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Immigration
Opportunities for Nurses
By
James A. Bach, Esq.
Copyright 2001 - 2009
The U.S. currently faces a severe shortage of nurses,
caused by an aging population and rapid attrition within the profession.
The oldest baby boomers are now 63 and entering the age that requires
increasing medical services. More
than half of the nurses who responded to a recent survey said that they planned
to quit their jobs within the next year.
According to the U.S. Department of Labor, the United
States employed about 2.5 million nurses in 2008.
The Department of Labor predicts that 600,000 new jobs will be generated
over the next decade, more than almost all other occupations.
Employers are addressing the shortage of registered
nurses by tapping the huge pool of highly trained nurses from overseas.
Although Congress is working on additional solutions to streamline the
immigration of foreign nurses, valuable options already exist for hiring them.
Permanent Residence (“Green Card”) Status
The Department of Labor has recognized that there is a
national shortage of registered nurses and has made nurses exempt from “labor
certification,” the lengthy, expensive and cumbersome process that must
precede most applications for permanent residence based on employment.
Instead, an employer can sponsor a foreign nurse simply by demonstrating:
·
The nurse
has a nursing diploma or degree, and is registered as a nurse in a foreign
country.
·
The nurse
has obtained a U.S. nursing license OR
has passed an examination given by the Commission on Graduates of Foreign
Nursing Schools.
·
A nursing
job is offered at a normal salary (at least the weighted average of salaries
paid to other nurses in the area).
·
The
relevant union is notified.
From the employer’s perspective, the entire process
is extremely easy, with a minimum of paperwork and administrative burden.
That is because there are no complex eligibility requirements:
essentially the immigrant must be a registered nurse and a nursing job must be
available. The role of the employer essentially involves signing a petition that
confirms that it has an opening for a nurse at an average salary.
For the nurse there are significant and complex hurdles, but the employer
does not need to be involved with those, and the nurse is motivated and
compensated for the red tape by the opportunity to immigrate to the United
States.
The process of immigrating involves two steps.
The first is the Immigrant Visa Petition submitted by the employer to the
Immigration and Naturalization Service (INS) to demonstrate compliance with the
four requirements listed above. The
second step is the application for the green card by the nurse through the U.S.
Embassy or Consulate in the nurse’s home country (unless the nurse is already
in the U.S., in which case the application can be submitted to the INS).
The entire process may take approximately one year.
Currently it takes the INS three to five months to approve the Immigrant
Visa Petition in most areas of the country.
The approved petition is then sent to the U.S. Embassy or Consulate
abroad where the nurse applies for the Immigrant Visa.
The processing time at the embassy or consulate varies from country to
country, but a normal backlog is about six months.
During this process, the nurse must also complete the
“Visa Screen,” which is handled
by ICHP, a subsidiary of CGFNS. The
Visa Screen process includes an educational review, licensure review, a
predictive examination for nurses,
and an English language skills assessment.
This last requirement involves passing EITHER 1) all three sections of
the Test of English as a Foreign Language (TOEFL) (which includes Test of Spoken
English [TSE] and Test of Written English [TWE]),
OR 2) the Michigan English Language Assessment Battery (MELAB), Parts 1-4.
No English exam is necessary for nurses who studied in Australia, Canada
(except Quebec), Ireland, New Zealand, the United Kingdom or the United States.
Once these requirements are satisfied applicants
receive a Visa Screen Certificate that can be presented to a consular office at
the time of their interview at the U.S. Embassy or Consulate.
For those already in the United States, the Visa Screen Certificate is
submitted to the INS with the adjustment of status (green card) application.
Although simple and relatively burden-free for the
employer, the real drawback to sponsoring a nurse for an immigrant visa is the
government processing time of approximately one year. The sponsorship therefore works only as part of a long-term
staffing strategy to anticipate next year’s demand today.
One issue faced by employers is to ensure that the
sponsored nurse actually comes to work for the employer after immigrating to the
U.S. and will stay with the employer long enough to make it all worthwhile.
This concern is typically resolved by
1)
continuing to recruit and communicate with the nurse until arrival in the
U.S., and
2)
signing a written agreement in which the nurse agrees to:
a)
give the employer the exclusive right to submit the Immigrant Visa
Petition, and
b)
work for the employer for one year after immigrating (or pay the
employer’s costs in an agreed-upon amount).
Parts of such agreements may not be enforceable in many
states, but the very act of making the agreement usually ensures that the nurse
will live up to the bargain and come to work as promised.
Temporary Working Visas
Unlike the immigrant visas, temporary working visas can
be obtained for foreign nurses in just a few weeks. The problem with temporary working visas is that only a
fraction of foreign nurses are qualified for them.
Most of the visas are reserved for highly educated nurses who are coming
to the U.S. to work as managers or in highly specialized positions, whereas the
bulk of the demand is for nurses who can provide basic nursing skills.
A.
H-1B Status
Professionals are eligible
for H-1B status if the offered position requires a Bachelor’s degree as the
minimum entry-level qualification for the job, and the candidate holds the
required degree, or equivalent education and experience.
H-1B status generally is not available to most nurses because the normal
minimum entry-level requirement for most nursing positions is less than a
Bachelor’s degree. If the offered
position requires a Bachelor’s degree, the following medical professionals may
be eligible:
·
Technologist, such as radiology technologists.
·
Head nurse or team leader.
·
Public health nurse, involved in training the public.
·
Home health nurse involved in coordinating health services and
training patients and family.
·
Clinical specialty nurses such as cardiac rehabilitation nurses,
gerontological nurses, and pain management specialists.
Petitions for H-1B visas for those coming to fill
these positions will still require careful documentation of the job requirements
and thorough research to establish that 1) a Bachelor’s degree or higher is
common to the industry, 2) the position is so complex or unique that it can be
performed only by an individual with a Bachelor’s degree, 3) a Bachelor’s
degree is required in parallel positions among similar organizations, and 4) all
similar employees working for the petitioner have at least a Bachelor’s degree
or equivalent education and experience.
B.
H-1C Status
The "Nursing Relief for Disadvantaged Areas Act
of 1999" created a new visa category, H-1C, to enable foreign nurses to
work in areas designated as "health professional shortage areas" by
the Department of Health and Human Services.
500 nurses per year may be admitted for up to three years in H-1C status.
This law will sunset in 2003.
The DOL has identified the following 14 hospitals as
currently eligible to participate in the H-1C program:
Beaumont Regional Medical Center, Beaumont, TX
Beverly Hospital, Montebello, CA
Doctors Medical Center, Modesto, CA
Elisabeth General Medical Center, Elisabeth, NJ
Fairview Park Hospital, Dublin, GA
Lutheran Medical Center, St. Louis, MO
McAllen Medical Center, McAllen, TX
Mercy Medical Center, Baltimore, MD
Mercy Regional Medical Center, Laredo, TX
Peninsula Hospital Center, Far Rockaway, NY
Southeastern Regional Medical Center, Lumberton, NC
Southwest General Hospital, San Antonio, TX
St. Bernard Hospital, Chicago, IL
Valley Baptist Medical Center, Harlingen, TX
This visa category has had little impact on reducing
the nationwide nursing shortage because of the limited number of qualifying
hospitals.
C.
TN Status
Under the North American Free Trade Agreement
(NAFTA),
Canadian and Mexican citizens may enter the United States in TN nonimmigrant
status if they have a permanent or temporary license to practice in the state of
intended employment. Canadians may
enter the U.S. immediately upon showing their credentials and offer of
employment at the border or international airport in Canada.
For Mexicans, however, the process is similar to an H-1B petition: the
employer must first submit a petition to the INS, and the employee must obtain
the visa at a U.S. Embassy or Consulate.
Conclusion
There is a nationwide shortage of nurses, which
is expected to grow over the next decade. Congress
has yet to pass a law to enable most registered nurses to come quickly to the
United States to work. The
temporary visas are limited, and the immigrant visas require fairly lengthy
processing times. However, with
careful planning and recruitment, any registered nurse can be brought to
America, provided the employer is willing to wait a year before the employment
begins.
Footnotes
melabelium@umich.edu.
MELAB Testing, 3020 North University Building, University
of Michigan, Ann Arbor, MI 48109-1057. Telephone (734)
763-3452 or (734) 764-2416. FAX: (734) 763-0369.
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