days. A copy of this paperwork must
also be kept in a public access file.
2. That the employment of H-1C nurses will not adversely affect the wages or
working conditions of similarly employed nurses.
3. That the facility will pay the H-1C nurse the facility wage rate.
4. That the facility has taken and is taking timely and significant steps to
recruit and retain nurses in order to reduce dependence on immigrant nurses. At
least two such steps must be taken unless it can show that the second step is
not reasonable. Documentation of these steps needs to be included in the
facility’s public access file for H-1C nurse petitions. Steps which may be
taken can include:
a.
Operating a training program for registered nurses at the facility or financing
or providing participation in a training program elsewhere.
b. Providing career development programs and other methods of facilitating health
care workers to become RNs.
c. Paying registered nurses wages at a rate at least 5% higher than the
prevailing wage for the area.
d. Providing reasonable opportunities for meaningful salary advancement by
registered nurses.
e. Any other steps that would be considered significant efforts to recruit and
retain nurses.
5. That there is not a
strike or lockout at the facility, that the employment of H-1C nurses is not
intended or designed to influence an election for a union representative at the
facility and that the facility did not lay off and will not lay off an RN
within the 90 day period and 90 day period after the date of filing an H-1C
petition.
6. That the employer will notify other workers and give a copy of the
attestation to every nurse employed at the facility within 30 days of filing.
E-mail attachments are acceptable.
7. That no more than 33% of the nurses employed by the facility will be H-1C nonimmigrants.
8. That the facility will not authorize H-1C nonimmigrants
to work at a worksite not under its control and will not transfer an H-1C nurse
from one worksite to another.
The paperwork must also be accompanied by a filing fee. After the attestation
is approved by the Labor Department and used in support of an H-1C petition
approved by the
USCIS, the employer is required to send a copy of the H-1C petition and USCIS approval to the Labor Department. Also, as noted above, the employer must create a public access file that includes the attestation and its supporting documentation. The file must be produced for any interested party within 72 hours upon written or oral request.