The nursing shortage in the United States has reached a level where hiring foreign nurses is no longer merely an option but an economic necessity. With this development comes many immigration choices for nurses and the institutions employing them. Only with a strong understanding of the immigration system can those in the nursing market hope to identify the appropriate visa option for their situation. In fact, foreign nursing students in this country have more choices and more negotiating power with employers than they may realize. This article outlines specific visa options, both temporary and permanent and considers a number of hypothetical situations to highlight the opportunities available to foreign nurses and their employers.
Consider the case of Midori, a Japanese sophomore at a US college who is trying to decide on her major:
Although Midori may not realize it, her choice of major makes a tremendous difference in the immigration options available to her, because registered professional nurses (RNs) are heavily favored under immigration laws. As an RN with a bachelor’s degree from a US nursing school, she can actually avoid temporary visa categories and move straight to permanent residence (also called a “green card”). Midori can also avoid the cumbersome labor certification process (the usual path to a green card through employment) because the Department of Labor has “precertified” professional nurses as a shortage occupation.
In fact, government regulations allow concurrent filing of the two stages of a green card application. With concurrent filing, an RN like Midori can actually gain unrestricted work authorization within a few months of beginning the green card process.
The immigration advantages for nurses also apply to foreign-trained RNs whether they reside in the United States or abroad. Vanya is an example of just such a nurse. He is currently visiting the United States, has a license in Latvia, and has passed the National Council Licensure Examination (NCLEX exam):
Vanya may be able to take advantage of the same "fast track" to work authorization and permanent residence that was available to Midori. Work authorization and green card would also be available for his wife and children if he is married. Like some foreign nationals, Vanya does not fully understand the scope of the U.S. nursing shortage. As a result, he may not negotiate effectively with potential employers who may be willing to sponsor him for permanent residence.
Does Hiring Foreign Nurses Hurt U.S. Citizens Working in the Field?
The hiring of foreign nurses in the United States has been controversial, particularly among U.S. citizen RNs who are already concerned about their pay and working conditions. However, foreign nurses who are armed with knowledge of the huge nursing shortage in this country and their opportunities to find work here are joining U.S. nurses to demand reasonable salaries and hours. This will only happen if foreign nurses overcome any fear they have of the U.S. immigration system.
How Should Hospitals and Other Institutions Identify Appropriate Foreign Nurses and Visa Options?
Better understanding of the immigration system helps institutions (e.g., hospitals and nursing homes) as much as it helps nurses. In some cases, hospitals are so desperate for RNs that they turn to unscrupulous recruiting firms that may use improper or even fraudulent visas to get nurses into the United States. Consider the example of a hospital that has no understanding of the visa categories for RNs:
Until it reviews the proposal with an immigration professional, this hospital is playing with fire. Although it sounds tempting, the proposal from the professional recruiting company has a number of problems. For starters, an H-1B visa is only for specialized RN positions that require a bachelor's degree or the equivalent. Since many nursing programs abroad offer four-year degrees, some recruiters try to use the H-1B category for all nursing positions. We have seen recruiters classify every position in the hospital as a "charge nurse" and bring dozens of charge nurses at a time to fill regular staff nurse positions (that are generally filled by RNs with an associate's degree). In one even more egregious abuse of immigration policy, we have seen a recruiter like the one above use the Q cultural exchange visa category for nurses, arguing that their main purpose in the US was to share knowledge of their home country with the patients. That is a flagrant violation of the Q visa category.
In the world of immigration, patterns of fraud lead to greater scrutiny. Moreover, filing a fraudulent petition, such as calling a staff nurse a charge nurse or a cultural exchange visitor, can lead to revocation of the visas and the hospital being fined and/or suspended from filing future visa applications. Again, proper understand of the immigration options benefits both nurses and their employers.
SPECIFIC VISA OPTIONS:
Under U.S. immigration law nurses may seek a variety of different types of visas. The right visa option will often depend on both the U.S. employer's interests and the nurse's education, experience, country of origin and interest in returning to his or her country. The following briefly explains the main visa options for professional nurses in three areas: nonimmigrant visas, immigrant visas, and teaching positions.
Note that all temporary and permanent visas for nurses require a Visa Screen certification, which is described in more detail at www.ichp.org
Nonimmigrant Visas (Temporary Options)
The immigration laws require most people coming to the United States on a temporary visa to have temporary "intent." In other words, they must have a home abroad and plan to return there after their visa expires. Temporary intent is highly subjective, but extremely important. Probably the most common reason for denial of a temporary visa is that the consular officer believes that the person is planning to stay in the United States permanently.
Considering that Vanya is here on a tourist visa, he may have trouble applying for permanent residence in the United States. The tourist visa requires temporary intent, and he would have had to provide a clear temporary purpose for his trip to the U.S. consulate in Latvia that issued his visa. Vanya will have to make a decision about whether to seek permanent residence in the United States or to return to Latvia for the final processing.
At this time, the temporary visa options for nurses are severely restricted by the temporary intent requirement. Efforts to improve the situation by creating temporary visa subcategories just for nurses, such as the old H-1A, or the current H-1C categories, have not made much of an impact.
Although applying for permanent residence directly (and skipping the temporary visa categories) is often the best option for a professional nurse, it is useful to be aware of specialized visas that may help RNs in certain situations. Specifically, a TN visa is available to Canadian or Mexican citizens. An H-1B visa is available for a nursing position that requires a bachelor's (as opposed to an associate's) degree. And an H-3 visa is useful for providing extended practical training.
F-1 Practical Training (OPT or CPT): Most foreign students are in the United States on an F-1 student visa. While they are in school, they can work on-campus, which may include hospital based or affiliated nursing schools.
F-1 students are eligible for 12 months of work authorization before or after they graduate to receive training in their chosen field of study. This is called Optional Practical Training or OPT. This is an easy way for foreign students to start working quickly. They can also work at a certified nurse or other related position if they have not yet received their RN license.
With OPT, the nurse can obtain work authorization without a job offer and can change employers easily. Note that OPT must be approved by CIS, and can take up to 90 days to process.
Nursing students may also be able to work full-time or part-time in their field of study before graduation, as long as the work is a part of the required curriculum or if course credit is offered. This is called Curricular Practical Training (CPT). There is no limit on use of CPT while in school. However, use of more than 12 months full-time of CPT results in the loss of OPT. If eligible, CPT can be a useful option because it only requires approval by the school, not the CIS.
TN Visa: The TN visa is a product of the North American Free Trade Agreement (NAFTA) designed for citizens of Canada and Mexico. Persons engaging in professional activities in the United States, including registered nurses who hold a license from a U.S. state or province, may obtain a TN visa valid for work in the United States. The TN visa is valid for one year at a time and may be renewed indefinitely. To obtain a TN visa, an applicant must show, among other things, proof of citizenship, a letter from a prospective employer, and evidence of licensing and educational credentials. Spouses and dependent children may obtain a TD visa as the dependents of the primary applicant for a TN visa.
Note that the TN visa requires "temporary intent." This is a subjective decisio nthat means the nurse has a long-term plan to return to his or her home country. The TN does not require a specific foreign residenec, as does the F-1 visa.
H-1B Visa: The H-1B visa is available for registered nurses working in a position that requires the education or work experience equivalent to a bachelor's degree. CIS takes the position that the job of a registered nurse does not require the equivalent of a bachelor's degree. However, CIS may approve an H-1B visa application for a registered nurse if the nurse has added responsibilities (such as charge registered nurses or unit manager supervisors) or occupies a position requiring specialized training (such as rehab professionals).
CIS has recently given detailed guidance on the kinds of nurse positions that qualify for an H-1B, and has identified certified advanced practice RNs (APRNs), nurse managers, and specialists (such as rehab nurses, school care nurses, and critical care nurses) as H-1B eligible. The H-1B visa is valid for three years and can be renewed for an additional three years. Spouses and dependent children can get an H-4 visa, which allows them to study but not work.
H-1B visa holders are not required to show temporary intent (a major advantage of this visa category), and can change employers easily.
The new E-3 visa for Australians is very similar to the H-1B, and will only be appropriate for nursing positions that truly require a bachelor’s degree.
H-3 Visa: Registered nurses may also obtain H-3 visas. The H-3 visa is designed for temporary workers to secure training or instruction in the United States that is unavailable in the nurse's home country. To qualify, the registered nurse must have an unrestricted license in the country where the nurse received his or her education. The nurse must state that he or she is qualified under state law to receive the training. The training program must have a set schedule and emphasize training over productive employment. Moreover, the program cannot be used to recruit nurses for staffing domestic facilities. Nurses already possessing substantial training and experience are generally not eligible for H-3 visas. H-3 visas are valid for three years and cannot be renewed.
Immigrant Visas for Registered Nurses (Permanent visa Options)
An employer may also file an immigrant visa petition for a nurse requesting that the nurse enter the United States as a permanent resident, a so-called "green card." For most jobs, the process (known as "labor certification") is divided into three parts. First, the employer asks the Department of Labor (DOL) to certify that there are no qualified U.S. citizens or permanent residents for the position. Second, the employer files an immigrant visa petition with evidence that it has the ability to pay the alien and that the alien qualifies for the position. Third, the employee (and any dependent family members) demonstrate that he or she is admissible to the United States (including a security check, medical exam, and review of visa history).
Because of the shortage of registered nurses in the United States, the Department of Labor has pre-certified this position. Thus, employers wishing to hire qualified foreign nurses may can avoid the Department of Labor, and file the application directly with CIS. As mentioned above, this can significantly shorten the overall time to obtain a green card
Nurses seeking to qualify for an immigrant visa must possess a valid nursing license in the country of nationality, a diploma from a nursing school, a full and unrestricted nursing license in the U.S. state of intended employment OR evidence of passing the National Council Licensure Examination for Registered Nurses (NCLEX-RN) OR a Certificate by the Commission on Graduates of Foreign Nursing Schools (CGFNS Certificate), and a VisaScreen Certificate issued by the International Commission for Healthcare Professionals (ICHP).
If the nurse is present in the United States in valid immigration status, he or she may also take advantage of recent changes in the immigration laws permitting concurrent filing. In essence, if the registered nurse qualifies for an immigrant visa, he or she may simultaneously file applications for permanent residence and interim work authorization. Thus, a nurse may become authorized to work in a matter of weeks. Nurses outside the United States must wait at least several more months to process their green card at a U.S. consulate there.
Note that since October 2005, there have been long backlogs for many kinds of employment-based green cards for Chinese, Indian and Philippine nationals. However, Congress has allocated an extra 50,000 green cards for the nurse category so that the backlogs have not affected nurses to date.
When applying through a job offer, professional nurses have the fastest track to permanent residence. That is the way most foreign RNs obtain green cards. However, all nurses should consider other categories of permanent residence if they qualify, such as having a family member sponsor them, playing the green card "diversity lottery," or applying for political asylum. Every year in the fall, several million people enter the diversity visa lottery. From this group, roughly 50,000 winners are chosen to apply for permanent residence in the United States. More information on the lottery is available at http://travel.state.gov/types/types_1322.html.
The huge shortage in the nursing industry applies both to nurses and to nursing faculty. Nursing faculty who are chosen after a national search that carefully considers any U.S. citizen applicants are eligible for an expedited kind of labor certification called "special handling." While they cannot skip certification through the Department of Labor entirely, they can complete this process quickly and then file concurrently for work authorization and permanent residence. Most, if not all, nursing faculty jobs are bachelor's level, so the H-1B visa is an appropriate and useful temporary option as well.
U.S. hospitals need RNs, and many foreign nurses want to work in the United States. By better understanding the U.S. visa categories available to nurses, both hospitals and international RNs can benefit. You should consult with an immigration professional as you proceed, particularly because the laws often change and are complex.
Useful References for Foreign Nurses
The following are several websites that may serve as useful references for foreign nurses:
Copyright © 2006 by Dan Berger, Stephen Yale-Loehr, and Adrienne Nussbaum. All rights reserved.
1. Dan H. Berger, a graduate of Harvard College and Cornell Law School, has written numerous articles on immigration law. He won the 1995 American Immigration Lawyers Association annual writing competition for an article on INS policies toward international adoptions. Mr. Berger has also been an outside editor for the leading immigration law treatise, Immigration Law and Procedure, since 1993, and is an Associate Editor of the Immigration and Nationality Law Handbook, published by the American Immigration Lawyer’s Association. In addition, Mr. Berger is an Author/Editor of the National Association of Foreign Student Advisor’s Manual.
Mr. Berger developed his interest in immigration in college, where he studied immigration history and taught English as a Second Language for adult refugees. He now specializes in serving academic and corporate clients.
2. Mr. Yale-Loehr is currently co-author of Immigration Law and Procedure, the leading multi-volume treatise on immigration law published by LexisNexis Matthew Bender. He also teaches immigration and asylum law as an adjunct professor at Cornell Law School. In 1994 and 1995 he was a Senior Associate (Non-Resident) for the Carnegie Endowment for International Peace in Washington, DC, working on Editor of Immigration Briefings, two leading immigration law newsletters. Until 1990 he was an adjunct professor at the Georgetown University Law Center teaching international trade law and immigration law. He is a member of the New York State, District of Columbia, and Tompkins County bar associations, the American Bar Association and the American Immigration Lawyers Association (AILA). He chairs the AILA’s Business Immigration Committee and is a member of AILA’s Investor Visa and Immigration Reform committees. He is also listed in Who’s Who in American and An International Who’s Who of Corporate Immigration Lawyers, where he is listed as one of the best immigration lawyers in the world. Because of his prominence in immigration law he is frequently quoted in the media. He has also testified before Congress on immigration issues. Mr. Yale-Loehr is the coauthor of many books, including America’s Challenge: Domestic Security, Civil Liberties and National Unity After September 11, Balancing Interests: Rethinking the Selection of Skilled Immigrants, J Visa Guidebook, Understanding the Immigration Act of 1990, and Understanding the 1986 Immigration Law, and numerous law review articles. He also co-authors a bi-monthly immigration column for the New York Law Journal. He is the 2001 recipient of AILA’s Elmer Fried Award for Excellence in Teaching and the 2004 recipient of AILA’s Edith Lowenstein Award for Excellence in Immigration Law.
3. Thao Pho graduate from Smith College with a BA in American Studies and a specialization in Race Relations and Immigration. She has personal experience with the immigration system. At age 2 she came to the United States with her family after being born in Vietnam and living in Hong Kong. Thao specializes in family-based immigration and Labor Certification.
4. Ms. Nussbaum is the Director of the Office of International Students and Scholars and the Assistant Dean of the Office of the Dean for Student Development at Boston College. She has 23 years of experience in the field of International Education including positions at Harvard University, Lesley University, Tufts University, Bentley College and Boston College. Ms. Nussbaum is also an Adjunct Assistant Professor at Bentley College, and has presented sessions at many regional and national NAFSA conferences on a variety of immigration and cross-cultural issues.