health-care-workers

Residence For Nurses

With certain limited exceptions, petitioning for a foreign-born registered nurse ("RN") to work in the United States involves sponsoring her for permanent residence.

If the RN resides abroad, the following steps must be completed before the nurse may be employed in the U.S.:

  • The RN must be in possession of:
    1. A diploma from a nursing school in her country;
    2. An RN license in her country; and
    3. A full and unrestricted license to practice professional nursing in the state of intended employment, or a certification that she has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS). The following states require that foreign nurses pass the CGFNS examination before taking the state RN licensing (NCLEX) examination: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia and Wyoming.

  • RNs together with physical therapists are listed as shortage, or "Schedule A", occupations in regulations (20 C.F.R. §656.22) issued by the Department of Labor. An employer who wishes to immigrate an RN is exempt from having to submit an application for alien labor certification to the Department of Labor or to a State Employment Security Agency. The immigration process begins when an employer submits an immigrant visa petition (Form I-140) to the office of the Immigration and Naturalization Service (INS) having jurisdiction over the nurse's place of intended employment. The petition must be accompanied by Labor Department forms ETA-750A and B and by various documents including those listed above. The petition should be accompanied by a check for filing fees. Typically, the INS will approve the visa petition in two to three months.

  • If the RN is a native of one of ten selected countries (including Canada, China and the Philippines), the INS first sends the approved visa petition to the National Visa Center (NVC) in Portsmouth, New Hampshire. If there is no backlog for immigrant visas from the RN's native country (her "priority date" is "current"), the NVC forwards a packet to the nurse or her attorney containing biographical information forms to be completed by her and her family members, and a list of documents which must be presented at her interview for permanent residence.

  • The RN, or her attorney, sends the signed and completed forms to the U.S. consulate where the nurse will have her interview for permanent residence. At this interview, the nurse must present various documents including the following:

    1. Application for Immigrant Visa
    2. Police Clearance
    3. Birth Certificate
    4. Marriage Certificate, if any
    5. Divorce or Death Certificate of Spouse, if any
    6. Valid Passport
    7. Medical Examination
    8. Photographs
    9. Recent job offer letter (or employment contract)
    10. Financial information regarding employer
    11. Government filing fee
    12. VisaScreen Certificate
  • The VisaScreen Certificate requirement was imposed by §343, a last-minute amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It added "uncertified health-care workers" to the list of persons who are inadmissible to the U.S. See §212(a)(5)(C), INA.

    A VisaScreen Certificate is issued only after the RN has demonstrated that
    (1) her education, license and training in her country are equivalent to education, licensure and training in the U.S. and that
    (2) her level of competence in oral and written English are appropriate to practice professional nursing in the U.S.

    For more than two years after the effective date of IIRIRA, the INS failed to issue regulations governing the VisaScreen requirement for RNs. As a result, between September 30, 1996 and December 14, 1998, the effective date of the regulations, it was impossible for an RN to immigrate through her employment. However, both the INS and the State Department continue to waive the application of §343 for RNs who are employed in the U.S. on temporary visas.

    The INS regulations provide that the only organization authorized to issue VisaScreen certificates to RNs is the Commission on Graduates of Foreign Nursing Schools (CGFNS), the organization which is listed in §343.

    The CGFNS is located at:

    3600 Market Street,
    Philadelphia, PA,19104-2651;
    Telephone: (215) 349-8767;
    Fax: (215) 349 0026;
    e-mail: support@cgfns.org

    The INS interim VisaScreen regulations (8 C.F.R. §212.15) provide that even if a foreign-born RN is educated, licensed and trained in the U.S., she still must obtain a VisaScreen certificate. Obtaining such a certificate requires a significant expenditure of time, effort and money (over $300) on the part of the nurse. In addition, unless the nurse was educated in an English-speaking country (U.S., Australia, New Zealand, Ireland, United Kingdom or Canada - all provinces except Quebec), she must achieve a certain score on tests in written and spoken English administered by TOEFL (Test Of English As A Foreign Language) or MELAB (Michigan English Language Assessment Battery) in order to qualify for a VisaScreen certificate. Passing scores for RNs are as follows: TOEFL Paper-Based 540; TOEFL Computer Based 207; Test of Written English (TWE) 4.0; Test of Spoken English (TSE) 50. For information about taking the TOEFL, TWE and TSE exams contact:

    TOEFL/TSE Publications

    Test of English as a Foreign Language
    PO Box 6151
    Princeton, NJ 08541-6151
    Telephone: 609/771-7100
    http://www.toefl.org

    Passing scores for the MELAB are as follows: Final Score 79+; Oral Interview 3+.
    For information on taking the MELAB examination contact:
    English Language Institute (ELI)
    MELAB Testing
    3020 North University Building
    University of Michigan
    Ann Arbor, MI 48109-1057
    Telephone: 734/763-3452 or 734/764-2416
    Fax: 734/763-0369
    E-mail: melabelium@umich.edu
    http://www.lsa.umich.edu/eli/melab.htm

    Unlike the TOEFL, TWE and TSE which are offered worldwide, the MELAB is only offered in the U.S. and Canada.

    Generally, the process of obtaining permanent residence may take between 9 to 12 months assuming that the immigrant visa quota from the RN's country of birth is not backlogged. Currently, none of the employment-based quotas are backlogged. However, it is probable that backlogs will develop in the near future for RNs born in India, mainland China, and possibly from the Philippines.

    If the RN is in the United States, the nurse may be able to start working for the employer more expeditiously than if she resides abroad:

    • The RN is required to have the same documents as stated at the beginning of this article. However, since she is in the U.S., she may take the state licensing examination (officially known as the National Council Licensure Examination for Registered Nurses or "NCLEX-RN"). Generally, the NCLEX-RN may only be taken in the U.S., although it is also offered in Guam, Saipan, the Virgin Islands, Puerto Rico and American Samoa. NCLEX officials have indicated that starting in 2003, the NCLEX-RN will be offered abroad. The NCLEX-RN is administered by the National Council of State Boards of Nursing, Inc. For more information about taking the NCLEX-RN, see National Council's web site at http://www.ncsbn.org This web site contains contact information for nurse licensing boards in each state.
    • The employer must submit an immigrant visa petition to the appropriate INS Service Center on behalf of the nurse.
    • The INS does not forward the approved visa petition to the NVC when an RN submits an application to adjust her status to permanent resident in the U.S.
    • Upon approval of her visa petition, assuming her priority date is current, the RN and her family members (spouse and unmarried children under 21 years of age) may apply for adjustment of status to permanent residence in the U.S. Simultaneously, they may apply for employment authorization cards, and possibly, travel authorization documents ("advance parole"). The number of documents which must be included with an application for adjustment of status is less than is required when one immigrates to the U.S. from abroad. However, a nurse can not qualify for permanent residence until she presents a VisaScreen Certificate.

    Temporary Visas for Nurses

    Although most RNs do not qualify for temporary working visas, it is possible to obtain temporary visas or work permits for nurses in the following categories: Trade NAFTA Work Permits

    Nurses who are citizens of Canada are exempt from visa requirements. They may work in the U.S. in Trade NAFTA ("TN") status if:

    • They have an offer of employment from a U.S. employer for a period not to exceed one-year;
    • They are licensed in Canada and in the state of intended employment;
    • They have a proof of Canadian citizenship; and
    • They pay a small fee to enter the U.S.

    TN status may be renewed on a yearly basis either by having the nurse reenter the U.S. with the documents listed above, or by requesting an extension of TN status from the INS Service Center in Lincoln, Nebraska.

    A TN nurse is not supposed to have any intention of remaining permanently in the U.S.

    Nurses who are citizens of Mexico may also qualify for TN status. However, for Mexican RNs, the procedure is considerably more complex than for Canadians. The employer must submit a Labor Condition Application ("LCA") to the Department of Labor and a nonimmigrant visa petition (form I-129) to the INS Service Center in Lincoln, Nebraska. Once the LCA and the petition are approved, the RN must apply for a TN visa at a U.S. consulate in Mexico.

    At the present time, the VisaScreen requirement is waived for all nonimmigrant nurses.

    H-1B Specialty Occupation Status

    Traditionally, RNs have been considered "professionals" under U.S. immigration laws. From 1952 to 1989, U.S. employers could employ foreign-born nurses using "H-1" temporary visas. In 1989, the Immigration Nursing Relief Act (INRA) was enacted as a five-year pilot program. INRA provided that only health care facilities with "attestations" approved by the Labor Department could obtain "H-1A" status to employ nurses on a temporary basis in the U.S.

    Other occupations which formerly fell within the "H-1" category became part of the new "H-1B" category. The Immigration Act of 1990 provided that only those occupations for which a four-year university degree was a prerequisite for employment could qualify for "H-1B" status. However, in 1991, the "H-1B" category was amended to include certain foreign-born fashion models.

    Although a commission appointed by the Secretary of Labor recommended that INRA be extended, Congress allowed the law to expire in 1995. Thereafter, health care facilities could no longer petition for additional foreign-born RNs to obtain H-1A visas. The last H-1A visas expired in 1997.

    The H-1B category is an ineffective vehicle for health care facilities wishing to employ RNs since the minimum entry requirement for most staff RN jobs is a two-year associate degree rather than a four-year bachelors' degree. However, where a facility can justify that a four-year degree is the minimum entry requirement for a job (e.g., nurse practitioners, nurse anesthetists, certain nurses in supervisory positions, etc.), such an RN may be granted an H-1B visa.

    H-1C Registered Nurses In Medically Underserved Areas

    In November 1999, the President signed the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA). The law provides an opportunity for certain hospitals in medically underserved areas to employ up to 500 nurses nationally in temporary "H-1C" status.

    The law requires hospitals to obtain attestations from the Department of Labor as a condition of submitting visa petitions for H-1C nurses to the INS. In order to obtain an attestation, a 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 minimum percentage of Medicare and Medicaid patients, etc.

    H-3 Trainee Classification

    This permits foreign nationals seeking training in formal training programs to enter the United States for this training.

    Employer Requirements:

    • Existence of a formal training program, with a fixed schedule and means of trainee evaluation, that is compatible with the applicant's business and does not involve extensive on-the-job training.
    • Training is not available in the trainee's home country
    • The trainee will not be employed, namely, placed in a position in which domestic workers are regularly employed
    • Any on-the-job training will not be productive employment and will be incidental to and necessary for the training
    • The training will help the nurse pursue her career outside the United States

    Nurse Requirements:

    • Foreign residence that will not be abandoned
    • Licensure/examinations necessary to accept the training
    • Full and unrestricted nursing license in the country where trained, unless trained in Canada or the United States

    Do you or a loved one need legal assistance regarding Immigration or Green Card law in San Jose, the Bay Area, or other area of California? Contact a California Immigration Attorney today!