Immigration Laws on Employment of Foreign-Educated RNsA Powerpoint Presentation

Philippine Nurses Association of America10th Eastern Regional Conference

The Population We Care:Now and Beyond the 21st Century

By Reuben S. Seguritan450 7th Avenue, Suite 1400New York, NY 10123212-695-5281www.seguritan.com

10th Eastern Regional ConferencePhilippine Nurses Association of AmericaOctober 12, 2007Cherry Hill, New Jersey

IMMIGRANT VISA

I. The immigrant visa process for RNs starts with the I-140 petition. RNs are in Schedule A shortage occupation so

they are exempted from labor certification. The I-140 may be filed even if there is visa

retrogression. The following steps must be taken prior to filing:

Obtain a prevailing wage from the SWA Post job notice for 10 business days or notify

union

The I-140 must be filed between 30 and 180 days from the posting or from the union notification.

The following documents must be attached: Form 9089 CGFNS certificate or US license or proof of

passing the NCLEX Prevailing wage determination Job Posting or Union notice Philippine credentials such as nursing diploma,

transcript, license Proof of petitioner’s ability to pay

II. If RN is abroad, USCIS sends approval to NVC to start consular processing NVC takes the following steps:

Collect visa fee Obtain DS 230 of RN Obtain final documents from RN Forward case to US embassy

US embassy will schedule interview if visa number is currently available

Visa screen certificate and updated offer of employment required

If visa screen certificate not submitted within a year from interview, application may be terminated.

III. If RN is in US, he/she may file I-485 application

Visa number must be current RN must be in status unless Section 245 (i) or

Section 245(k) applies I-485 and I-140 may be filed concurrently Employment and travel permits may be obtained

for as long as I-485 is pending

If the I-140 is approved and the I-485 has been pending for at least 180 days, RN may change employer.

Visa screen is not required at filing but must be submitted when requested or I-485 will be denied. If denied, I-485 may be refiled but subject to rules

on unlawful presence

IV. Green Card application will be put on hold if visa numbers are not available. Visa numbers are available when the visa

allocation in a given month exceeds or is equal to the number of applicants.

Monthly visa allocations are determined by dividing the yearly allocation by 12 Worldwide yearly allocation for all employment

visas is 140,000 and the Philippines is allotted 7% or 9,800. Unused family visas from previous year is added.

Philippine Third preference which covers RNs gets 28.6% or 2,803 yearly, 234 monthly.

Philippine allotment is increased if other countries do not use up their allocation.

The number of documentarily qualified applicants each month is reported by visa processing posts and this will be compared with the allotment for the next month.

If the visa allotment is sufficient to satisfy all applicants for that month, the category is current. If not sufficient, a cut-off date is set, and only

those with priority dates earlier than the cut-off date will be issued visas.

Priority date refers to the date the I-140 is filed. Retrogression occurs when the cut-off date

moves backward or becomes completely unavailable due to exceedingly high demand.

Cut-off dates or retrogressions are eliminated if more visa numbers are added to the visa pool.

The AC21 Act of 2000 recaptured 130,107 unused visa numbers in 1999 and 2000 increasing visa pool and this eliminated the retrogression that occurred prior to July 2001. This is why the Philippines got more than the 9,800 usual yearly allotment after 2000. For instance, it got 15,497 employment visas in 2004 and 23,733 in 2006.

The Real ID Act enacted in May 2006 recaptured 50,000 visa numbers for Schedule A occupations and this eliminated the January 2004 to May 2005 retrogression for nurses; 5,125 were used in 2005; 33,341 in 2006. 57% or over 21,900 went to Filipino PTs and RNs and their dependents.

Slow processing of visa applications reduces the demand for visa numbers and advances if not eliminates cut-off dates.

The July 2007 Visa Bulletin surprisingly showed that most employment categories were current.

This was done to increase visa demand in order that all visa numbers for 2007 would be used up.

But USCIS speeded up processing that by 6/30/2007, all numbers were used up.

The State Department and the USCIS announced on July 2, 2007 that there were no more visa numbers left for 2007 and rejected all applications filed on July 2 and after.

Lawyers and advocacy groups threatened to sue.

Rejection policy was reversed and applicants were given up to 08/17/2007 to file.

320,000 I-485 applications were filed.

V. Bills have recently been introduced to increase visa numbers for nurses. The Comprehensive Immigration Reform

Act of 2006 which sought to exempt RNs from visa quota through 09/30/2017 was passed in the Senate but failed to become a law.

The Rural Nursing Promotion Act (S.640) which exempts nurses from the quota through 09/30/2017 was introduced by Senator Norm Coleman on 02/15/2007and is still in the Judiciary Committee.

Senator Hutchison proposed last March to recapture 61,000 unused numbers and this was amended by Senator Durbin to include a fee of $1,500 per nurse but failed to pass.

Senator Schumer reintroduced last August the Hutchison-Durbin proposal but also failed.

NON-IMMIGRANT VISA

I. RNs do not qualify for H-1B visa unless: The position requires and the nurse has

obtained advanced practice certification such as clinical nurse specialists, nurse practitioners, certified registered nurse anesthetist and certified nurse-midwife.

The position is for an upper level nurse manager.

The position requires higher degree of knowledge or skill than a typical RN such as critical care and peri-operative nurse specialists.

II. RNs are eligible for H-1C but the requirements are restrictive.

The nurse must work in a health professional shortage area.

Petitioner hospital must obtain a labor attestation.

Only 14 are known to have been approved:

5 in Texas, 2 in California, 1 each in New Jersey (Elizabeth General), Georgia, Missouri, Maryland (Mercy Medical), New York (Peninsula Hospital), North Carolina (Southwestern Regional) and Illinois.

Only 500 visas are given each year. 29 were issued in 2001; 111 in 2002; 48 in 2003;

70 in 2004; 31 in 2005; and 24 in 2006. Only 4 were issued to Filipino nurses in 2006

The program was implemented from September 21, 2000 to June 15, 2005 and reauthorized from December 20, 2006 to December 20, 2009.

III. Other visa options are H-3 Trainee, TN for Canadian and Mexican citizens and J-1 exchange visitor.

IV. Several bills have been introduced to increase non-immigrant visa numbers.

A bill to remove the stringent requirements and to eliminate the numerical limitations of the H-1C visa was introduced by Senator Brownback in 2001 and by Rep. Sheila Jackson Lee in 2001 and again in 2003 but died for lack of support.

The Nursing Relief Act which creates a new W-1 visa was introduced by Rep. John Shadegg in 2006 and again in 2007 but it is still with the Judiciary Committee.

IMMIGRATION-RELATED ISSUES

I. Has the CGFNS been unfair to Filipino RNs?

II. Have the recruiters, the hospitals and the health care agencies been fair to our RNs?

III. Have the RNs been fair to their petitioners?

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