Nurses – Shortages and Options
Posted Nov 23, 2001
In the present economy, news of worker layoffs is a daily occurrence. The issue is particularly critical to many foreign workers and their families, for whom job loss can also mean the loss of legal status to live and legally work in the U.S. However, there are some key sectors currently experiencing labor shortages.
There is a long-standing shortage in the nursing profession. According to the Bureau of Labor Statistics (BLS), an agency within the U.S. Department of Labor (DOL), Registered Nurses (RNs) make up the largest heath care occupation. The BLS expects that jobs for registered nurses will grow significantly, with the greatest growth in the area of home health care.
There are a number of causes for the shortage of RNs, including the aging workforce and recent changes in hiring patterns. Many hospitals cut their nursing staff during the height of managed care. A trend that now has reversed. Hospitals are increasing the numbers of RNs on staff in response to concerns about the quality of patient care.
From an immigration point of view, the nursing shortage has been long recognized by the DOL. RNs are listed as a "Schedule A," pre-certified occupation for green card purposes. This pre-certification means that the DOL has determined RNs are in short supply and, therefore, employers filing for them do not have to undergo the usual procedure for recruitment of U.S. workers that is required for labor certifications (LCs). The goal of the LC recruitment procedure is to determine the availability of qualified and available U.S. workers in the local area. The LC is often the most difficult and time-consuming phase of an employment-based immigration case. RNs can bypass this procedure and, if otherwise eligible, obtain permanent residence status far more easily and quickly than almost any other occupation. (Physical Therapists and Occupational Therapists are also eligible for Schedule A.)
Temporary visa options for nurses are more limited and problematic. The following options may be available for nursing positions:
a) H1C This category permits foreign-trained nurses to work temporarily in designated Health Professional Shortage Areas. H1C nurses are limited to 500 per year with a three-year, non-extendable duration. The nurse must have a U.S. education or an unrestricted license in the home country. S/he must also meet any licensing and examination requirements and have proof of qualifications and eligibility to practice as an RN upon admission to the U.S. There are specific restrictions on the type of employer eligible to petition for an H1C nurse. The employer must also go through a rigorous process to pre-qualify. A detailed review of this category is available in our NewsBrief entitled, Overview : H1C Visas for Registered Nurses, published in the May 11, 2001 edition of the MurthyBulletin and available on MurthyDotCom.
b) H1B Only in limited circumstances, a nurse with the equivalent of a U.S. bachelors degree or above in nursing can possibly qualify for H1B status. The difficulty with this option is that H1B status is granted only for those positions that qualify as "specialty occupations." That is, the position to be filled must require a Bachelor's degree as a minimum qualification. The majority of RN positions do not require a baccalaureate degree but rather the RN certification, which does not require the Bachelor's degree in most instances. Therefore, these positions would not be appropriate for an H1B case. The sponsoring entity would have to demonstrate that the Bachelor's degree was a prerequisite for the particular position in the past and that the degree is normally required for that particular type of job. Examples of nursing positions that are more likely to require the degree are intensive care nurses and certain supervisory nursing positions. The H1B would also be appropriate if the state requires the Bachelor's degree as a prerequisite for licensing.
Additionally, the prospective applicant must pass the foreign nursing exam (CGFNS) and obtain proper state licensure. A specific discussion of the difficulties inherent in the H1B category for nurses is available in the NewsBrief, Case Highlights Difficulties in Obtaining H1B Status for RNs, available on MurthyDotCom. Further general information regarding the H1B category is also available our website, under Work Visas.
c) TN1 Canadian and Mexican nurses may be able to enter the U.S. in TN status, under the North American Free Trade Agreement (NAFTA). TN visas are available for certain persons engaged in activities at a professional level. The profession must appear on the NAFTA list and require a Bachelor's degree or appropriate credentials demonstrating status as a professional. There are specific requirements listed for each of the professions. In the case of nurses, the appropriate credentials are an RN and a state or provincial license. Canadians are allowed to enter the U.S. in TN status in one-year increments upon demonstration of Canadian citizenship, a bona fide U.S. job offer, and possession of appropriate credentials. The applicant must renew the TN annually. The process for Mexicans is a bit more difficult and restrictive, but still a useful option.
d) H-3 Nurses may also enter the U.S. on H-3 trainee visas if the position offered meets the H-3 requirements. These trainee visas do not allow for productive employment, other than incidental to training. They also require a demonstration that the training is unavailable in the home country and that it will benefit the nurse's career in his/her home country. The trainees are required to demonstrate that they will return home after their training. This visa would not serve to ameliorate the U.S. nursing shortage, since H-3 trainees cannot occupy regular positions; they can come to the U.S. for training purposes only. A detailed summary on H-3s, entitled Overview : H-3 Visas for Trainees is available on MurthyDotCom.
e) H2B The Temporary Workers category has only limited application to the nursing field. The most significant requirement of this category is that the employer must demonstrate that the position itself is temporary. That is, not only must the assignment be temporary, the employer's need for the employee's services must also be temporary. Additionally, the employer must obtain a temporary LC, which involves advertising the position and demonstrating that there are no U.S. workers available. The beneficiary is admitted for no more than one year, with possible extensions in one-year increments for up to three years. This process, and the short duration of the visa, may be prohibitive from a cost / benefit point of view.
Therefore, for hospitals and nursing homes now facing a shortage of nurses, the willingness to sponsor foreign-born nurses for the green card may be the answer. Many qualified immigrants would welcome the opportunity to gain additional education, employment, and permanent resident status. Many are working as CNAs or LPNs in hospitals, nursing homes, and home-duty care settings.
For the many immigrants who are now CNAs or LPNs, the additional coursework required to become an RN may be well worth the effort. The RN generally requires a two-year college degree at a minimum. An associate's degree may be well within the reach of immigrants now working in other occupations. Many hospitals also offer certificate programs for little or no charge. Community colleges tend to have both day and evening programs that are reasonably priced. The effort may be well worth it, both for career advancement and as an avenue to U.S. permanent resident status. © The Law Office of Sheela Murthy, P.C.
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