Nurses, Immigration and the Philippines
February 11, 2000
In recent weeks, I have received an unprecedented number of inquiries relating to immigration issues affecting nurses from the Philippines. Is it really true that visas are now available for foreign nurses to work in the U.S.? How long will it take to process a visa? Does a nurse need a petitioning employer, and if so, must they work for that employer once they arrive in the U.S.?
Questions on these topics first started streaming in several years back after Congress let “sunset” the H-1A visa law that allowed for the issuance of temporary work visas to foreign nurses. The calls have been coming from nursing homes and hospital administrators, recruiters and of course, U.S. relatives, all anxious to find a way to allow overseas R.N.’s travel and work in the U.S. Unfortunately, back then and even now, my answers have been anything but definite. And my uncertainty is not because the law is not fairly clear. Instead, it is the INS’ procedure and their legal interpretations that have in the past, and continue to, concern me.
The Law: Without the H-1A visa, the only realistic avenue that remains to allow foreign R.N.’s to travel and work in the U.S. is the “E-3” immigrant visa. That’s right, by way of the petition of a U.S. facility, a foreign R.N. is eligible to travel to the U.S. as an immigrant, and without the need for further immigrant processing once they have arrived. They basically are in the “green card’ status the minute they arrive in the U.S. More on this option a little later.
On the other hand, with the support of Congressman Bobby Rush, there now exists an “H-1C” temporary work visa for R.N.’s. However, only 500 such visas are issued per year for the entire U.S., and the petitioning facility must satisfy a complex set of regulations in proving that they function in a medically underserved community. In my opinion, the H-1C visa is not the most viable of options, given the slim allotment of visas and the overly burdensome paperwork requirements.
As far as the H-1B visa is concerned, a U.S. Court of Appeals recently put to rest any question regarding its viability. In a 12 page decision, the court rejected an attempt by one health care agency to petition Filipino nurses to enter the U.S. on H-1B work visas, as it was concluded that an H-1B visa is appropriate for positions that require the attainment of a Bachelors degree. Although the Filipino candidates all has B.S.N. degrees, because R.N.’s in the U.S. are generally not required to have Bachelor degrees, the INS will not approve such H-1B petitions.
So that brings us back to the immigrant petition. Three years ago and continuing through today, I would advise clients that I generally saw no problem in obtaining the initial INS approval of the immigrant worker petition, as long as the R.N. was licensed back at home, and had the old CGFNS (Commission on Graduates of Foreign Nursing Schools) certification.
The questions that did concern me was how U.S. consular posts, such as the U.S. Embassy in Manila, was going to apply the law when the applicants would appear for their visa interview, and were not in possession of a full, unrestricted license to practice nursing in their state of intended employment (as this licensing requirement is traditionally a part of the immigrant processing in the U.S.-after they had originally arrived on H-1A or some other type of visa). Clearly, this is going to be the case the majority of the time since most prospective applicants have never ever been in the U.S. before.
Well years later, I am now seeing immigrant visas being issued by U.S. consular posts, such as Manila’s, to those overseas applicants who were willing to take their chances. The U.S. embassies have not been requiring the showing of a full license, only that the nurse will have some sort of temporary license to practice nursing while they await their state licensure testing results. Also, unexpectedly, between POINT A (the immigrant petition started years back, and POINT B (visa issuance), the U.S. Congress enacted laws requiring additional certification from foreign educated health care workers.
The ICHP “Visa Screen” certificate is now a requirement for all immigrant R.N.’s and will only be issued after the R.N. attains a certain scores on the TOEFL or MELAB examinations (including tests for spoken and written English).
Importantly, the ICHP Visa Screen certificate is not needed to start the immigrant worker petitioning process with the INS in Nebraska-only at the end phase when the applicant applies for their immigrant visa at the overseas consular post.
So what should make a nurse or facility think twice before starting the process now since we seem to have a handle on the process and what is being required?
In a word: time. For immigrant worker petitions now being filed with the Immigration and Naturalization Service’s Nebraska Service Center (for positions in the Chicago area and Midwestern U.S.), the processing times noted on receipts recently issued signal a wait of more than a year, and that is just for the INS’ processing. After INS processing, the file must make its way to the National Visa Center in New Hampshire, and eventually to the U.S. Embassy in Manila, where immigrant visa scheduling will require at least a few months.
Yes, it is possible that the 1 year INS-Nebraska processing time might shorten up in the interim, but from all reports I have received regarding their processing priorities, I would not be on it.
As a consequence of the lengthy processing period now involved, a new concern should be taken into account: visa retrogression. At present, the yearly allotment of immigrant visas in the Employment Based, 3rd preference category (for workers such as R.N.’s and Physical Therapists) is keeping up with the demand for such visa availability for R.N.’s from the Philippines-as opposed to the oppressive cut off dates affecting all of the family preference categories. However, it would not surprise me in the least if visa cut-off dates start appearing in the coming year or so, thereby causing additional months, or maybe years, or delay for R.N. immigrants from the Philippines.
In sum, the future is uncertain. And because of these uncertainties and delays, some facilities may be deterred from petitioning nurses who may not be arriving in the near future. On the other hand, the need for nurses across the U.S. seems to be so great, that facilities will be more than happy to absorb any nurses they can get, whenever it is they arrive.
So is there any risk to having the process started now? Not really, as long as all of the parties have a clear sense of all factors involved and that the prospect for significant delays is very real.
Additionally, it should be noted that once the nurse arrives in the U.S. on an immigrant visa, immigration laws really do not tie the nurse to the petitioning facility. That is, immigration law does not specify any minimum period the R.N. must stay with their petitioning employer, only that the R.N. has a good faith intention to work a the facility upon entry in the U.S. Most facilities or recruiters will try to address this issue by making the execution of 2 or 3 year employment contract as a condition to facilitating the immigration process for a given R.N.
Lastly, for R.N.’s already in the U.S. on some sort of other visa (even overstays), a variety of additional options may be available in facilitating the R.N.’s immigrant processing without them departing the U.S. Obviously, the viability of any such options will depend on the specifics of the individual’s case.
PUBLISHED February 11, 2000 – “IMMIGRATION LAW FORUM”
Copyright © 2000-2008, By Law Offices of Richard Hanus, Chicago, Illinois