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| FREE NEWSLETTER | |
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A special commission established by Congress to study INRA recommended in March 1995 that the law be extended with certain modifications. However, Congress has not acted to extend the law, nor to make any provision for the approximately 13,000 H-1A nurses presently employed in the U.S.
As a result, it is impossible for health care facilities to petition for H-1A status for new RNs, or even to petition to a nurse who is presently in H-1A status but is employed by another facility.
However, if the facility currently is in possession of an attestation approved by the U.S. Department of Labor (DOL), the facility may submit an application to extend the status of an H-1A nurse currently employed by the facility. INS announced in an earlier memorandum that it would neither approve nor deny such petitions, but would hold them in abeyance . Under INS regulations, this results in the nurse being able to work for the employer on an indefinite basis. However, how long the INS intends to continue holding such petitions in abeyance is unknown.
Based on anecdotal evidence, while many hundreds or even thousands of nurses have been terminated since September 1, 1995, an equal or greater number continue to be employed illegally. There is no program to identify such nurses and enforce their departure from the U.S.
Many foreign-born RNs are beneficiaries of approved petitions for permanent residence submitted on their behalf by their employers. They must wait months or even years to apply for permanent residence since the number of green cards which may be granted is limited both by category and by country of birth. Herein lies the rub. Although, in general, all categories of professional and skilled workers are current (no backlog), there is one exception to this rule: professional and skilled workers born in the Philippines. And this is precisely the category within which most of the H-1A nurses fall. In this category, the backlog is 20 months and rising.
Only those Filipina nurses who were petitioned by their employers on or before May 1, 1994 are eligible to apply for green cards today. An application for a green card ( adjustment of status ) results in the issuance of a temporary work card, thereby making these nurses employable. Unfortunately, the May 1, 1994 date, which usually advances on a monthly basis, has stood still for over seven consecutive months, making it impossible for most H-1A nurses to apply for green cards.
However, the Immigration Act of 1990 redefined the H-1B category to require that only those occupations for which the minimum entry requirement was a Bachelor s degree could qualify for H-1B status. The INS memorandum of November 17 recites this history, and cites DOL s Occupational Outlook Handbook which states that the usual educational prerequisite for a staff nurse is a two-year, rather than a four-year, degree.
Therefore, only those nurses who occupy jobs which require a four-year degree may qualify for H-1B status.
The industry put up a fuss, and in 1991, Congress amended the Immigration Act of 1990 to include foreign fashion models in the H-1B category.
On October 24, 1995, Congressman Ed Bryant of Tennessee introduced an amendment to an immigration bill (H.R. 2202) being considered by the Judiciary Committee of the House of Representatives to extend INRA. Faced with objections from Representatives Zoe Lofgren of California and John Bryant of Texas, the Committee rejected this amendment on a voice vote.
However, neither H.R. 2202 nor its Senate counterpart S.1394 has yet been enacted into law. The American Hospital Association supports an extension of INRA. If the industry feels strongly enough about the fate of the 13,000 H- 1A nurses, and the facilities and patients who rely on their services, Congress may be willing to revisit this issue.
A few nurses may qualify for temporary professional (H-1B) visas. However, only RNs who obtain employment offers which require a minimum of a four-year university degree will qualify. Examples of such positions include: (1) nurse practitioners; (2) directors of nursing; (3) nurse obstetricians; and (4) nurse anesthesiologists.
Nurses born in any country other the Philippines may immigrate to the U.S. within a few months time. If the RN is presently in the U.S. on a temporary visa, she may have a potential employer petition for her and then obtain employment authorization by submitting an application for adjustment of status to permanent resident to the INS. The nurse should obtain a full and unrestricted license to practice as a professional nurse in the state of intended employment, usually by passing the state licensing (NCLEX) examination. However, some states (e.g., Arizona, Arkansas and Utah) allow RNs from certain English-speaking countries to obtain state licenses without the necessity of taking the NCLEX examination.
If the nurse resides abroad, she may still immigrate to the U.S. through employer sponsorship. Since the NCLEX examination may only be taken in the U.S., normally she must pass the international nursing examination (CGFNS) in order to be able to immigrate to the U.S. Many states require that all foreign-trained nurses pass the CGFNS examination prior to sitting for the NCLEX.
Foreign-born RNs who graduate from U.S. schools are eligible to receive practical training (a form of employment authorization) after graduation. These nurses should seek permanent residence within two to three months after beginning their employment.
The RNs most affected by the expiration of INRA are those born in the Philippines. This is because the backlog for permanent resident visas for Filipina nurses currently exceeds 18 months. Such nurses should seek competent legal advice which may vary according to their individual circumstances.
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