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Letter to the Editor

Legislative: Nurse Immigration

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Greer Glazer, PhD, RN, CNP, FAAN
Legislative Editor

Citation: Glazer, G. (November 10, 2003).  Legislative: "Nurse Immigration." Online Journal of Issues in Nursing. Available: www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/Columns/Legislative/LegislativeColumnNurseImmigration.aspx

Editor’s note: Federal legislation has been proposed to relax nurse immigration standards in response to the nursing shortage in the United States. Proponents of the legislation argue that an influx of foreign-educated nurses would help to alleviate the nursing shortage and staffing crisis situation that exists in many hospitals and health care facilities throughout the United States. Opponents, including the American Nurses Association (ANA), are concerned about decreasing the standards for foreign-educated nurses, subjecting foreign-educated nurses to exploitation by employers, and the ethical implications of employing foreign-educated nurses when there are nursing shortages worldwide. Erin McKeon, associate director of government affairs at the American Nurses Association, has written an article that describes ANA’s opposition to the Rural and Urban Health Care Act. Included is a table comparing the current H-1C visa (P.L. 106-95) provisions with those proposed in H.R. 87 (Rural and Urban Health Care Act). Significant differences between the two mechanisms related to the length and limit of the visa, sunsetting, requirements of foreign-educated nurses, facilities eligible to sponsor foreign-educated nurses, facility attestation requirements and working conditions are clarified.

Federal Legislation to Relax Nurse Immigration Standards

Erin McKeon, Associate Director of Government Affairs
American Nurses Association

In the First Session of the 107th Congress, national associations representing hospitals and nursing facilities lobbied Congress for legislation to relax nurse immigration standards. These associations argued that nurse immigration offers an immediate response to the nursing shortage, and that current nurse immigration regulations are overly burdensome. Their efforts led to the introduction of the Rural and Urban Health Care Act, which would greatly expand the current H-1C temporary nurse visa. On March 6, 2003, the Rural and Urban Health Care Act (H.R. 87) was re-introduced in the new Congress. ANA opposed this bill in the last Congress and will oppose it again this year.

The H-1C visa was created by the Nursing Relief for Disadvantaged Areas Act of 1999 (P.L. 106-95). The Rural and Urban Health Care Act would remove many of the important safeguards that were intentionally built into the H-1C visa. Specifically, it would allow all providers employing nurses, including nurse registries, to petition for visas. The annual cap on the number of visas would be expanded to 195,000 per year. Foreign-educated nurses would be allowed to receive visas prior to passing the NCLEX and the requirements for CGFNS prescreening would be deleted (current legislative requirements include English proficiency testing, NCLEX predictor testing, educational curriculum reviews, and investigations of the petitioning nurse’s license in his/her home country). In addition, the bill would remove the requirement that facilities employing foreign-educated nurses only require these nurses to work hours commensurate with those of American nurses.

ANA is concerned about relaxing current restrictions on employment visas for nurses for a number of reasons. While ANA recognizes and supports the fundamental right of individuals to move and migrate, this fundamental right can also be taken advantage of by an industry wanting to avoid the real issues that are contributing to the overall nursing shortage. In addition, we know from history that the "short term" solution often becomes the long term solution, and necessary policy changes to address the true contributing factors to shortages are delayed or never adopted.

ANA is particularly concerned that the Rural and Urban Health Care Act would remove important safeguards needed to ensure that alien nurses are not exploited by their sponsoring employers. The issuance of visas prior to state licensure, and the relaxation of prescreening requirements harkens back to the time when nurses were brought into the U.S. only to fail the NCLEX. Often, these nurses would be employed as lower-paid nurses’ aides. The removal of the requirement that foreign-educated nurses work hours similar to American nurses is especially troubling given current problems with the use of mandatory overtime.

In addition to the practical effect of delaying the implementation of real solutions to our domestic situation, ANA is especially concerned about the ethical implications of this legislation. There is now a worldwide shortage of registered nurses. The prospect of aggressive recruitment, particularly in developing nations where a dwindling number of nurses are the mainstay of an already inadequate and overburdened health system, is unacceptable.

ANA is working to educate Members of Congress about our concerns with the Rural and Urban Health Care Act. ANA maintains that health care providers should not look overseas for nurses when the real problem is that the U.S. health care industry has failed to maintain a work environment that is conducive to safe, quality nursing practice and that retains experienced American nurses in patient care.

H-1B Visa

The debate over the H-1C visa may become moot given the recent move by the Administration to encourage the use of the H-1B temporary work visa for temporary nurse immigration. As reported in Nursing World last December, the Immigration and Naturalization Service (INS) recently clarified their approach to the H-1B visa. The H-1B is primarily used by high-tech industries to bring specialists into the country (computer engineering, telecommunications, etc.). Only occupations that require a bachelor’s degree as a common entry to the profession are eligible for the H-1B. Because most foreign-trained nurses have not received a bachelor’s, and because there is no common requirement for a bachelor’s degree for entry into the nursing profession, the INS has traditionally denied most requests for H-1Bs for nurses.

However, on November 27, 2002, the INS issued guidance detailing how the H-1B may be used for certain types of RNs. Specifically, advanced practice registered nurses (practitioners, CNS, midwives, etc.) and staff nurses expected to be employed in the state of North Dakota will now be eligible for the H-1B visa. In addition, certain specialties such as critical care, ER, and OR may also qualify.

ANA is concerned that this new guidance may result in the increased use of temporary visas for foreign-educated nurses. ANA has contacted the state nursing associations to ask them to monitor the use of the H-1B visa for recruitment of nurses.

Comparison of Current H-1C Temporary Nurse Visa Authority
and Proposals in the 108th Congress
  Current H-1C Visa (P.L. 106-95) H.R. 87 (Rural & Urban Health Care Act)
Length of Visa 3 years. An initial period of 3 years that may be extended to a total of 6.
Limit on Visas 500 per year. States with populations fewer than 9 million are limited to 25 visas per year, states with populations greater than 9 million are limited to 50. 195,000 per year.
Sunset 4 years after promulgation of regulations. No clear sunset.
Requirements of Alien Nurses Requires that the alien have the following:
  • an active and unrestricted license to practice in a foreign nation or a degree from a U.S. school of nursing.
  • a CGFNS certificate or a full, unrestricted license in the state of intended employment.
  • full qualifications and eligibility to work in the petitioning facility immediately upon admission to the U.S.

Requires CGFNS certificate to include written and spoken English proficiency testing, a review of the alien’s nursing curriculum, a NCLEX predictor exam, and a review of the alien’s license in the home country.

  • Recognizes a degree from a Canadian school of nursing to be the same as a degree from a U.S. school of nursing.
  • Allows the alien nurse to take the NCLEX after entry into the U.S., stipulates that the alien may only take the NCLEX twice. Failing these, the visa is terminated and the nurse is required to leave the country.
  • Rescinds legislative requirements defining what the CGFNS certificate must include (e.g. English proficiency testing, review of nursing curriculum, review of home nursing license and the NCLEX predictor exam).
Facilities Eligible to Sponsor Alien Nurses Hospitals that:
  • were located in health professional shortage area as of March 31, 1997.
  • have fewer than 190 acute care beds.
  • serve a population consisting of a large percentage of Medicare (35%) and Medicaid (28%) beneficiaries.
  • have instituted a program to recruit and retain American nurses, including support for nurse training, career development programs, and competitive wages.
  • have an RN workforce comprised of less than 33% foreign-trained nurses.
Any hospital, nursing home, skilled nursing facility, registry, clinic, assisted-living center, or employer who employs RNs in a home setting.
Facility Attestation Requirements
  • Facility files attestation with the Department of Labor (DOL) stating that the facility meets the working conditions described below and is eligible to sponsor an alien nurse.
  • The DOL must establish a process to investigate the attestation.
  • Secretary must investigate if there is "reasonable cause" to believe that the facility fails to meet the conditions attested to.
  • Secretary may impose fines if the facility has "failed to meet a condition attested to" or there was a misrepresentation of fact.
  • Attestation is valid for one year.
  • Adds a requirement that the DOL only review the attestation for "completeness and obvious inaccuracies" and requires the DOL to certify attestations that do not have obvious problems within 7 calendar days.
  • Raises the threshold for the imposition of fines from "failed to meet" to "willfully failed to meet" and from "misrepresentation" to "willful misrepresentation."
  • Attestation is valid for 3 years.
Working Conditions Facility must:
  • provide the alien a wage rate and working conditions commensurate with those of nurses similarly employed.
  • limit alien’s schedule to hours commensurate with similarly employed nurses.
  • not interfere with ability of the alien to join a union.
  • not be involved in a strike or lock-out.
  • not have laid off any RN employed at the facility for a period beginning 90 days before and ending 90 days after the filing of the attestation.
  • not be employing the alien nurse to influence an election for a bargaining representative.
Deletes requirement that aliens must work hours similar to American nurses.

Importantly, the ability of registries to employ alien nurses would also make it possible for facilities to circumvent the other workplace protections included in the H-1C.

THE AUTHOR

Greer Glazer, PhD, RN, FAAN
Director, Parent Child Nursing
College of Nursing
Kent State University
Kent, OH 44202
E-mail Address: GGlazer@kent.edu

Dr. Glazer is Professor and Director of Parent Child Nursing at Kent State University College of Nursing. Besides her many research activities in the field of women's health and stress, Dr. Glazer is the chair of ANA-PAC, the political arm of the American Nurses Association. She is currently the legislative liaison to congressman Steve LaTourette and has previously been on health care committees at the state and national level. Locally, she serves on the Board of Cuyahoga County (Ohio) Children's Trust Fund and recently completed four years on the Health Care Committee allocation panel for the United Way in Cuyahoga County. Dr. Glazer is also currently a Robert Wood Johnson Executive Nurse Fellow.


© 2003 Online Journal of Issues in Nursing
Article published November 10, 2003

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