REGISTERED NURSES & OTHER HEALTH CARE PROFESSIONALS

I. TEMPORARY VISA OPTIONS

• H-1B Specialty Occupation Visa
• H-1C Registered Nurses In Medically Underserved Areas
• TN-1 Trade NAFTA Work Permits

II. IMMIGRANT VISA OPTIONS

• Filing the Form I-140
• The VisaScreen Certificate
• Obtaining the Immigrant Visa
• STATE LICENSING
• PERM

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In order to work in the United States , a foreign born Registered Nurse has two general types of immigration options: obtaining a temporary visa (non-immigrant visa) or petitioning for permanent residence (immigrant visa).

I. TEMPORARY VISA OPTIONS

The following temporary work visas have very limited use for professional nurses, mainly because most employers only require a two year degree rather than four-year bachelor’s degree (H-1B) or because the employing facility is required to meet burdensome conditions (H-1C). A VisaScreen is required for persons employed as registered nurses on temporary visas.

H-1 B Specialty Occupation Visa

The H-1B visa is available to those aliens coming temporarily to the US to perform a specialty occupation. In order to qualify as a specialty occupation, the alien must have as a minimum a US bachelor's degree or its equivalent . The Immigration Act of 1990 provides that only those occupations for which a four-year university degree was a prerequisite for employment could qualify for “H-1B” status. However, since most hospitals do not require a B.N.S. degree, but a two-year associate degree, the H-1B visa option for nurses is considered an ineffective immigration alternative. Nonetheless, some registered nurses may qualify under H-1B if s/he can establish that the position is a specialty occupation and that s/he has a degree or equivalent pursuant to H-1B regulations. Passing the nurses exam (CGFNS) and state licensure are required to obtain H-1B status. Most approved H-1B visas for nurses involve working in specialized positions which include supervisory or management positions, and specialties such as surgical nursing, pediatric nursing, nurse-anesthetist and nurse-practitioners.

H-1C Registered Nurses In Medically Underserved Areas

In 1999, the Nursing Relief for Disadvantage Areas Act (NRDA) created the H-1C visa permitting foreign trained nurses to work temporarily at hospitals in Health Professional Shortage Areas (HPSAs). The maximum numbers of H-1C visas issued is limited to 500 ( with no more than 25 allowed to work in a single state) for a maximum admission period of 3 years. The facilities interested in sponsoring nurses for H-1C visas must submit documentation containing a number of attestations regarding the employment of H-1C nurses by filing form ETA 9081 with the Department of Labor. In order to obtain the attestation, the hospital must fulfill a number of conditions: be located in a federally-designated Health Professional Shortage Area as of March 30, 1997 , have a minimum of 190 acute care beds, have a qualifying percentage of Medicare and Medicaid patients, etc.

To implement the NRDA, the Department of Labor released regulations for the H-1C program on August 22, 2000 . This regulation listed only 14 hospitals in the U.S. which were determined to qualify for the H-1C visas stringent requirements. These facilities are:

1. Beaumont Regional Medical Center , Beaumont , TX
2. Beverly Hospital , Montebello , CA
3. Doctors Medical Center , Modesto , CA
4. Elizabeth General Medical Center , Elizabeth , NJ
5. Fairview Park Hospital , Dublin , GA
6. Lutheran Medical Center , St. Louis , MO
7. McAllen Medical Center , McAllen , TX
8. Mercy Medical Center , Baltimore , MD
9. Mercy Regional Medical Center , Laredo , TX
10. Peninsula Hospital Center , Far Rockaway, NY
11. Southeastern Regional Medical Center , Lumberton , NC
12. Southwest General Hospital , San Antonio , TX
13. St. Bernard Hospital , Chicago , IL
14. Valley Baptist Medical Center , Harlingen , TX

The following are the most important eligibility requirements for a foreign trained nurse who wishes to obtain an H-1C visa:

• Nurse applicant must pass the examination is that offered by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or CGFNS exam.
• Obtain temporary license upon issuance of the H-1C and admission to the U.S.
• S/he must thereafter obtain a full and unrestricted license if it is required by the State of intended employment.

TN-1 Trade NAFTA Work Permits

Under the North American Free Trade Agreement (NAFTA), Canadian and Mexican citizens can enter the U.S. as nurses under TN category. This visa category is similar to the H-1B except there is no 6 years statutory limitation. A TN visa holder is required to demonstrate appropriate credentials evidencing status as a professional. The procedure to obtain a TN visa is considerably more difficult for Mexican citizens than it is to Canadians.

Canadian nurses my work in the U.S. as TNs with:

• An offer of employment from a U.S. employer for a period not to exceed one-year;
• Canadian license to practice and in the state of intended employment;
• Proof of Canadian citizenship; and
• Payment of small fee to enter the U.S.

The procedure for Mexican nurses is more complex. The employer must file a Labor Condition Application (LCA) to the Department of Labor and submit a I-129 petition to the BCIS Nebraska Service Center . Once the petition is approved, the Mexican nurse may obtain a TN visa the U.S. Consulate in Mexico .

A TN nurse may not have an immigrant intent, that is, the intention of residing in the U.S. on a permanent basis. Upon admission, the TN professional is granted an initial stay of one year and thereafter may seek extensions of stay in one-year increments. There is currently no limit on the number of extensions that may be granted.

II. IMMIGRANT VISA OPTIONS

The immigrant visa or petition for permanent resident is the best option for foreign professional nurses intending to work in the United States . Generally, employment based immigrant visa petitions involve the following three stages:

a) Labor Certification application with the Department of Labor (certifies that there are no U.S. workers able, willing, qualified and available to fill the position);

b) filing and approval of an Alien Worker Petition; and

c) application for permanent residence in the U.S. or immigrant visa at the U.S. consulate abroad.

In 1996, professional nurses and physical therapists were included on a list of pre-certified occupations for which a labor shortage was recognized and included on Schedule A labor certifications cases. The advantage is that being nursing a pre-certified occupation, the most time consuming phase of the employment immigration process is omitted. Note that Schedule A recognizes only “professional nurses”, excluding of the pre-certification benefit nurse assistants, licensed practical nurses and other nurses aides.

The PERM Program modifies the criteria by which a registered nurse can qualify for Schedule A. Substantive requirements remain largely unchanged, though professional nurses may now demonstrate eligibility though passage of the National Council Licensure Examination for Registered Nurses (NCLEX-RN). Alternatively, eligibility may continue to be demonstrated by a full and unrestricted (permanent) license to practice nursing in the state of intended employment or a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS). The supplementary material included with the final rule clarifies that (1) a state license must be permanent; (2) passage of the CGFNS skills test without the certificate will not suffice in terms of allowing for eligibility; and (3) a prevailing wage determination for professional nurses will be required.

Filing the Form I-140

The immigration process initiates with the filing of an Immigrant Visa Petition (Form I-140) and supporting documents to the BCIS Service Center having jurisdiction over the place of intended employment.

Supporting documentation that must accompany Form I-140 includes the following:

• ETA Form 9089, in duplicate;
• A posted notice of the job opening which includes job description, work hours and rate of pay. Notice must have been posted on worksite for at least 10 business days 20 C.F.R. section 656.20(g)(i);
• Evidence of petitioning employer ability to pay salary offered;
• Prevailing wage determination for professional nurses in the area of intended employment;
• Nursing diploma or degree;
• Nursing license from country were degree was obtained;
• Permanent, full and unrestricted nursing license of the State of intended employment and/or certification from the Commission on Graduate Foreign Nursing Schools (CGFNS); or evidence that s/he has passed the NCLEX-RN exam but cannot obtain a license for lack of social security number.

The VisaScreen Certificate

The Immigration and Nationality Act section 212(a)(5)(c) states that uncertified health care workers are inadmissible in the United States . These workers may gain admission with the issuance of a VisaScreen Certificate . The VisaScreen is a screening program administered by the International Commission on Healthcare Professions (ICHP), a division of the CGFNS. Issuance of the VisaScreen verifies that the nurse has demonstrated that:

• Her education, training and license in her country are equivalent to that required for a U.S. health care worker,
• Has level of competence in written and oral English to be appropriate to practice the profession. Nurse must have passing scores on written and oral tests administered by either the TOEFL (Test of English as Foreign Language), the MELAB (Michigan English Language Assessment Battery), the IELTS (International English Language Testing Service) and the TOECI (Test of English in International Communications).
• Has passed either the CGFNS exam or the NCLEX-RN exam.

A new immigration law development is that completion of the VisaScreen Certificate is not required for the filing of Form I-140; for this phase, they must have CGFNS certificate or passage of the NCLEX-RN exam. Foreign Nurses educated in an English-speaking country (U.S., Canada –except Quebec-, Australia, New Zealand, U.K. or Ireland) are exempt from these tests, but not the Visa Screen. Also, a foreign nurse must obtain a VisaScreen certificate even if s/he graduated from an American nursing school. For a complete list of VisaScreen requirements and English language passing scores please click here.

Under the Nursing Relief for Disadvantage Areas Act, the CGFNS also issues a different document called Certified Statement in lieu of VisaScreen Certificate if: 1) nurse has valid unrestricted license as nurse in State of intended employment and the State has verified that foreign licenses are authentic and unencumbered; 2) nurse has passed the NCLEX-RN exam, and 3) nurse is a graduate of an English language nursing program in a country that is designated by the CGFNS and that is operation on of before Nov. 12, 1999 or has been approved by unanimous agreement by the CGFNS. The nurse must still complete the VisaScreen application and pay the fee.

NCLEX officials have announced that starting 2004, the NCLEX-RN will be offered abroad. Currently, this exam is offered in the U.S. , Guam , Saipan , the Virgin Islands , Puerto Rico and American Samoa . For more information about taking the NCLEX-RN please visit the National Council of State Boards of Nursing or click here.

Obtaining the Immigrant Visa

Upon approval of Form I-140, the foreign nurse can apply for adjustment of status to permanent residence (if s/he is present in the U.S. ) or obtain an immigrant visa at the U.S. Consulate of her home country. Note that Canadian TN visa holders are not exempt from the provision of dual intent (available for H and L visa holders) and should not leave the U.S. after the I-140 petition has been filed before first obtaining advance parole.

STATE LICENSING

Each state nurse licensing board has slightly different licensing requirements. The National Council of State Boards of Nursing website contains contact information for each state.

CONCLUSION

There is a recognized growing shortage of nurses in the United States , which is anticipated to reach critical proportions by the year 2010. The most important factors contributing to this shortage include:

• Aging of the general population increases demand for nursing care, and
• Inadequate supply of professionals choosing a nursing career.

Staffing foreign nurses will help reduce the nursing shortage in this country. With proper guidance and assistance, the U.S. employer will find that the benefits of hiring capable and competent foreign nurses by far exceeds the intricacies of the immigration process involved.