By:  Richard Hanus, Esq.

Published March 24, 2022

While the U.S. faces an unprecedented healthcare worker shortage, our U.S. immigration system in theory potentially offers a variety of solutions toward bringing foreign workers here to fill these roles.  This is especially the case for registered nurses, who work in a space the U.S. Congress, decades ago, has already designated as a “shortage occupation”.  But notwithstanding our nation’s desperate need to fill positions and the huge numbers of foreign RN’s looking to live in the U.S., our legal immigration system fails in meaningfully addressing this need, as it is plagued by far too many bureaucratic obstacles and delays.  As I tell numerous desperate, healthcare facility managers and foreign RN clients each week, the saddest part of the story is that these obstacles are in many ways avoidable and without the need to change a single law on the books.

Under current legislation, with some exceptions, foreign national RN’s are limited to entering the U.S. on immigrant visas, and being accorded U.S. lawful permanent residence (green card status) upon arrival here.  The green card process for an RN outside the U.S. can take as long as 2-3 years, far longer than a temporary work visa option.  Unfortunately, Canadian and Mexican RN’s are generally the only nurses qualifying for temporary visas, by way of the work visa provisions included in the North American Free Trade Agreement (NAFTA).  Like most other employment based US immigration options, an RN’s immigration process must be initiated and steered by a sponsoring employer in the U.S. looking to fill an open position.

From the RN side, the requirements include the completion of a R.N. nursing program, even a 2 year Associates Degree, and more importantly, passing the NCLEX examination, thereby qualifying for state licensure in the U.S.  Eventually, the RN will also need to obtain a special certification of their English language competence, i.e. Visa Screen/CGFNS certificate

From the petitioning employer side, the key steps and timelines are as follows:

  1. First, the petitioning employer must obtain a Prevailing Wage Determination (PWD) from the U.S. Department of Labor.  The request is initiated online and these days DOL takes approximately 7 months to issue their determination.  Why so long?  It is difficult to understand that there is a good reason, and an easy fix to reduce processing time seems to simply be a matter of DOL assigning more of its workforce to this task.
  2. Next, the sponsoring facility must post notices onsite for 10 consecutive business days advising of their intended immigration filing on behalf of one or more foreign RN’s, including details about the job duties and wage offered. The sponsoring employer must then wait at least 30 days before proceeding with the next step, the filing of the I-140 Immigrant Petition for Alien Worker.
  3. An I-140 immigrant worker petition, with an extensive set of supporting documents, is filed at a DHS/CIS processing center in the U.S.  With the payment of a base fee of $700.00 along with an additional $2,500.00 premium processing fee, the I-140 petition can get approved in less than 15 days.  Importantly, as a “Schedule A, shortage occupation”, the employer does NOT need to document the unavailability of U.S. workers to fill the position (as is required as part of the PERM, Alien Labor Certification process – a step the vast majority of job based green card filings must include),
  4. Following I-140 approval, the paperwork makes its way to the U.S. Department of State, and after submission of various RN applicant documents, eventually to a U.S. consular post in the worker’s home country for interview scheduling.  These days, depending on the volume of visa applicants at the U.S. consular post in the RN’s home country, applicants can face a 12- 24 month wait for interview scheduling.

Importantly, foreign RN’s already in the U.S. on some sort of temporary visa – including an F-1 student visa – may indeed face a shorter immigration timeline if they are eligible to undergo all processing in the U.S. via an adjustment of status application.  Also playing a role in the extended delays are the extra long immigrant visa lines citizens of certain high demand countries such as China, India and the Philippines tend to face.

Indeed, the U.S. government has attempted various initiatives to  address these delays, including having U.S. consular posts grant certain healthcare workers priority for interview scheduling.  However, the impact on cutting down the overall processing timeline has been insubstantial.

How did a process that used to take approximately 7-10 months total, get to the point of taking 2 to 3 years?  For certain the pandemic had a lot to do with it, but so has the Trump administration’s neglect of many aspects of our legal immigration processing framework.  This includes the massive cutting of resources for U.S. consular post staffing, such as for overseas visa officers assigned to review immigration applications for intending immigrant workers.

If only our government honed in on reducing DOL processing times for PWD requests AND on building back our corps of Foreign Service, consular officers to facilitate quicker visa issuance, we would be looking at a reduction in the overall processing time of at least 50%.  As many healthcare institution management officials would agree, such first steps would go a long way toward helping our nation address what started as a nursing shortage, and has turned into a bona fide nursing crisis.

PUBLISHED March 24, 2022– “IMMIGRATION LAW FORUM” Copyright © 2022, By Law Offices of Richard Hanus, Chicago, Illinois