UPDATE: The Truth about Foreign Nurses and US Immigration Law
Published December 8, 2008

As of this writing there truly is no speedy and simple way to facilitate the issuance of either immigrant or temporary work visas for Registered Nurses from most foreign nations (Canada and Mexico are the only exceptions). Knowing the truth about foreign nurses and US immigration law is critical, specifically because

• US employers and future US RN employees are desperate to be matched up with each other
• There is an abundance of misinformation out there, and
• Employers, and especially prospective work visa holders are vulnerable to misinformation and scams.

Supply and Demand for Nurses

Not a day goes by in my immigration law practice where the shortage of registered nurses and other health care professionals in the US does not come up. Whether it is an employer desperate to staff a position in a nursing home or hospital, or a licensed foreign health care worker who is ready, willing and able to work hard, the process cannot happen soon enough. In the vast majority of cases involving registered nurse positions, however, it will be a matter of years before the foreign worker can start work in the U.S . Why is this?

H-1B: There exists no realistic temporary visa option. US Citizenship and Immigration Services has declared that H-1Bs are inappropriate for RNs except in the rarest of sophisticated, highly specialized, or supervisory RN positions. For the fiscal year 2008, only 136 H-1B visa petitions for RNs were approved.

H-1C: First problem, the position must be in a designated “shortage area” in the US, and getting the US government to formally designate anything is no small job. Second, the yearly supply is limited to only 500 visas, and a per-state limit of 25. With exceedingly restrictive requirements, this visa program did not come close to being used to its limit, with no H-1C visas approved for 2006, just 49 for 2007, and 110 for 2008.

Immigrant Visa: The I-140 petition is relatively straightforward. Give me a solvent healthcare facility and a NCLEX passing or CGFNS certified foreign RN, and I will give you an approvable I-140. But after I-140 approval, comes an unpredictable and almost mysterious wait for visa availability in the Employment-Based 3rd Preference line. Based on the State Department’s visa bulletin for December 2008, visas are being issued to RNs who were originally petitioned back in May of 2005 (and it’s an even longer wait if the RN is from China, India or Mexico). That is because the yearly allotment of immigrant visas made available under current law cannot come close to meeting the demand. Absent some congressional measure to increase the yearly allotment of visas in this category, total processing time – from the time the I-140 is filed to visa issuance – could be close to four years.

Abundance of Misinformation and Scams

Some of the most interesting stories I hear are the ones that I never get the full details on. They start something like, “but I have this friend who was able to get their petition approved in 36 hours, and then a visa issued within just 28 minutes thereafter.” Certainly I have been around long enough to summarily reject these stories as rumors or puffing. (I am always curious, though, and do try to determine if I may have missed something important in my efforts to keep abreast of the latest developments in immigration law and procedures)

However, people who are otherwise pretty smart tend to become purposely ignorant when they feel vulnerable or desperate. There generally is no quick way to facilitate visa issuance for a RN seeking to work in the US. Notwithstanding that reality, suckers across the globe fall for the tactics of predatory staffing agencies or educational “institutions” promising quick work visa turnaround or study/work programs designed to facilitate student visas that will quickly lead to some sort of work visa status. Those who fall for these scams stand to lose large sums of money, and for some foreign workers, it means being stranded in the US without the work or pay promised. Some foreign workers may even find themselves under the control of the “sponsoring” organization that forces them to perform jobs for low pay and with the threat of deportation looming over their heads.

Talk of Change Continues

Last week, the US Department of Homeland Security’s Office of the Citizenship and Immigration Services Ombudsmen released a report entitled Improving the Processing of “Schedule A” Nurse Visas. As reflected in the reference to “Schedule A” in its title, the focus of the report was on immigrant visas for RNs. The report does a fine job reporting on the problem as outlined above (i.e., limited visa options for RNs and employers seeking to fill positions, and the massive visa availability delays), but other than suggesting the need for congressional action to change the law and to increase visa options and quantities, the only solution within the Agency’s control that could be offered and acted upon was the speedier, more consistent adjudication of I-140 petitions. That solution though, will have only a very limited impact on the problem, since no matter how fast an I-140 petition gets approved, the parties are staring at a lengthy wait for visa availability.

So, as is the case for our society’s other immigration problems, we wait for Congress to act.