The shortage of nurse is a widely-open secret in the U.S. medical community. As immigration lawyers, we are frequently contacted by American health care facilities that are frustrated by the difficulty of finding qualified nurses and are looking for an alternative solution - foreign nurses.

The occupation of nurse takes a special corner in the already highly specialized U.S. immigration law. In a balancing act between the need for more nurses and the need to protect the U.S. workers as well as the patients who deserve qualified health care, the Congress has often promulgated, enacted, and changed the laws and regulations dealing with foreign nurses. The result is a confusing and unsettled web of regulations, requiring particular attention.

At one point, a special category known as H-1A was created specifically to alleviate the shortage problem and to allow the U.S. employers to employ foreign nurses on a temporary basis. However, the H-1A category was allowed to expire in 1997, and the permanent residence option is now favored over the temporary visa options.

Permanent Residence for Registered Nurses

Let's first explore the green card option to hire foreign nurses. Because the registered nurse (RN) is a Schedule A shortage occupation, an employer who wishes to immigrate an RN is exempt from having to submit an application for alien labor certification to the Department of Labor. Therefore, an immigrant visa petition may be filed with the BCIS . At this time, if the RN and her family members are already in the U.S., we will simultaneously begin their adjustment of status to permanent residence under the new regulations. If the RN is abroad, an immigrant visa petition must be approved before we can begin a permanent visa processing through a U.S. consulate.

The immigration process for nurses looks deceptively simple. Despite the lack of labor certification, there are many requirements the foreign nurse must meet before becoming eligible for permanent residence.

A foreign nurse must meet the following requirements before getting employment in the U.S. The RN must be in possession of a diploma from a nursing school and an RN license in home country, a full and unrestricted license to practice professional nursing in the state of intended employment, or a certification that she has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS), and a VisaScreen Certificate.

There are no exceptions to the credentialing requirement, even for nurses educated in the US. For information to the State Licensing requirement, click here.

The state licensing examination (officially known as the National Council Licensure Examination for Registered Nurses or "NCLEX-RN") may only be taken in the U.S., Guam, Saipan, the Virgin Islands, Puerto Rico and American Samoa at this point. However, NCLEX officials have indicated that starting in 2003, the NCLEX-RN will be offered abroad. The NCLEX-RN is administered by the National Council of State Boards of Nursing, Inc. (http://www.ncsbn.org)

In addition, every foreign nurse, whether educated, licensed, and trained in the U.S. or abroad, now must present a VisaScreen Certificate in order to qualify for immigration. The VisaScreen Certificate requirement was imposed by §343, a last-minute amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

A VisaScreen certificate is issued only after the RN has demonstrated that (1) her education, license and training in her country are equivalent to education, licensure and training in the U.S. and that (2) her level of competence in oral and written English are appropriate to practice professional nursing in the U.S. VisaScreen certificates are issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS); web site (www.cgfns.org). Obtaining such a certificate requires a significant expenditure of time, effort and money (over $300) on the part of the nurse. This requirement will only be waived if the RN is already employed in the U.S. on a temporary visa.

In order to show language proficiency and qualify for a VisaScreen certificate, all nurses, who were educated in countries other than U.S., Australia, New Zealand, Ireland, United Kingdom or Canada (except Quebec), must achieve a certain score on tests in written and spoken English administered by TOEFL (http://www.toefl.org) or MELAB (http://www.lsa.umich.edu/eli/melab.htm ).

Temporary Visas for Nurses

As explained above, there are only limited options for the employers that wish to hire RNs on temporary working visas. Although the similar licensing requirement applies as in permanent resident cases, the VisaScreen requirement is waived for all nonimmigrant nurses.

First, if the foreign RN is a citizen of Canada or Mexico, the TN option under NAFTA may be utilized. RNs, who are citizens of Canada or Mexico, may work in the U.S. in TN status with an employment offer from a U.S. employer if they are licensed in Canada or Mexico and in the state of intended employment. However, while Canadian RNs may apply for TN directly at the border, Mexican RNs must wait for the approval of an I-129 nonimmigrant petition before applying for a TN visa at a U.S. consulate in Mexico.

Secondly, with the last H-1A visa expired in 1997, H-1B specialty occupation status may be considered in some limited situations. The H-1B category only applies to jobs for which a four-year bachelor's degree is a minimum entry requirement. Thus, general staff RN positions, that require only a two-year associate degree rather than a four-year bachelors' degree, are not an H-1B position. However, if a health care facility can justify that a four-year degree is the minimum entry requirement for certain jobs (e.g., nurse practitioners, nurse anesthetists, certain nurses in supervisory positions, etc.), such positions may be suitable for an H-1B visa.

Finally, there is a special H-1C category for RNs in medically underserved areas. Under the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), certain hospitals in medically underserved areas may be allowed to employ up to 500 nurses nationally in temporary "H-1C" status.

In order to hire foreign nurses under the H-1C, the employer must fulfill a number of conditions and obtain attestations from the Department of Labor. Form example, the employer must be a hospital located in a federally-designated Health Professional Shortage Area (HPSA) as of March 30, 1997, have a minimum of 190 acute care beds, and have a minimum percentage of Medicare and Medicaid patients, etc. Requiring hospitals to be located in HPSAs, determined by the 1997 standard, not only is illogical but also excludes a majority of hospitals from even considering the H-1C option. Because of such restrictive regulations, only 14 hospitals in the entire nation are qualified to apply for H-1C nurses.

As stated, the specialized and unresolved immigration laws and regulations regarding foreign nurses requires special care in planning and implementation of the immigration application on behalf of foreign nurses. It is therefore advisable for the employers and foreign nurses to begin the immigration process by seeking out qualified immigration attorney's guidance as early as possible.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.