Bo Cooper, Paul Hastings Janofsky Walker LLP, Washington, DC, by rxd25403


             Ca he
      al and t
  itic igration Crisis
Cr Imm hcare
                           U.S. Healt

Bo Cooper, Paul Hastings Janofsky & Walker LLP, Washington, DC,
Daryl R. Buffenstein, Paul Hastings Janofsky & Walker LLP, Atlanta, GA
Eunice Kim, Immigration Counsel, Worldwide Trade Resources Inc., New York, NY

The views are those of the authors and do not represent the position of the Association. Health Lawyers is a non-partisan educational organization
that does not take positions on public policy issues and instead provides a forum for an informed exchange of views. Health Lawyers invites those
with opposing views on the Feature to submit letters or articles, which will be reviewed, published and edited on a space available basis. Letters to
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               he one point on which        The formula that has yielded this            tion to this critical concern, but
               all seem to agree in the     shortage is familiar and simple:             answers to how such a solution should
               explosive national debate    tremendous growth in demand and              be developed and implemented are
               over immigration is that     insufficient supply. First, the popula-      more elusive.
               today’s policies disserve    tion of Americans requiring healthcare
the national interest in many ways.         is only increasing, as baby-boomers          Suggested approaches include
One of the particularly acute areas of      approach retirement.5 Second, the            improving public perception of the
disservice to the national interest         largest proportion of U.S. nurses is         role of nurses, improving working
involves the extent to which immigra-       among this baby-boomer population,           conditions for nurses, and offering
tion law provides healthcare employers      so nurses too are leaving the workforce      financial incentives for students to
with access to foreign nurses. These        in disproportionate numbers and will         enroll in nursing programs.11 These
employers are struggling against a          be unavailable to provide patient care       proposals, however, have limited utility
severe shortage of nurses. The conse-       for their peers in coming years.6 Third,     in the near term; they require a signifi-
quences of this shortage become more        the domestic enrollment of U.S.              cant investment of time and cannot
pronounced each day, given the              nursing students is insufficient to meet     increase the number of nurses avail-
increasing healthcare demands of the                                                     able for patient care now. Similarly,
U.S. population. Part of the solution to                                                 because nurses will continue to retire
this shortage must lie, at least in the                                                  and because U.S. nursing programs are
near term, in adequate access to nurses        The U.S. has suffered                     unable to expand enrollment as
from abroad. Yet as 2007 drew to a                                                       needed, increasing the wages offered
close, congressional attention to this
                                                 from a shortage of                      to nurses will not prove fruitful quickly;
issue came in starts and stops, without                                                  healthcare employers will merely
                                               available nurses since                    compete amongst themselves to hire
the solution that this serious problem
demands. This article will discuss the          the 1990s, and this                      the limited number of available
current inadequacies of the U.S. immi-                                                   nurses.12 These proposals clearly have
gration system for employment-based          shortage is expected to                     merit and are pathways toward
sponsorship of nurses and explore how                                                    ensuring sufficient numbers of nurses
immigration for international nurses                persist into the                     in the future, but it is also necessary to
should be encouraged to alleviate the                                                    seek solutions to address the nursing
domestic nurse shortage.                         foreseeable future.                     shortage in the present.

                                                                                         Indeed, as one commentator states,
THE SHORTAGE OF                             demand, but the infrastructure needed        “[t]he shortage will not end without
NURSES IN THE                               to increase enrollment is not in place       sizeable RN wage and graduation
                                            because of an inadequate supply of           growth every year for at least the next
UNITED STATES                               professors and clinical placements.7         ten years. Achieving such continuous
                                            Astonishingly, this lack of infrastructure   growth will be difficult and might not
The U.S. has suffered from a shortage
                                            is forcing U.S. nursing schools to reject    even be possible.”13 Clearly, then,
of available nurses since the 1990s, and
                                            interested domestic applicants.8             policy objectives should include, but
this shortage is expected to persist into
                                                                                         not be limited to, expanding nursing
the foreseeable future.1 The Health
                                            This dire situation affects quite directly   faculty and student enrollment. This
Resources and Services Administration
                                            the level of patient care available at       expansion will become even more crit-
of the U.S. Department of Health and
                                            American hospitals. Analysts commonly        ical in the coming years, as “almost two-
Human Services forecasts that the
                                            link a low nurse-patient ratio to poor       thirds of full-time nurse faculty
current nursing shortage will expand to
                                            patient outcomes and increased               members are likely to retire” by 2020.14
one million job openings by the year
                                            danger to patient safety.9 Conversely,       This long-term plan should be
2020.2 The Bureau of Labor Statistics of
                                            increasing the ratio of nurses to            augmented with near-term policies to
the U.S. Department of Labor (DOL)
                                            patients vastly improves the level of        reduce the job vacancy rate at health-
similarly foresees steeply rising demand,
                                            care provided to patients, as “demon-        care employers.15 The clear comple-
predicting that there will be one million
                                            strated by shorter lengths of hospital       ment to these long-term aims is to
new job openings for registered nurses
                                            stay, fewer failure-to-rescue deaths, and    allow international nurses to fill these
by the year 2012.3 “[R]egistered nurses,”
                                            lower rates” of hospital-related infec-      openings until there are sufficient
according to DOL, “are projected to
                                            tions.10 It is not hard to find a            numbers of candidates graduating
create the second largest number of
                                            consensus that there must be a solu-         from U.S. nursing programs.
new jobs among all occupations.”4

                                                                                                         JANUARY 2008        31
ACCESS TO FOREIGN                          also limit how many nurses may be           In one critical aspect, the permanent
                                           employed with an H-1C visa in any           residence process is streamlined for
NURSES UNDER U.S.                          given state. Finally, the TN nonimmi-       nurses. DOL has the authority to
IMMIGRATION LAW                            grant visa category that emerged from       designate job classifications in which,
                                           NAFTA allows nurses from Canada and         because of shortages in the U.S., the
A core purpose of U.S. immigration         Mexico, but no other countries, to          hiring of a foreign worker generally
law is to enable the country to welcome    work temporarily in the U.S.20 Canada,      will not adversely affect U.S. workers.
those with needed professional skills.     however, is experiencing a nursing          Using this authority, DOL has certi-
Driven in most cases by employer spon-     shortage of its own.21 For all of these     fied that the positions of registered
sorship, there are “nonimmigrant,” or      reasons, the nonimmigrant visa cate-        nurses and physical therapists qualify
temporary, visas, and “immigrant,” or      gories have been woefully inadequate        as “Schedule A occupations.”24 The
permanent visas, commonly called           as pathways to employ foreign nurses.       key result is that sponsoring a foreign
“green cards.” Nonimmigrant work-                                                      national to fill such an occupation as
based visas allow foreign nationals to     Therefore, the immigrant visa               a permanent resident does not
be employed in the U.S. for a tempo-       process—through which employers             require an individualized test of the
rary period, though that period can        sponsor foreign nationals for U.S.          labor market through a labor certifi-
last for a number of years. An             permanent residence—has been the            cation from DOL. Instead, an
employee may remain in the U.S. only       primary means of access by U.S. health-
as long as the employment continues,       care employers to nurses from abroad.
and typically there is a time limitation   Generally, through the employment-           LABOR AND EMPLOYMENT
to the visa category.16 In principle, at   based immigrant visa process,                Practice Group Leadership
least, nonimmigrant visas can be           employees fill high-demand and high-
obtained fairly quickly and can be used    level occupations to benefit U.S. indus-
to address employment needs relatively                                                  Robert R. Niccolini, Chair
                                           tries and competitiveness. Examples in       McGuireWoods LLP
promptly as those needs arise.             the healthcare arena include medical         Baltimore, MD
                                           researchers, professors and other  
However, the decisive drawback to          faculty at educational institutions,
sponsoring nurses for nonimmigrant         doctors, and registered nurses.
visas is the absence of a nonimmigrant                                                  W. Scott Hardy, Vice Chair –
visa category that is appropriate to the                                                Research
                                           For many employees, the permanent            Cohen & Grigsby PC
purpose.17 The three closest potential     residence process begins with a labor
nonimmigrant visa categories for                                                        Pittsburgh, PA
                                           certification. This is a test of the U.S.
nurses each have serious limitations.      job market, with certain recruitment
The H-1B visa is for professional occu-    requirements.22 The DOL oversees the
pations that require at least a bach-                                                   Thomas N. Shorter, Vice Chair –
                                           test and must be satisfied that there are    Membership
elor’s degree or higher as a minimum       no ready, willing, and able U.S. workers
for entry into the occupation in the                                                    Godfrey & Kahn, SC
                                           to fill the position offered. Only after     Madison, WI
U.S.18 Most nurse positions in the U.S.,   such a certification is made will an
however, require only an associate’s                                          
                                           employer be able to petition for an
degree as a minimum for entry, and an      immigrant visa for the foreign national
H-1B visa therefore cannot be used for                                                  Paula D. Walker, Vice Chair –
                                           employee. Upon approval of the immi-         Publications
a nurse filling that position. In 1999,    grant petition by United States
Congress did create a special nonimmi-                                                  Waller Landsen Dortch & Davis PLLC
                                           Citizenship and Immigration Services         Nashville, TN
grant visa category, the H-1C visa, to     (USCIS), and when an immigrant visa
allow an international nurse to work in                                                 Paula.
                                           number is available, as discussed in
certain medically underserved areas.19     greater detail below, the employee may
Both by statute and regulation,                                                         Cathrine F. Wenger, Vice Chair –
                                           apply for permanent residence (a             Educational Programs
however, the H-1C program is so            “green card”) or apply for an immi-
limited as to be virtually unusable. The                                                Trinity Health Corporation
                                           grant visa at a U.S. Consulate abroad.       Novi, MI
regulations permit only 14 hospitals       Before an international nurse may
across the U.S. to sponsor nurses. In                                         
                                           obtain permanent residence, it must be
addition, only 500 such visas may be       shown that this nurse’s education,
issued each year, and those 500 slots                                                   Thanks go to the Practice Group for
                                           foreign licensure, and occupational          sponsoring this feature.
typically remain undersubscribed           skills are equivalent to those of a U.S.
because the statute and regulations        nurse.23

employer may directly go to filing the                                                   employees for hire five years in the
immigrant petition with USCIS.                 Analysts commonly link                    future.

This important provision for desig-               a low nurse-patient                    On top of the inadequate supply of
nated shortage occupations, however, is                                                  immigrant visa numbers, these exten-
diluted in value by the delays in the            ratio to poor patient                   sive delays are exacerbated by ineffi-
availability of immigrant visa numbers.                                                  ciencies in processing by the agencies.
U.S. immigration law sets an annual                   outcomes and                       USCIS has faced difficulty in allocating
limit of 140,000 immigrant visas for                                                     every available visa number to an immi-
every fiscal year; and every immigrant,           increased danger to                    grant. This results in the underuse of
whether a direct beneficiary of an                                                       available numbers, despite the high
immigrant visa petition or a spouse or
                                                      patient safety.                    demand evidenced by healthcare
child dependent of such a beneficiary,                                                   employers sponsoring nurses for
counts toward this number.25 In recent       DOS publishes a “Visa Bulletin” every       permanent residence and international
years, demand has far outstripped            month to inform the public of the           nurses waiting in the queue for immi-
supply, and nurses sponsored for             current priority dates.26 This visa         grant visa numbers.27 Unfortunately,
permanent residence face extreme             bulletin regulates access to the final      U.S. immigration law does not allow
delays before an immigrant visa              stage of the permanent residence            for these unused visa numbers to be
number is made available.                    process, and to a green card itself.        used at any time other than the
                                             Today, nurses whose priority dates are      allotted fiscal year. There is no
As noted above, following approval of        on September 1, 2002 or earlier have        “rollover” of unused immigrant visa
an immigrant petition, a nurse must          an immigrant visa number available to       numbers to the following fiscal year. At
wait until an immigrant visa number is       them. This means that those nurses          the stroke of midnight on September
available before moving onto the final       who were sponsored for permanent            30 of each year, unused numbers
step in the permanent residence              residence more than five years ago may      simply vanish. Thus, despite the over-
process, whether by applying to adjust       now file an application to adjust status    subscription of key employment-based
status when present in the U.S. or by        if they reside in the U.S. or may apply     immigrant categories, many available
applying for an immigrant visa at a U.S.     for an immigrant visa at a U.S.             spaces for permanent residence have
Consulate abroad. When demand for            Consulate abroad.                           expired. Since 1994, over 218,000
immigrant visa numbers exceeds the                                                       employment-based immigrant visas
140,000 supply—which it has for              As noted above, under the current           have gone unused.28
years—immigrant visa numbers are             system, the healthcare industry typically
allocated according to the immigrant’s       may receive the benefit of the services     CONGRESSIONAL
“priority date.” This is the date that the
permanent residence process was first
                                             of foreign nurses only by sponsoring a      RESPONSES—
                                             worker for permanent residence. The         SOLUTIONS AND
undertaken. For most nurses, it is the       current temporary visa categories for
date of filing of the immigrant petition.    nonimmigrant workers are available for      SHORTCOMINGS
                                             nurse occupations in only the most
The U.S. Department of State (DOS)           limited ways. For this reason, most         In response to extensive lobbying
oversees the release of immigrant visa       healthcare employers are forced to wait     efforts by healthcare employers,
numbers throughout the fiscal year,          until a nurse may enter the U.S. as a       Congress passed legislation in 2005 to
which runs from October 1 through            permanent resident before being able        allow for the “recapture” of 50,000
September 30, as the 140,000 visas           to employ that nurse. Unlike with other     previously unused immigrant visa
cannot be assigned all at once. The          professions, where it is often possible     numbers specifically for Schedule A
total of 140,000 visas are managed           for a professional to work in the U.S.      occupations.29 This legislation did
according to five employment-based           with a nonimmigrant visa and then           not increase the quota of available
categories, with the bulk of petitions,      “adjust” status to permanent residence,     immigrant visa numbers. It merely
including petitions for nurses, classified   most nurses cannot reside and work in       allowed for those lapsed numbers to
in what is called the employment-based       the U.S. while waiting for an immigrant     be allocated only to registered nurses
third preference (EB3). Immigrant visa       visa number to become available. They       and physical therapists. In essence,
numbers are available when the               must therefore “consular process” by        the legislation pulled immigrant peti-
priority dates become “current,” with        applying for an immigrant visa at a U.S.    tions for nurses and physical thera-
older priority dates in the queue            Consulate abroad. Thus, many health-        pists out of the general EB3
receiving immigrant visa numbers             care employers have no choice but to        population and temporarily carved
before more recent priority dates. The       select prospective international nurse      out a separate immigrant category

                                                                                                         JANUARY 2008       33
for Schedule A occupations. While                                                  U.S. Alternatively, excepting nurses
important, this was only a stopgap                                                 from the 140,000 annual quota would
measure. Given the high demand for                                                 remove the years-long delay of
employees to fill these shortage occu-          Since 1994, over                   waiting for the employment authori-
pations, the 50,000 visa numbers,                                                  zation of nurses entering the U.S. as
which represent over one-third of all
                                            218,000 employment-                    permanent residents. Even better, the
available employment-based immi-            based immigrant visas                  combination of these approaches
grant visa numbers in any fiscal year,                                             would boost the number of employ-
were all recaptured in approximately          have gone unused.                    able international nurses on an
18 months. Immigrant visa numbers                                                  ongoing basis; this would allow U.S.
for nurses once again became over-                                                 nursing schools the time necessary to
subscribed in November 2006. It is                                                 expand enrollment by recruiting
also notable that approximately one       have created a new nonimmigrant          more professors both to replace
in five of these “recaptured” immi-       visa category specifically for nurses,   those expected to retire in the next
grant visa numbers was actually used      with the educational, licensure, and     ten years and to expand faculty size
by a registered nurse or physical ther-   skill-set verification and evaluation    more generally.
apist. Because Congress requires a        requirements virtually identical to
worker’s accompanying spouse and          those already in place for interna-      A less favorable option would be to
children to be counted toward the         tional nurses who become U.S.            create a new immigrant visa classifica-
pool of available immigrant visas, the    permanent residents. These nurses        tion only for Schedule A occupations.
legislation did not actually provide      would have been able to work             This would be similar in effect to the
healthcare employers with 50,000          temporarily in the U.S. and simulta-     recapture legislation in 2005-2006. The
nurses and physical therapists.           neously pursue permanent residence.      main drawback would be that nurses
                                          This bill was referred to the House      would nevertheless be subject to the
Similarly, in November 2007,              Committee on the Judiciary but did       140,000 annual quota and therefore
following the failure of a major          not proceed further. The STRIVE Act      the benefits to nurses would come at
comprehensive immigration reform          of 2007 (H.R. 1645) and The              the cost of other critical employment-
bill, a “bridge” provision was intro-     Comprehensive Immigration Reform         based immigration. Similarly, excepting
duced to address the needs of health-     Act of 2007 (S. 1348) both would         the dependents of nurses from
care employers in the interim, until a    have excepted those filling Schedule     counting toward the yearly 140,000
more lasting reform is possible. The      A occupations from the annual            numerical limitation might make more
Senate approved an amendment to           numerical limitation of 140,000          visas annually available, but this
the Fiscal Year 2008 Labor-Health         immigrant visas, but these bills also    approach would not redress the delay
and Human Services appropriations         were not enacted.                        faced by nurses awaiting immigrant
bill that would have allowed the                                                   visas in the general EB3 pool.
recapture of 61,000 previously            Considering the ongoing needs of
unused immigrant visas specifically       healthcare employers for nurses,         CONCLUSION
for Schedule A occupations.30 This        most bridge legislation would only
amendment would have allowed              address the shortage temporarily; the    While this article focused on immigra-
healthcare employers to bridge the        shortage would recur once “recap-        tion issues affecting international
gap during the near term while            tured” immigrant visas are allocated     nurses, the inadequacies of U.S. immi-
considering methods to increase           to international nurses, most likely     gration policy also affect other occupa-
enrollment at U.S. nursing schools.       within 18 months or less. It seems       tions in the healthcare industry. The
This amendment was dropped from           improbable that U.S. nursing schools     annual quota for new H-1B employees,
the appropriations bill during the        could increase enrollment to the         which is set at 65,000 for each fiscal
conference between the Senate and         levels necessary to meet the nursing     year, has resulted in employers being
the House, and its prospects were still   demand by 2009. Therefore, a             unable to temporarily hire desperately
uncertain in the late stages of the       longer-term solution is necessary. A     needed medical researchers, doctors,
congressional session.                    nonimmigrant visa category for           professors, and technologists. The
                                          nurses would allow healthcare            demand for these nonimmigrant visas
Other more far-reaching legislative       employers to employ nurses more          is so great that, in fiscal year 2008, over
efforts have been made, unsuccess-        immediately and sponsor them for         130,000 petitions were filed during the
fully, in the last year. The Nursing      permanent residence to increase the      first two available days. Similarly, the
Relief Act of 2007 (H.R. 1358) would      number of available nurses in the        foreign residence requirement for

                                                    Department of Health and Human                    NY, Oct. 17, 2007, available at
                                                    Services, available at
            The inadequate                          healthworkforce/reports/                          18/60922.html.
                                                    behindrnprojections/index.htm.                 22 8 U.S.C. § 1182(a)(5)(A) and 20 C.F.R. §

        employment-based                          2 Stuart Anderson, Deadly Consequences: The         656.2(c).
                                                                                                   23 8 U.S.C. § 1182(a)(5)(c) and 8 C.F.R. §
                                                    Hidden Impact of America’s Nursing Shortage,
     immigrant visa supply                          National Foundation for American Policy
                                                    Brief, September 2007 [hereinafter
                                                                                                   24 20 C.F.R. § 656.5 and § 656.15.

                                                    National Foundation Policy Brief], avail-      25 8 U.S.C. § 1152(d).
        and a host of other                         able at                      26 The DOS Visa Bulletin is available online

                                                    0709deadlyconsequences.pdf. An alterna-           at
           problems create                          tive prediction noted in the brief is a           bulletin/bulletin_1360.html.
                                                    shortage of 340,000 nurses by the year         27 Annual Report to Congress, Citizenship and

      obstacles to effective                        2020; but this lower estimate remains             Immigration Services Ombudsman, June
                                                    three times larger than the peak shortage         11, 2007. Particularly, the report notes,
    healthcare professional                         in the year 2001.
                                                  3 Daniel Hecker, Occupational Employment,
                                                                                                      “In FY 06, over 10,000 employment-based
                                                                                                      visas were lost, even though USCIS had
      hiring throughout the                         Employment Outlook: 2002 – 2012,
                                                    published by the Bureau of Labor
                                                                                                      an estimated 100,000 to 150,000 pending
                                                                                                      applications for employment-based green
                                                    Statistics of the U.S. Department of Labor,       cards.”
                  system.                           available at        28 Id.

                                                    02/art5full.pdf.                               29 Title V, Section 502 of the REAL ID Act
                                                  4 Occupational Outlook Handbook 2006,               of 2005 (Division B of Pub. L. No. 109-
international medical graduates                     published by the Bureau of Labor Statistics       13), enacted May 11, 2005.
                                                    of the U.S. Department of Labor, available     30 S. Amend. 3404 to H.R. 3403, 110th
severely limits the hireability of interna-
                                                    at               Cong., Departments of Labor, Health
tional doctors in hospitals across the            5 Id.                                               and Human Services, and Education,
U.S. The inadequate employment-                   6 Id.                                               and Related Agencies Appropriations
based immigrant visa supply and a host            7 Id. See also National Foundation Policy           Act, 2008.
of other problems create obstacles to               Brief, supra note 2.
                                                  8 National Foundation Policy Brief, supra
effective healthcare professional hiring
                                                    note 2. The brief states that a nursing
throughout the system. Until Congress               school had no choice but to reject
passes meaningful reform legislation to             147,000 qualified applicants because of
boost avenues of immigration for                    the above-mentioned shortages of faculty,
healthcare employees, it is the patients            classroom space, and clinical placement
of this country who will suffer.                    sites for students.
                                                  9 See, e.g., Laura Lin and Bryan A. Liang,

                                                    Addressing the Nursing Work Environment to
Bo Cooper is of Counsel in Paul Hastings’           Promote Patient Safety, NURSING FORUM,
national immigration practice in                    vol. 42, No. 1, January-March 2007.
                                                  10 Id. See also National Foundation Policy
Washington, DC, specializing in business
immigration law. Daryl R. Buffenstein                Brief, supra note 2.
                                                  11 Id. See also S. Amend. 3449 to H.R. 3403,
chairs the national Immigration Practice             110th Cong, 110th Cong., Departments
Group of Paul Hastings in Atlanta,                   of Labor, Health and Human Services,
GA. Mr. Buffenstein is a founding member             and Education, and Related Agencies
of, and functions as General Counsel for,            Appropriations Act, 2008.
                                                  12 National Foundation Policy Brief, supra
the Global Personnel Alliance, a consortium
                                                     note 2.
of internationally active companies inter-        13 Id.
ested in global personnel mobility. Eunice        14 Id.

Kim is Immigration Counsel at Worldwide           15 Id.
                                                  16 See, e.g., 8 U.S.C. § 1184(g)(4), which
Trade Resources, Inc., of New York, NY. She
is responsible for overseeing and coordi-            limits the stay of an H-1B employee to a
                                                     total of 6 years, with certain narrow
nating all immigration processes necessary           exceptions.
for foreign nurses to immigrate to the U.S.       17 Walter N. Leutz, Immigration and the

                                                     Elderly: Foreign-Born Workers in Long-Term
                                                     Care, IMMIGRATION POLICY IN FOCUS, vol. 5,
END NOTES                                            No. 12, August 2007.
                                                  18 8 U.S.C. § 1184(i)(1).
1   What Is Behind HRSA’s Projected Supply,       19 8 C.F.R. § 214.2(h)(3).
    Demand, and Shortage of Registered Nurses?,   20 8 C.F.R. § 214.6.
    published by the Health Resources and         21 Omid Ghoreishi, Canada Continues to
    Services Administration of the U.S.              Struggle with Nurse Shortage, EPOCH TIMES,

                                                                                                                    JANUARY 2008          35

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