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Foreign Professional Nurses: Immigration Overview April 2003 There are a number of reasons which make immigration matters for foreign professional nurses somewhat complex and, at times, frustrating. First, while there is a widespread recognition of the severe and even growing shortage of professional nurses in the U.S. workforce, our immigration laws have not wholeheartedly endorsed or facilitated the immigration of fully qualified foreign nurses. Second, the immigration of foreign nurses is not solely a matter handled by federal immigration authorities; rather, both state licensure agencies and professional credentialing organizations play a significant role in the immigration process for foreign professional nurses. Third, there is significant public policy as well as legal interest in developing strict quality assurance standards for all foreign healthcare workers, including professional nurses. Fourth, the general softening of the U.S. economy has resulted in an increase in protections being afforded to U.S. workers that has some depressive impact on employment-based immigration. Even though nurses are in short supply, some of this retrenchment affects the immigration of foreign professional nurses. Fifth, in the aftermath of the September 11th tragedy, there are many new security precautions that have been instituted which too often complicate and delay the issuance of a visa. As a bottom-line conclusion, it is entirely possible for a fully qualified (to U.S. standards) foreign professional nurse to immigrate to the United States. A successful immigration case normally requires the cooperation and open communication of the nurse, the employing facility, the recruitment agency/organization, and immigration counsel. Above all, the single most important issue is to ensure that all parties – particularly the employing facility – understand the anticipated timelines in order to secure immigration status for a foreign professional nurse, and it is squarely up to immigration counsel to ensure that the expectations of the parties are being met and that the immigration visa is being obtained in a timely and predictable manner. THREE CARDINAL RULES In considering the recruitment of foreign professional nurses, there are three key considerations that essentially influence the time, outcome, and procedure required for a given immigration case: 1. Every foreign national requires an appropriate visa status as granted by the U.S. government in order both to live in the United States and to accept employment; 2. There are two basic types of immigration status: a) Permanent resident status: this enables a foreign national to live permanently in the United States and to engage in broad employment activity. On a day-to-day basis, permanent residents go about their lives in a manner similar to U.S. citizens. b) Temporary, nonimmigrant status: this enables a foreign national to live temporarily in the United States based upon periods of time specifically granted by the U.S. government. In addition, the activities of a nonimmigrant are limited and defined. For most employment-based nonimmigrant visa classifications, employment is strictly limited to the sponsoring employer and an alien is limited to work solely in the position that has been described and approved by the immigration authorities. 3. Physical location of the foreign professional nurse: a) If already in the United States, all the filings are made directly to the immigration authorities, which, in certain cases, makes the case much more direct and time efficient. b) If residing abroad, not only do filings need to be made to the immigration authorities, but the foreign professional nurse also needs to apply for a visa through a U.S. Consular Office in the Embassy, as well as to sit for certain required test credentials at foreign test sites. IMPACT AGENCIES/ORGANIZATIONS IN NURSE IMMIGRATION There are a number of federal as well as private agencies that directly impact on an immigration case for a foreign professional nurse. One essential challenge in handling immigration cases for foreign professional nurses is to consider the competing interests and responsibilities of these agencies. The following is a list of the central agencies that directly impact the immigration of any foreign professional nurse.The U.S. Citizenship and Immigration Service (USCIS). This Bureau is part of the Department of Homeland Security and is the lead federal agency for processing various immigration requests. This Bureau is charged with ensuring that requests for immigration benefits meet both substantive immigration legal provisions and procedural requirements. Formerly, this Bureau had been known as the Immigration and Naturalization Service. U.S. Department of State/Consulates. The U.S. Department of State and, more specifically, the Consulates located within U.S. Embassies abroad, are responsible for issuing visas to foreign nationals desiring to travel to the United States. In order to obtain a visa, a foreign national applicant needs to establish that the intended purpose of traveling to the United States matches activities authorized under our immigration laws. Commission on Graduates of Foreign Nursing Schools (CGFNS). This is a private, not-for-profit organization entrusted essentially with ensuring that nurses educated abroad are fully qualified to meet state licensure and other practice requirements in the United States. In discharging its mission, the CGFNS has been authorized to determine whether the education, experience, background, and overall capabilities of a foreign professional nurse are equivalent to U.S. professional nursing standards. Based upon this assessment, the CGFNS issues the CGFNS Certificate, and the CGFNS has also been authorized as the issuing agency of the VisaScreen. State Boards of Nursing. Each state has the right and obligation to protect the welfare of its residents, and nowhere is this commitment more firmly in evidence than in the licensure of healthcare workers. Each state not only develops appropriate licensure standards for nurses, but also has the right to develop specific professional standards for foreign professional nurses desiring to enter employment within the state. Although actual possession of a state nursing license is not technically required to obtain permanent residence, a state nursing license is absolutely required to practice in the profession. National Council of State Boards of Nursing. This organization provides overall clearing-house services to the individual State Boards of Nursing and it also administers the NCLEX, which is one of the main test pathways to state licensure. English Language Examination. As part of both the CGFNS certification process as well as the VisaScreen, a foreign professional nurse needs to establish competence in the English language. The current examinations that are recognized for fulfilling the English language requirement are the following: a) Test of English as a Foreign Language (TOEFL); b) International English Language Testing Service (IELTS); c) Test of English in International Communications (TOEIC). d) The Michigan English Language Assessment Battery/MELAB is a recognized equivalence examination, but the organization has withdrawn from administering its examination to nurses seeking CGFNS Certification. U.S. Department of Labor. In the immigration context, the Labor Department is charged with ensuring that U.S. workers are not harmed by the employment of foreign nationals. Given the widespread shortage of nurses in the United States, the Department of Labor has certified nurses as being in short supply which opens up some accelerated, streamlined immigration filing procedures for foreign professional nurses. However, the Department of Labor is still a “player” in nurse immigration, particularly given its role in ensuring that the employment of a foreign professional nurse takes place under acceptable wage and working conditions. IS A NURSE IMMIGRATION CASE A NURSE IMMIGRATION CASE? In handling an immigration case for a foreign professional nurse, the first question is usually the following: Does the case really need to be developed under the employment-based immigration provisions for foreign nurses, or is there an alternate, more efficient strategy available for the nurse’s immigration? In other words, given the licensing, credentialing, and testing requirements, is it possible to handle the immigration case of a foreign nurse as something other than under the immigration provisions for foreign nurses. For example, if the foreign nurse’s spouse has more favorable immigration options, it might be more efficient to qualify the spouse for permanent residence, which would thereby enable the foreign nurse to derivatively obtain permanent resident status. Or, if the foreign professional nurse is providing substantial teaching services as part of a teaching hospital’s training/educational curriculum, it might be highly appropriate to present the case by stressing the nurse’s pedagogical responsibilities and duties. Or, if the nurse is coming from a country experiencing civil war and/or domestic turmoil, there might be certain programs put in place by the U.S. government that would provide safe haven/employment authorization to foreign nationals from that country. None of the strategies obviate the need of a professional nurse to meet all state licensing requirements in order to practice in the profession. However, these strategies may provide a much more time-efficient, streamlined pathway for a foreign professional nurse to immigrate to the United States by circumventing the credentialing review processes as part of the immigration process. The important point, therefore, to note is that the parties should analyze a wide range of factors pertaining to the foreign professional nurse’s personal and professional background so as to develop the most time-efficient and appropriate immigration strategy. Having said that, the vast preponderance of foreign professional nurses in the United States immigrate based upon the sponsorship of their employers and, indeed, our immigration laws attempt to provide highly workable provisions on behalf of foreign professional nurses. Therefore, let us now turn to immigration provisions specifically applying to foreign professional nurses. PUTTING THE PIECES TOGETHER: PERMANENT RESIDENCE BASED ON NURSING JOBS 1. If the Nurse Lives Abroad If a nurse is residing abroad, he/she essentially needs to go through a five-step process in order to obtain permanent resident status based upon employment in the profession. Step 1: Personal/Professional BackgroundThe first step of the process is simply to gain the necessary education and training so as to not only meet appropriate professional standards in the United States, but also to qualify for immigration benefits. To this end, a foreign professional nurse needs to have completed the following in order to qualify for permanent residence based on employment: b) Hold a CGFNS Certificate; or c) Pass the NCLEX. Step 2: Get a Job In our immigration system, a foreign professional nurse cannot independently apply for permanent residence, rather, he/she needs to hold a job offer, and it then becomes the responsibility of the prospective U.S. employer to qualify (i.e., sponsor) a foreign professional nurse for permanent resident status. Basically, it can be said that our immigration laws do not specifically focus on the welfare of the individual foreign professional nurse; rather, our immigration laws are geared toward providing benefits to qualifying U.S. sponsors whose activities will benefit from the employment of a foreign professional. Therefore, it is the U.S. employer rather than the foreign national that takes the lead in the permanent residence process. Furthermore, our immigration laws require the existence of an employer-employee relationship (rather than an independent contractor situation), although there are certain special provisions pertaining to recruitment agencies whose business is to serve as a matchmaker between the healthcare facility and the foreign professional nurse. Step 3: Petitioning for Permanent Residence Once a foreign professional nurse has obtained both the necessary credentials and a job offer, the U.S. employer can then begin the immigration petition process. Most employment-based immigration cases first require the clearance of the U.S. Department of Labor so as to protect the rights and welfare of U.S. workers. However, given the widespread and growing shortage of nurses, the U.S. Department of Labor has pre-cleared nurses as being in short supply with the result that the U.S. employer can skip over any type of structured recruitment/advertising campaign. This is a very fortunate provision that shortens substantially a case for permanent residence for a foreign nurse by eliminating the affirmative clearance of an immigration case by the U.S. Department of Labor. Therefore, the nurse’s employer is able to file an Immigrant Visa Petition directly with the appropriate regional office of the Citizenship and Immigration Service (USCIS) under the Blanket Labor Certification Procedures. This Petition essentially needs to outline and describe the intended employment of the foreign professional nurse, establish the nurse’s fulfillment of the required credentialing obligations, and establish the facility's ability to pay the wages of the position. At present, processing rates vary among the various regional offices, but in general it is taking the USCIS anywhere from 4-8 months to approve this type of Petition. Step 4: The Nurse’s Application for Permanent Residence Once the USCIS has approved the Immigrant Visa Petition, the approval notice is then sent for processing to the U.S. Department of State. Ultimately, the foreign professional nurse will be scheduled for an immigrant visa interview at the U.S. Consulate in his/her home country. As of the date on which this memorandum is being written, there are fortunately no backlogs in our immigration quotas that would slow down the processing of this final clearance process. In general, it is currently taking roughly 5-8 months between the approval of the Petition by the USCIS and the scheduling of the final interview at the U.S. Consulate. When the foreign professional nurse appears for the final Consulate interview, he/she needs to present certain documentation in fulfillment of our immigration laws, including: Various personal biographical documents, including birth and marriage certificates; There are three important points to remember about the VisaScreen: 1. The foreign professional nurse needs to present the VisaScreen at the time of the final interview, rather than at the time that the case for permanent residence is commenced. 2. Unfortunately, the CGFNS is taking a very long time to issue the VisaScreen Certificate, so a foreign professional nurse is well advised to apply for the VisaScreen as soon as possible. 3. At present, the VisaScreen is required only as part of the permanent residence process. Conversely, the VisaScreen is not required when applying for a temporary, nonimmigrant visa, although it is widely anticipated that the VisaScreen requirement will soon be added as part of the temporary, nonimmigrant application process as well as for permanent residence. Step 5: Admission to the United States Once the foreign professional nurse has interviewed successfully and been issued an immigrant visa packet, he/she is at last ready to travel to the United States so as to take up the intended job offer as a permanent resident. The final step in this process, therefore, is to gain admittance to the United States as a permanent resident. Technically, the foreign professional nurse actually becomes a permanent resident of this country at the time he/she is admitted to the United States. This final clearance process is conducted by an Immigration Inspector who is an employee of the Department of Homeland Security. While this step of the process normally goes quite smoothly, the foreign national nevertheless needs to establish his/her intention of taking the job with the sponsoring employer as well as to establish that there are no disqualifying reasons (such as contagious disease, previous criminal behavior, etc.), which would bar the attainment of permanent residence. 2. If the Nurse Resides in the United States In many instances, a foreign nurse is physically resident in the United States. Perhaps the individual has been admitted previously in a temporary visa status, such as in student status; or as a dependent of another nonimmigrant; or as a visitor to sit for the nursing examinations. In many (but not all) instances, a foreign nurse already present in the United States can pursue permanent residence without leaving this country, which normally would result in certain time deficiencies from the process described directly above. The first three steps of the process described above apply fully to a foreign professional nurse who happens to be physically present in the United States. Specifically, the foreign professional nurse needs to meet certain educational, credentialing, and professional standards, and then needs to receive an offer of employment (steps 1-2, above). Once this has been done, the sponsoring employer needs to file the exact same Immigrant Visa Petition to the appropriate USCIS Regional Office (step 3, above). What is different, though, is that steps 4-5 of the process described above are radically transformed. Under a recently passed law known as the Concurrent Filing Rule, the foreign professional nurse can file with the USCIS his/her Application to Adjust to Permanent Resident Status at exactly the same time as the employer files the Immigrant Visa Petition. Therefore, whereas a nurse residing abroad needs to wait for the approval of the Petition in order to appear for an interview for permanent residence at the U.S. Consulate, a foreign professional nurse already in the U.S. can apply directly for the “green card” at the same time as the employer is filing its sponsorship material. The advantage of this Concurrent Filing Rule is to speed up considerably the time at which a foreign professional nurse could start his/her employment. At present, it is taking the USCIS anywhere from 12-24 months to process an adjustment application - i.e., to approve an application for permanent resident status. However, once a foreign professional nurse has filed his/her adjustment application, the USCIS is authorized to issue an Employment Authorization Document (EAD) as an interim benefit. Once a nurse holds an EAD, he/she can start to work. Normally, the USCIS will issue an EAD within roughly 60-120 days. If the employer's Immigrant Visa Petition is denied, the adjustment as well as any interim benefits (such as EAD) are also at that point terminated. However, assuming that the Petition is approved, this Concurrent Filing Rule provides a very time efficient procedure in order to commence the employment of a foreign professional nurse. In fact, whereas it takes a foreign professional nurse residing abroad roughly 12-24 months to gain the right to commence employment in the United States, if a foreign professional nurse is already physically residing in the United States, employment conceivably can start within 60-120 days of starting the immigration case. TEMPORARY NONIMMIGRANT VISA OPTIONS In contrast to the permanent residence process as described above, our immigration laws also contain provisions that enable foreign nationals to enter the United States on a temporary, nonimmigrant basis. As a general observation, many nurses do not qualify for temporary, nonimmigrant coverage which makes permanent residence their only option. But given that it is possible to obtain a temporary, nonimmigrant visa in a shorter time than is required for permanent residence, it is usually desirable to determine whether a nurse qualifies for a nonimmigrant visa. Therefore, this section reviews some of the more commonly encountered temporary, nonimmigrant visa classifications as they relate to foreign professional nurses. 1. H-1B Temporary Worker Provisions The H-1B Temporary Worker provisions are the most commonly utilized temporary, nonimmigrant classification covering the employment of foreign professionals in the United States. Before 1989, foreign professional nurses regularly entered the United States under H-1B visas. However, a change in the law specifically linked H-1B entitlement to having the position itself require a baccalaureate degree as an entry-level credential and, in so doing, nurses generally lost their entitlement to H-1B coverage. Given the fact that the baseline requirement in nursing is an Associate Degree, nurses generally no longer qualify for H-1B visas. As a result, this most time efficient, commonly utilized, and beneficial visa classification – the H-1B Temporary Worker provisions – are largely irrelevant to foreign professional nurses. However, in a recent directive, the federal government has specifically stated that a foreign professional nurse can indeed qualify for H-1B coverage under the following specific scenarios: a) If the position itself is for an “Advanced Practice Nurse”, namely:· Certified Nurse Specialist (CNS); b) If the position itself involves administrative, managerial, or pedagogical duties which demand possession of a Bachelor’s Degree; c) If the state of intended practice requires a Bachelor’s Degree in order to obtain a state nursing license. At present, only North Dakota has this stipulated requirement. 2. H-1C Shortage Situation In an essentially useless provision of our immigration laws, it is possible for up to 500 nurses/year to qualify for a temporary, nonimmigrant H-1C visa in order to work at qualifying facilities located in designated medically underserved areas. At present, there are 14 hospitals nationwide which have been certified for H-1C purposes. Therefore, not only is the H-1C quota allotment paltry, but the requirements that a facility needs to meet for H-1C purposes are highly restrictive, if not outright unreasonable. The H-1C program will expire on August 22, 2004. It should, though, be noted that the Congress has been currently considering proposals that would substantially liberalize the H-1C provisions and in so doing, make it vastly more feasible for nurses to enter this country under a temporary, nonimmigrant visa. At present, Rep. Sheila Lee (D-TX) has introduced the Rural and Urban Health Care Act of 2003, which builds off of existing H-1C concepts so as to substantially enlarge both the number of qualifying H-1C facilities and the H-1C quota allotment. To date, there have been no hearings on this legislation. 3. TN Nurses The TN provisions provide an opportunity for licensed professional nurses from Canada and Mexico to enter the United States for temporary periods of time, even if they do not possess a Bachelor's Degree in Nursing. A Canadian nurse can apply directly for TN entry at the Canadian-U.S. border post. As such, this is a remarkably direct application process since there is no pre-clearance of a sponsorship petition within the USCIS; rather, the decision on admission is made immediately on the spot. In order for a Canadian nurse to enter as a TN Professional, he/she needs to hold a nursing license in the state of intended employment, as well as meet certain other criteria, including a job offer as a nurse, proof of Canadian Citizenship (please note: Canadian permanent residents do not qualify) and possession of nonimmigrant intent. For Mexican nurses, the application process is a bit more time-consuming in that the employer first needs to file a petition to the USCIS Regional Office in Nebraska and then needs to make certain affirmative attestations regarding the wage and working conditions being offered to a Mexican nurse. Even so, it is normally possible to receive TN approval within a few weeks so as to enable a Mexican nurse to apply for a TN visa to the appropriate U.S. Consulate. 4. F-1 Student / F-1 Optional Practical Training Many foreign nurses enter the United States in order to take degree courses in the nursing profession. Most such nurses come to this country under an F-1 Student visa, which enables them to reside as a full-time student while making appropriate progress toward the completion of degree studies in nursing. Our immigration laws then state that an F-1 student, in many instances, has the right to apply for F-1 Optional Practical Training. Essentially, this employment authorization is granted by the USCIS for up to one year so as to provide a foreign nurse with a meaningful opportunity to gain real world experience in the field of his/her academic studies. Specifically, Optional Practical Training provides a nursing student with the right to work for a one-year period as a nurse in a U.S. facility. What is very advantageous about this approach is that normally a one-year period of time is more than sufficient to qualify a foreign professional nurse for permanent resident status. Therefore, this migration from F-1 Student status through F-1 Optional Practical Training into permanent resident status constitutes a very appropriate, workable pathway for a foreign nurse to obtain permanent resident status as well as for a U.S. employer to obtain in a time-efficient, unbroken manner the services of a foreign professional nurse. 5. B-2 Visitor Visa In principle, it is an appropriate, authorized activity for a foreign professional nurse to enter the United States in order to sit for the credentialing examinations, such as the NCLEX. However, in order to gain admission to the United States using a B-2 visa, the foreign applicant needs to show an intention to come temporarily to the United States and to then return to the home country. For a variety of reasons, nurses have a great deal of difficulty using B-2 visas in order to enter the United States to sit for the NCLEX, since sitting for this type of examination normally reflects an intention to stay long-term in the United States and then to work in this country. An intention to stay long-term and/or to work would result in a denial of the B-2 visa. Conversely, any overt, purposeful fraud, deceit, or misrepresentation in getting a B-2 visa can bar, such as denying an intention to sit for the credentialing examinations and thereafter seeking a job, could disqualify a foreign national from qualifying for permanent resident status or other immigration benefits in the future. Therefore, although allowed in principle, foreign professional nurses oftentimes face significant restrictions on their ability to enter this country under B-2 visas to fulfill the credentialing process. CONCLUSION The immigration of nurses and, indeed, of foreign healthcare workers, has become a special practice area in the field of immigration law, owing to the competing requirements of licensure, immigration, and credentialing organizations. It is a practice area requiring open and full communication to manage the expectations of both the employer and the foreign professional nurse. Hopefully, our immigration laws will become liberalized – particularly in the nonimmigrant arena – to account for the positive role played by foreign professional nurses in addressing the nurse shortage situation in this country. But even under the current state of the law, the employment of foreign professional nurses is an entirely attainable objective provided that the parties build in sufficient lead-time and take an honest and responsible approach to immigration requirements. We would value your comments on the usefulness of this information and, more generally, your inquiries on immigration possibilities for foreign professional nurses. April 2003 * Robert D. Aronson focuses his legal practice on the immigration of foreign healthcare professionals. He is a widely recognized authority in this area of immigration law, and has received various awards and commendations for his work from legal, medical, and governmental bodies. He holds his J.D. from Indiana University and was a Fulbright Fellow at the law schools of Harvard University and Moscow State University (USSR). |
Aronson & Associates, P.A. |