Employing Foreign Registered Nurses

Temporary and Permanent Visa Options
by
Jay C. Ruby
Immigration Attorney
Ogletree Deakins

The Current Nursing Shortage in the U.S.

The current shortage of qualified Registered Nurses in the United States has caused many health care providers to recruit foreign Registered Nurses.  Fortunately, U.S. Immigration laws provide several employment visa options for U.S. employers seeking to hire foreign Registered Nurses.

The nursing shortage is not a new problem.  From the late 1980’s through the mid-1990’s many health care providers had difficulty recruiting sufficient numbers of U.S. Registered Nurses and hired tens of thousands of foreign Registered Nurses.   Prior to 1997, U.S. health care providers could employ foreign Registered Nurses in a temporary H-1A visa classification.  Congress’ termination of the H-1A program in 1997 leaves health care providers facing the current nurse shortage with one less option.  However, discussed infra, there is pending legislation that may open up eligibility for the currently very narrow H-1C Registered Nurse classification.  If the legislation is passed, 195, 000 H-1C visas would become available to virtually all U.S. health care providers.

Overall there are two main options for employing foreign Registered Nurses in the U.S:

  1. temporary work visas; and

  2. permanent work visas (green cards).

 

 

TEMPORARY WORK VISAS FOR REGISTERED NURSES

With the demise of the H-1A program in 1997, most Registered Nurses do not qualify for temporary visas that authorize U.S. employment.  Thus, most foreign Registered Nurses (who are not Canadian or Mexican) must obtain permanent work visas before they may be employed in the U.S. Canadian and Mexican Registered Nurses can be employed in the U.S. under the NAFTA treaty.

  • TN Status for Canadian Registered Nurses

Canadian Registered Nurses can work in the U.S. in TN status pursuant to NAFTA.  Registered Nurses are one of the many professional occupations listed on the NAFTA Annex.

TN status is valid for one year and may be extended each year.  The TN status can be obtained upon the day of entry into the U.S.  The TN Nurse’s spouse and children may reside in the U.S. in TD status.  Of course, the TN Registered Nurse must also meet all state licensure requirements.
  • TN Status for Mexican Registered Nurses

Mexican Registered Nurses can work in the U.S. in TN status pursuant to NAFTA.  The TN status is valid for one year and may be extended each year.  The Mexican Registered Nurse’s dependents may reside in the U.S. in TD status.

The procedure for obtaining the Mexican TN status differs from the Canadian TN status.  Employers must offer Mexican TN Registered Nurses the higher of the “prevailing wage” or actual wage.  Also, the U.S. employer must first petition theINS Service Center and obtain TN approval before the Mexican Registered Nurse can obtain the required TN visa in the passport.  Processing time can range from 15 to 90 days. Canadians are visa-waived and do not have such requirements.

  • H-1B Status for Nurses in Managerial Positions

Most foreign Registered Nurses do not qualify for a professional H-1B status because few Registered Nursing positions truly require a bachelor’s degree (a 2-year associate diploma will usually qualify one for licensure).  However, there are some managerial and supervisory Registered Nurse positions that may legitimately require a bachelor’s degree or its equivalent.  In such cases, the Registered Nurse can qualify for the H-1B status.  The H-1B status authorizes a total stay of 6 years and is issued in increments of 3 years.  INS processing time is generally 15 to 120 days.

  • H-1C Status:  Facilities in Medically Underserved Areas (MUAs)
The H-1C classification was created in 1999 to permit health care facilities in certain rural and inner-city areas to employ a limited number of foreign Registered Nurses.  Only 500 H-1C visas may be approved each year.  To date, the U.S. Department of Labor has only identified 14 qualifying hospitals.  Moreover, the H-1C program limits the number of H-1C visas to 50 per state (or less depending upon the state’s population).  H-1C visas are valid for 3 years.  INS processing time is generally 15 to 120 days.
  • Pending Legislation To Open Up 195,000 H-1Cs To Most Facilities
In July and August 2001, two separate pieces of legislation were introduced to “modify the requirements” of the H-1C classification.  Senators Sam Brownback (R-KS), Bob Graham (D-FL) and Jesse Helms (R-NC) co-authored the Senate bill.  Representative Sheila Jackson Lee (D-TX) authored the House bill.   The House bill was referred to the Subcommittee on Immigration and Claims in September. If passed, the legislation will increase the number of qualifying health care facilities and increase the annual cap of H-1C visas to 195,000.  The expansion of the H-1C program would certainly provide added relief to the current nursing shortage.
 

 

PERMANENT VISAS (GREEN CARDS) FOR REGISTERED NURSES:  A 2-Step Process

Registered Nurses may obtain employment-based immigrant visas (lawful permanent resident status) through a 2-step process that takes approximately 6-12 months to complete. Most foreign professionals must undergo a 3-step process that includes an arcane and time-consuming “labor certification” process through the U.S. Department of Labor. However, Registered Nurses are “Schedule A” employees and are pre-approved for labor certification by the U.S. Department of Labor. Since the labor certification process is bypassed, Step One of the immigrant visa process is the filing of the immigrant visa petition with the INS Service Center.

  • Step One: Filing the Immigrant Visa Petition (Form I-140 with the INS)

The immigrant visa process for Professional Registered Nurses commences with the preparation and filing of the Form I-140 immigrant visa petition. We will prepare the immigrant petition for your signature. The petition contains information about the sponsoring employer and the foreign professional nurse.

A separate I-140 immigrant visa petition must be filed for each professional nurse. The INS filing fee for each application is $115.00.  In addition, U.S. Department of Labor Forms ETA 750 Parts A and B (in duplicate original) together with a company support letter, a posting notice of the job offer (posted on site for 10 working days) and the Professional Registered Nurse’s credentialing documentation must accompany the form I-140 petition. The Form ETA 750 Part A are signed by the employer and the Forms ETA 750 Part B are signed by the selected nurse.

The INS Service Center processing time for I-140 Immigrant Visa Petitions is a range between two to seven months.  The INS Service Centers, when operating efficiently, process I-140 petitions for Registered Nurses in two to four months.

Upon approval of immigrant visa petition, the INS Service Center will forward the file to the National Visa Center for further processing at the U.S. Embassy or Consulate in the foreign nurse’s home country or country of residence.

  • Step Two: Visa Applications at the U.S. Embassy or Consulate

Upon INS approval of the I-140 immigrant visa petition, the file is forwarded to the National Visa Center (NVC) to initiate “consular processing”. The NVC is a clearinghouse and serves as the liaison between the INS and Department of State (U.S. Embassy or Consulate).  In some cases, Registered Nurses currently in the U.S. are eligible to “adjust status” and complete the green card process inside the U.S.   Many Canadian and Mexican Registered Nurses elect to adjust status.

It usually takes a few weeks (three to six) for the INS to forward the case to the NVC. Once the NVC receives the approved I-140 petition from the INS, it issues “Packet 3", a group of State Department forms including the visa application (Form DS-230, Part I) and a checklist (Form DS-169) of documents the Professional Nurse will need to present to the consular officer at the required Embassy interview.

The Form DS-230, Part I should be completed immediately and forwarded to the U.S. Embassy or Consulate. Once the Professional Nurse has obtained all of the necessary documents (see below) listed on the Form DS-169 checklist, the checklist must then be mailed to the U.S. Embassy or Consulate. Upon receipt of the Form DS-230, Part I and the checklist, the Embassy or Consulate will then issue “Packet 4" including the scheduled interview appointment letter.

“Packet 4" contains the visa appointment letter (time/date of interview), Form DS-230, Part II, IRS Form 9003, the medical examination form and the affidavit of support form (Form I-864). The Nurse must appear at the designated physician’s office for the required medical examination. The Nurse should present his or her vaccination records (if available). Upon completion of the examination, the physician will seal the results in an envelope. With respect to the I-864 affidavit of support, the Nurse must complete one for his or her accompanying immediate family members (spouse and children under 21). The affidavit is submitted as evidence that the accompanying family members will have adequate means and support.

At the required Embassy interview, the Nurse (and accompanying immediate family members) will present their Forms DS-230, Part II, completed medical examinations, the visa processing fees (approximately $400 per person), employment support letters and the required documentation (e.g. police clearance, RN licenses and certifications) listed below. If the consular officer is satisfied that the Nurse meets the qualifications for the immigrant visa, an immigrant visa stamp will be placed in the Nurse’s passport at the close of the interview. The accompanying family members will also be issued their visa stamps. Accompanying family members may opt to apply later in a “following to join” case.

 

 

DOCUMENTS REQUIRED AT THE EMBASSY INTERVIEW

  • Visa Screen Certificate
All foreign health care workers (including registered nurses) are required to obtain a Visa Screen certificate from an approved credentialing agency. The approved agency for Professional Nurses is the International Commission on Health Care Professionals (ICHP), a division of the Commission on Graduates of Foreign Nursing Schools (CGFNS).  The Visa Screen certificate verifies that the foreign Professional Nurse’s education, training, license and experience is comparable to a U.S. Professional Nurse and that the foreign Professional Nurse is fluent in English and has the appropriate license. A copy of the CGFNS/ ICHP Examination Schedule (including overseas exam locations) is attached. One of the requirements for obtaining the Visa Screen certificate is passage of the Test of English as a Foreign Language (TOEFL) or the Michigan English Language Assessment Battery (MELAB). The phone numbers and addresses of both agencies were provided in the materials previously furnished.
  • Nursing License

The foreign Registered Nurse must be registered in the country where he or she received nursing education. Proof of the foreign Registered Nurse’s licensure/registration must be submitted with the I-140 immigrant visa petition. For example, the Philippines now requires a full, four-year university degree (Bachelor of Science).

With respect to U.S. licensure (state of intended employment), temporary or interim licenses may be obtained once the foreign Registered Nurse enters the U.S. and registers to take the National Council Licensing Exam (NCLEX).  Some foreign Registered Nurses enter the U.S. on visitor visas (B-1/B-2) to take the NCLEX and then return home to continue with the immigrant visa processing.  Many Registered Nurses in the Philippines take the NCLEX exam in Guam or Saipan.  The Registered Nurse must be ready to file the NCLEX application upon entry into the U.S. The foreign Registered Nurse will then take the NCLEX within 30 days of filing the application. Each state has its own requirements for obtaining temporary and permanent licenses, some states having additional requirements. 
  • Police Certificates

Each foreign Professional Nurse (and accompanying adult family member) must obtain a police certificate from each country he or she has resided since becoming age 16. Police certificates are not available in some countries.

Police certificates can take several months to obtain. We can assist you and your selected Professional Nurses by providing information about police certificate procedures in the countries of interest.