Mid-Atlantic Health Law TOPICS

A serious shortage of professional nurses in the U.S. has forced many health care facilities to consider foreign workers to meet their staffing needs. With careful planning and a clear understanding of the requirements of the immigration programs available, recruitment of foreign nurses may be a partial solution to staffing needs.

There are two broad categories in which foreign nurses may enter the U.S. The first category is the "immigrant" category, in which nurses enter the U.S. as a permanent resident or "green card" holder. The second category is the "nonimmigrant" category, in which nurses enter the U.S. to work for a temporary period, but this option is extremely limited. Therefore, most employers turn to the immigrant category to obtain qualified workers to fill their staffing needs.

A. The "Immigrant" Category

Securing permanent residence or "immigrant" status for employees normally requires an employer to document that the occupation in which the foreign worker will be employed is a "shortage occupation." Employer petitions for registered nurses, however, can bypass this step because nurses have been "pre-certified" by the Department of Labor. This means that employers seeking to employ nurses can go straight to the Immigration and Naturalization Service (INS) and file a petition requesting approval for the employee to become a permanent resident.

In these cases, the employer must submit documentation that the nurse either has a full and unrestricted license in the state of intended employment or a foreign nursing license and a certification from the Commission on Graduates of Foreign Nursing Schools (CGFNS). After the INS approves the petition, the petition is sent to the U.S. Consulate in the nurse's home country where the nurse then applies for a visa to immigrate to the U.S. Currently, visas for nurses are immediately available in all countries. If the nurse is lawfully present in the U.S. when the petition is approved, he or she may then be eligible to secure permanent residence in the U.S. without the need to secure an immigrant visa from a U.S. Consulate. This determination, however, must be made on a case-by-case basis.

To secure an immigrant visa or permanent residence in the U.S., the nurse must be eligible for admission to the U.S. and must also present proof that he or she has a "Visa Screen Certificate" or Certified Statement issued by the International Commission on Health Care Professions (ICHP), which is part of the CGFNS. (Additional information on this certificate can be obtained from the ICHP website.)

This requirement is necessary even if the nurse was educated in the U.S. and holds full and unrestricted U.S. state licensure. Nurses should start the process of obtaining the necessary Visa Screen and/or CGFNS certifications as soon as he or she has been identified as a candidate for an immigrant visa.

Some employers turn to agencies for foreign nurses. In most cases, these agencies make representations to the U.S. Government about the employer. Since these representations can be the basis of an action by the Government or the prospective employee against the employer, the documents prepared by these agencies should be reviewed by the employer's counsel prior to the employer signing the documents.

B. The Nonimmigrant Categories

F-1-Student Status. Health care employers generally look first to U.S. educational institutions that offer nursing programs. Foreign-born individuals who come to the U.S. to study nursing are generally eligible for a year of "optional practical training" upon graduation, and may work during the validity of their employment authorization card. This employment authorization is not limited to any particular employer, and it eliminates the need for the employer to file any documents with the INS to seek permission to employ the nurse during the card's validity period.

TN. Another temporary option is employing Canadian nurses. Qualifying nurses who are Canadian citizens may apply for temporary employment authorization under Schedule 2 of the North American Free Trade Agreement (NAFTA) . To gain admission, the nurse may apply at a port-of-entry to the U.S., presenting evidence of a provincial license or a degree in nursing and an interim permit or license to practice in the state of intended employment. (This TN status may also be obtained in the U.S. by filing a petition at an INS Service Center, but an INS decision may take twelve or more weeks; while processing time at the border can be completed in less than an hour.) TN status may be obtained for up to one year and can be renewed indefinitely.

Employers should bear in mind, however, that the longer the employee is in the U.S. working in TN status, the more likely the person will encounter increasingly serious questions at the U.S. border about his or her intention to remain in the U.S. on a "temporary" basis, one of the key elements to qualifying for TN status. If the person is viewed by the INS as intending to live in the U.S. on a permanent basis, the INS will bar the person from reentering the U.S., unless and until the person has the necessary "immigrant" visa.

H-1B. Very few nurses will qualify for the H-1B visa, essentially because very few nursing positions require a bachelor's degree (or its equivalent) in nursing. An H-1B visa may, however, be a consideration for a position for which the employer always requires at minimum a Bachelor's degree or, preferably, an advanced nursing degree.

H-1C. The H-1C was added to the list of nonimmigrant visas available to nurses in 1999. Restrictions on its use, however, render it useless for most facilities. Only 500 H-1C visas are available each year to hospitals located in Health Professional Shortage Areas designated by the Department of Health and Human Services. The visas are further limited to 50 per state (with populations of 9 million or more) and 25 per state for smaller states. There are also numerous attestations required of each employer that render this visa even more unattractive.

Although today's nursing shortage may cry out for various long term solutions, recruiting foreign nurses may be the best short term solution for many hospitals.