Visas For Foreign Nurses

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 and naturalization 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 U.S. college who is trying to decide on her major:

Midori would like to stay in the United States after graduation, and has considered speech pathology and nursing as options. Her foreign student advisor explained that after she obtains her bachelor's degree, Citizenship and Immigration Services (CIS, formerly INS) will allow her one year of work authorization. After that, she must change to another type of visa or leave the country. She is concerned because she has heard that the process of becoming a permanent resident can be long and difficult.

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 U.S. 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 is nervous about the immigration system, especially after 9/11, and is afraid to ask about his options. He fears that if he does not take any job offered, he will not find an employer sponsor for a work visa and will have to return home.

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.

Hospitals and nursing homes will continue to seek foreign nurses. The demand for these workers far exceeds the supply. Therefore, it is crucial to educate foreign nurses and nursing students so they understand their rights and have the opportunity to join unions and advocate for the working conditions that all nurses deserve.

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:

General Hospital is a large facility in an urban area with over 100 vacancies for RNs. The nurse recruiter in the HR department has had some limited success in traveling to nursing schools and "wining and dining" nursing students. However, she is intrigued by a proposal from a professional recruiting company to provide RNs in groups of 20 from abroad. They all have strong credentials on paper, and the company promises they will all arrive with work authorization in the form of H-1B and Q visas. The hospital signs on and agrees to pay $6000 per nurse.

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.

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. The H-1A no longer exists, and the H-1C (as discussed below) is so restricted that only a few hospitals in the country have been able to take advantage of it.

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 in the United States 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 while preparing an application for an H-1B visa or permanent residence. 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 90 days or more to obtain.

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.

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. Citizenship and Immigration Services 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.

H-1C Visa: H-1C visas are available to registered nurses working in designated "health professional shortage areas." The individual must be authorized or be able to prove that they will be authorized by the state board of nursing to obtain the H-1C visa. The H-1C is limited to three years and cannot be extended. Only 500 H-1C visas may be issued per year. H-1C visas are particularly difficult to obtain due to the burden of evidence placed on the employers. In fact, only a few hospitals in the country have succeeded in being certified to accept H-1C nurses.

To secure an H-1C visa, the employer must be a hospital located in a designated health professional shortage area and must have at least 190 acute care beds. Additionally, the hospital must show that certain percentages of patients are entitled to Medicare and Medicaid and that the hospital has taken steps to recruit registered nurses who are U.S. citizens or permanent residents. The law authorizing the issuance of H-1C visas expires in 2003. After that, H-1C visas will only be issued if Congress renews or extends the law.

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 and 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 skip labor certification and immediately file an immigrant visa petition. As mentioned above, this can save months or years of processing depending on which state the employer is in. (Note: the Department of Labor is in the process of overhauling the labor certification program to create a streamlined system called PERM. The proposed version of PERM would not exempt nurses from labor certification. However, the PERM program is still evolving, and will not be implemented until next year at the earliest. We will have to wait and see how nurses are treated in the final version.)

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 spend at least several more months to process their green card at a U.S. consulate there.

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 visa lottery. From this group, roughly 50,000 winners are chosen to apply for permanent residence in the United States. Note that applying for the lottery may have an affect on your ability to get a temporary visa in the future. More information on the lottery is available at http://travel.state.gov/DV2005.html.

Teaching Positions

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 within a matter of months 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.

Conclusion

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:

www.cgfns.org. – Commission on Graduates of Foreign Nursing Schools (CGFNS) (providing information on CGFNS Certificates)

CGFNS has an automated voice response system to get current information on a pending application. The number is 215-599-6200.

www.ncsbn.org– National Council Licensure Examination for Registered Nurses (NCLEX-RN) (providing information on the NCLEX Exam)

The NCSBN offers NCLEX in all 50 states, Guam, Puerto Rico, DC, American Samoa, the US Virgin Islands, and the Northern Marianas Islands. They intend to start offering it at locations abroad next year. Results from the exam are usually available quickly after taking it.

www.ichp.org– International Commission for Health Care Professionals (ICHP) (providing information on obtaining VisaScreens)

www.jcvisa.com– TN (NAFTA) visas for Mexican or Canadian nurses – click on the temporary visa icon, and then select TN category. The web site also has general information about temporary and permanent categories of U.S. visas.

www.millermayer.com– This web site has useful general information about temporary and permanent categories of U.S. visas. It also has a whole section devoted to immigration options for foreign medical graduates.