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| FREE NEWSLETTER | |
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In March 1995, a commission established by INRA to study the effects of the law overwhelmingly recommended that it be continued with certain modifications. Thus far, no action has been taken by Congress on the one bill which was introduced to extend the current law (H.R. 428, introduced by Rep. Patsy T. Mink of Hawaii).
1. Can health care facilities with unexpired attestations approved by the Department of Labor still petition for H-1A nurses after September 1, 1995?
Yes. If a facility submitted a petition to the Immigration Service to employ an RN before September 1, the INS may still approve the petition and the U.S. Embassy or Consulate in the nurse's home country may grant her an H-1A visa after September 1. INS has announced that all H-1A petitions, applications for change to H-1A status and applications for extension of H-1A status submitted after September 1 by facilities with valid attestations will be held "in abeyance".
2. Can health care facilities with unexpired attestations continue to employ H-1A nurses currently employed by the facility after September 1 if the application for extension of stay is filed after September 1?
Yes. INS regulations provide that an H-1A nurse with a pending application for extension of stay may continue to be employed.
3. In many cases, the facility has already received an approval of a petition for permanent residence from INS demonstrating that there is no U.S. worker available to fill the position. Does the approval of such a petition exempt the facility from the requirement that the nurse be terminated when her H-1A status expires?
No. The approval of a petition for permanent residence is only the first step in obtaining a "green card" in the U.S. The number of green cards which may be issued each year is numerically limited (Congress is considering legislation which would further reduce these limits.) and there may be a gap of up to 16 months between the time that a petition is approved and when the nurse is eligible to apply for permanent residence.
4. Can a nurse in valid H-1A status change employers as long as the new employer has an unexpired attestation?
No. Even though the nurse is in proper status, and the employer has an attestation, no H-1A petitions may be granted by INS because INRA has expired.
5. Nurses have long been considered professionals for purposes of qualifying for H-1 visas long before INRA separated the category into H-1As for registered nurses and H-1Bs for other professionals. Can employers petition for nurses under the H-1B category?
Only if the employer can demonstrate that the offer of employment requires the applicant to possess a Bachelor of Science degree in Nursing (BSN) and the prospective employee possesses such a degree. Perhaps a few nursing jobs such as those for directors of nursing, nursing supervisors or nurse practitioners require a BSN. However, there is no way for an employer to obtain H-1B status for a staff nurse.
6. Are all foreign-born nurses banned from receiving temporary working visas?
There are some foreign-born nurses who may still work in the U.S. Under the North American Free Trade Agreement (NAFTA), several thousand Canadian nurses are employed in the U.S. in "Trade NAFTA" or "TN" status. Canadian nurses in TN status receive few of the protections accorded to H-1A nurses under INRA.
Mexican nurses may also qualify for "TN" status although few have taken advantage of this opportunity, perhaps because NAFTA imposes more impediments on the employment of Mexican RNs than it does on Canadian RNs.
7. Is it still possible for facilities to apply directly for permanent residence in the U.S. for foreign-born nurses?
Yes, although these RNs are subject to the quota restrictions mentioned above. The chief problem with this approach is that 75% of the H-1A are nationals of the Philippines. The backlog for obtaining a green card for Filipino nurses is 16 months and rising. Obviously, this course of action is no solution for a hospital or nursing home which has job vacancies which need to be filled immediately.
8. Can Congress still extend INRA?
Even though INRA expired on September 1, Congress may decide to follow the recommendations of its commission and reinstate the law later this year, but only if the health care community makes its concerns known. If you feel strongly about this issue, you may wish to write to, call or meet with, your Congressman.
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