Visa Retrogression Causes Crisis in Foreign Nurse Staffing Field

The so-called nursing “train wreck” that many immigration experts have been predicting for several years has now occurred and the vast majority of nurses who were set to enter the US on visas in 2005 now find themselves in a wait that may stretch out for several years.

Nurses are generally only able to come to the US on green cards since most are ineligible for non-immigrant visas (though a prominent exception exists for nurses from Canada and Mexico under NAFTA). For several years, that has meant one to two year waits for nurses and their employers.

Just as the USCIS and State Department were making strides in more efficiently processing nurse cases, the State Department revealed news that threatens to stretch cases out by an additional one to three years. Nurses enter the US in the EB-3 employment-based immigration visa category. That category is also used by other skilled and professional workers. The Immigration and Nationality Act sets an overall annual limit of 140,000 visas in the category and also has a complicated formula imposing per country limits in the category. For more than five years, the limits have been nothing more than theoretical and the EB-3 category has remained current for all nationalities.

That all came to an end in January 2005. Beginning that month, the State Department rolled back processing dates for all EB-3 applicants from the Philippines, China and India. The vast majority of nurses entering the US from outside North America are coming from the Philippines and India. Only applicants with filing dates earlier than 2002 would be considered. Because most pending nurse applications were filed in 2003 and 2004, this news effectively meant the end of nursing immigration for at least one to two years.

There are a number of factors causing the retrogression of priority dates. First, increases in the H-1B non-immigrant visa cap in the late 1990s and early part of this decade without a corresponding increase in green card availability has dramatically increased the number of people applying in the EB-3 category each year. Second, a provision in AC21, the major immigration act passed in 2000, that allowed unused employment-based green card numbers for the fiscal years 1999 and 2000 to be carried forward has run its course. Those bonus visas that have been artificially keeping the EB-3 numbers current for the last few years are now exhausted. Third, the US economy is growing steadily and employers have accelerated hiring. That is increasing demand for EB-3s. Finally, the Philippines, India and China represent nearly half the world’s population, yet they are not proportionately allocated visa slots. In other words, nationals of countries like Belgium and Ecuador get as many visas as countries multiple times their population size.

For Americans, the news could not come at a worse time. The health care industry is experiencing a critical shortage of nurses. Many estimate that the shortage will grow to as large as a million nurses by the end of the next decade. Employers were assuming the entry of 20,000 foreign nurses in 2005 and their failure to show up as planned is expected to have a ripple effect not only with employers expecting to hire the nurses, but also for all other employers already contending with an insanely tight marketplace.

The American Hospital Association has been leading a coalition of health care groups urging Congress to modify the law to allow access to unused EB-3 numbers for the years from 2000 to 2004. Experts believe about 140,000 of these visas remain available. Two proposals are being considered – one fix that would be available to all people in the EB-3 category and one just for nurses and physical therapists. The AHA proposed the broad fix, but some Congressional supporters of nursing immigration have been promoting the narrower measure. Rep. Tom Lantos, D-CA, recently introduced a bill, H.R. 139, which proposes the “broad fix” supported by AHA. Nurse immigration advocates, however, are pessimistic that the measure will pass early enough this year to be able to make a major impact.

Instead, the coalition has pushed for a similar reclamation measure to be included on the $80 billion defense/tsunami appropriations bill currently working its way through Congress. While non-spending measures are typically excluded from appropriations bills, there have been many exceptions to this general rule over the years. On the House side, the controversial REAL ID bill has already been included. That bill makes asylum harder to obtain and also imposes new restrictions on the granting of driver’s licenses to immigrants.

Senate leaders have been trying to keep out all immigration measures in their version of the appropriations bill, arguing that a “clean” bill will pass much more quickly. Majority Leader Frist has promised that immigration measures will be taken up later this year. However, members of his own party have balked at this promise noting that virtually no immigration legislation has been passed since 9/11. Senator Larry Craig insisted on the introduction of an agricultural worker amendment that is considered to have wide support in the Senate. Another bipartisan measure that has been pushed is the increase of H-2B visas which are widely used in the hospitality industry.

Senate leaders have apparently decided to allow at least a handful of immigration amendments to be considered. What is not yet known is whether an amendment to be introduced by Senators Kay Bailey Hutchison (R-TX) and Charles Schumer (D-NY) that would implement the nurse specific EB-3 borrowing proposal will be considered.

After the Senate passes its version of the spending bill, members of both Houses will meet in a conference committee to reconcile the differing language in the two Houses versions of the spending bill. The nursing fix is seen as having broad bipartisan support and proponents of the plan believe that if the measure is permitted to be considered, it will be included in the final version of the bill sent to President Bush.

[Siskind Susser will send readers a special alert when we learn of any major developments relating to this legislation]

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