Trends in Immigration Laws

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					Washington, DC




U.S. Immigration Law and Foreign
Nationals Seeking U.S. Employment as a
Nurse




Carl W. Hampe
Counsel to Commission on Graduates of Foreign Nursing Schools
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse



PERMANENT RESIDENCE:

• Since 1998, foreign nationals seeking
  permanent residence based on U.S.
  employment as a registered nurse have been
  required to:
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




    – (1) Obtain approval by the Immigration Service of
      an I-140 petition, filed by the intending U.S.
      employer, and

    – (2) Satisfy the “certification” requirements of
      Section 343 of the 1996 Immigration Act. This
      certification requirement is often referred to as
      VisaScreen.™
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




• For intending permanent residents, the U.S.
  Department of Labor has determined that
  there is a shortage of “professional nurses, ”
  and thus no “labor certification” requirement
  is imposed.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




• Instead, the employer applies directly to the
  U.S. Citizenship and Immigration Service
  (USCIS), and includes in the application
  evidence that the foreign nurse in question has
  either:
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




    – (1) an unrestricted permanent license to practice
      nursing,
    – (2) successfully passed the qualifying examination
      of the Commission on Graduates of Foreign
      Nursing Schools, and obtained a CGFNS
      Certificate; or
    – (3) passed the NCLEX-RN nursing exam..
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




  Once the “I-140” Employer petition is
  approved:
• If the foreign nurse is applying from abroad,
  the VisaScreen certificate must be presented at
  the time of interview by the U.S. Consulate.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




• If the foreign nurse is already present in the
  United States, the foreign nurse must present
  the Visa Screen certificate at the time of
  USCIS adjudication of an application for
  adjustment of status.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse



REQUIREMENTS OF VISASCREEN™

• In order to obtain a VisaScreen certificate, a
  foreign nurse must show the following:
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




   The applicant’s foreign education is
   comparable to that received by a U.S.-
   educated nurse in a general nursing program,
   and the documents demonstrating such
   education are authentic;
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




   Any foreign or U.S. licenses held by the
   foreign nurse are authentic and
   unencumbered;
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




   The foreign nurse is competent in oral and
   written English appropriate for the health care
   in which he or she will engage in the United
   States, as demonstrated by passage of
   standardized English tests (ETS or IELTS);
   and
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




   The foreign nurse has passed the CGFNS
   Qualifying (predictor) Exam, or has passed the
   state licensing exam (usually the NCLEX).
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




TEMPORARY IMMIGRANTS
• Until September 23, 2003, the Immigration
  Service had waived the certification
  requirement of Section 343 for temporary
  immigrants seeking to perform labor in the
  health care setting.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




• Effective September 2003, however, the
  VisaScreen requirement previously described
  became applicable to foreign nurses seeking
  temporary U.S. status – typically H-1C, H-1B
  (if applicable) and TN status.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




• Transition Rule. Until July 26, 2005, the
  Immigration Service allowed temporary foreign
  nurses seeking: (1) to enter the United States, (2) to
  change their temporary status, or (3) to extend their
  temporary status, up to one year to from the date of
  such entry, change or extension application, to
  comply with the VisaScreen requirement.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




• That transition period is now over, and the
  Visa Screen Rule is fully in effect for all
  foreign-national nurses, temporary and
  permanent.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




Current Status of Permanent Visas
• The current critical issue is that permanent visas are
  no longer immediately available in the “EB-3”
  category for which most foreign health care workers
  qualify. The situation is called “visa retrogression.”
• There is a temporary exception for “Schedule A”
  (labor shortage) professions, however, which include
  RNs and physical therapists.
• Legislation in 2005 provided 50,000 additional visas
  to RNs and PTs, thus avoiding “retrogression” today.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




Schedule A Visas
• Current estimates are that there are eight to ten
  months left in the 50,000 Schedule A visa surplus.
  (Approximately 3,000 per month are used.)
• After that time, unless Congress passes targeted or
  comprehensive immigration reform and increases the
  world-wide level of employment-based visas, green
  cards will no longer be immediately available for
  foreign health care workers.
U.S. Immigration Law and Foreign Nationals Seeking
U.S. Employment as a Nurse




Congress?
• Prospects for comprehensive immigration reform in
  2006 appear lower than 50%. It is therefore likely
  that U.S. employers and recruiters of foreign-
  educated nurses will seek additional visas this year
  for the “Schedule A exception”.
• The outcome of this targeted process will probably
  not be determined until Fall 2006, in the
  appropriations process.
• The only thing that is certain is uncertainty.

				
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