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Below you will find the most frequently
discussed visas in the context of foreign nurse
recruitment. To recruit
foreign nurses from oversees, refer to 'EB-3: Permanent Immigrant Visa ("Green
Card") based on Employment'.
To recruit Canadian or Mexican nurses, refer to 'NAFTA (TN) Visa'.
Last
updated: February 7, 2005
Nurses
from other countries who wish to work in the United
States must obtain a visa with work authorization
from
the Bureau of
Citizenship and Immigration (BCIS), a former branch
of Immigration & Naturalization Service (INS).
A U.S. employer must submit an application to BCIS
for a foreign nurse.
Work visas can be permanent (or immigrant) or
temporary (non-immigrant).
Immigrant visas are issued to
persons who want to live permanently in the U.S., and who meet
BCIS requirements. Applicants for immigrant
visas must meet the requirements of 1 out of 10 categories or
"preference" groups of permanent visas. Five preference categories are
based on family relationships and five are based on employment.
Foreign registered nurses fall under the category three: professional
and skilled workers (visa type E-3).
Registered Nurses and Physical
Therapists are listed as shortage, or "Schedule A" occupations, by the U.S.
Department of Labor (DOL). An employer who wishes to immigrate a foreign RN is
exempt from having to submit an application for alien labor certification to the
DOL or to a State Employment Security Agency.
Note: Schedule ‘A’ is a list of occupations, set forth at
Section 656.10 , for which the Department of Labor has determined there
are not sufficient U.S.
workers who are able, willing, qualified and available. Schedule
‘A’ establishes that the employment of aliens in such occupations will not
adversely affect the wages and working conditions of U.S. workers similarly
employed.
U.S. employers can request
Premium Processing Services (note that this service is offered
for temporary visas only).
The fee for this
service is $1000.
In other words,
the Form I-140
must be accompanied by the DOL formsETA-750 A and Band submitted along with required $135.00 fees to the
appropriate BCISServiceCenter. Thus, the labor certification form is
still required but it no longer needs to be certified/approved by the DOL.
In order to satisfy the Form I-140 requirements, the following
qualifying criteria apply to employers:
The
employer must hire the foreign worker as a full-time employee.
There must be a
bona fide job opening.
Job requirements must adhere to
what is customarily required for the occupation in the
U.S.
and may not be tailored to the worker's qualifications.
The
employer must pay 95% of the
prevailing wage for the occupation in the
geographic area of
intended employment (geographic area is equal to average normal commuting
distance to the job site).
Aliens with at least two years of experience as skilled workers;
Professionals with a baccalaureate degree; and
Other workers with less than two years experience, such as an unskilled
worker who can perform labor for which qualified workers are not available in
the United States.
EB-3 is a
permanent immigrant visa based on employment (permanent immigrant visas are
colloquially called "green card"). The applicant is eventually eligible
for U.S. citizenship. If married to a U.S. citizen, alien becomes eligible in 3
years, for everyone else, eligibility is established after 5 years.
Limitations: up to 40,000
employment-based immigrant
visas can be issued
worldwide annually.
Section 201 of the Immigration and Nationality Act (INA) sets
the worldwide level for annual employment-based
preference immigrants is at least 140,000 (an
annual minimum family-sponsored preference limit of 226,000).
Section 202 prescribes that the per-country limit for preference
immigrants is set at 7% of the total annual family-sponsored and
employment-based preference limits, i.e., 25,620 (the
dependent area limit is set at 2%, or 7,320).
For Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide
level or 40,000 in total, plus any numbers not
required by first and second preferences, not more than 10,000 of which to
"Other Workers."
Upon approval of the immigrant petition, the BCIS will generally
send a
Notice of Approval (I-797)
to the applicant and will also notify the U.S. State Department's
National Visa Center
(NVC), who will then also contact the nurse
candidate by mail, providing the nurse with an immigrant
number as well as instructions on how to apply for an immigrant visa at a
U.S. Consular Post (Consulate/Embassy).
NVC also forwards information
to a U.S. Consulate
to schedule interview with the nurse applicant.
There is a usually about a 3-week delay between
between the Notice of Receiptfrom
the NVC and the Notice of Approval from the
BCIS.After submitting the immigrant visa application to the U.S. Consulate
in their home country,
a foreign nurse awaits the immigrant visa interview at the U.S. Consulate.
Note:
A nurse candidate or their representatives are advised to maintain consistent
and prompt communication with the U.S. immigration authorities by replying to
all received letters (even if not required) and supplying abundance of related
documentation. Any documentation that can possibly be related to the process of
immigration in favor of the nurse, must be attached, even if it were not
required in the first place. A good check list of all submitted documents must
be provided with each letter. The letter must contain the date, "regarding"
info, case number, full contact info, an envelope with a pre-paid stamp and a
return address, and a clear and well written message. As a rule, the number one
reason for delays in the immigration process is insufficient, unclear (open for
further questions) or incomplete application information. When it comes to
immigration, the more attached documents, the better.
STEP 3: Consular Post
Processing & Green Card Issuance
After the immigration petition is filed with the BCIS,
but before obtaining permanent residency approval (immigrant
visa) at a U.S. Consulate abroad, a
foreign nurse must obtain a VisaScreen Certificate.
The consular process takes about 6 months. It includes presentation of
the
CGFNS VisaScreen certificateand the
medical exam results and to a U.S. embassy/consulate. If applicable, spousal or child visa
processing also takes place at this stage. Consular fees are $350.
The process may take from two to six months.
Note:
An immigration
officer at a U.S. Consulate abroad has the right to refuse an applicant a visa,
based on the interview with the applicant. Should this happen, neither BCIS
nor NVC will have any influence or power over this decision. The appeal must be
filed with the same U.S. Consulate who refused the visa in the first place.
Foreign nurses and their
family enter the U.S. and are processed for
"green cards".
A foreign nurse
should submit the following:
Form I-485,
Application to Register Permanent Residence
or to Adjust Status.
Fee of $255 apply.
Copy of
your I-797, Notice of Action, showing that
the Form
I-140, Immigrant Petition for Alien
Worker, has been received or approved by INS.
Note:
As of July 31, 2002, an
interim rule was published in the
Federal Register which allows for concurrent
filing of Form I-485 with Form I-140, if
a visa number is immediately available.
I-693, Medical Examination of Aliens
Seeking Adjustment of Status.
All
adjustment applicants must submit a medical
exam report (including proof of vaccination
requirements) from a BCIS-designated civil
surgeon. Later, there will also be a
fingerprinting procedure.
All
required supporting documentation as listed
on the forms.
Foreign nurses' spouses must fileForm I-765 (Application for Employment
Authorization) to be able to work in the
United States. As of May
29, 2003, the Form I-765 can be filed online!
$120 fees apply.
Final Employment
Authorization happens when
a nurse candidate completes
Form I-9 and
starts work with healthcare institution.
No filing of this form
with the Bureau of Immigration and
Customs Enforcement (ICE)
is required. The
form must be kept by the employer either for
3 years after the date of hire or for
one
year after employment is terminated, whichever
is later. The form must be available for
inspection by the authorized U.S. Government
officials (i.e., ICE,
Department of Labor). There
are penalties for violation.
The overall process of obtaining permanent immigration based on employment may take
from a few months to 3 years (usually 10-12 months),
depending on the nationality of the nurse and whether or not the immigrant
quota from the nurse's country of birth is backlogged.
Under the
North American
Free Trade Agreement (NAFTA), Canadian and Mexican citizens may enter the United
States temporarily to work in many of the major medical and scientific professions,
including RNs, physical therapists, occupational therapists, and nutritionists.
TN visas are issued for one-year periods and are renewable for multiple one-year
periods.
A Canadian nurse who has supporting documentation can apply at the border point
of entry or to an airport pre-flight inspection officer. If the TN visa is
approved, the Canadian nurse is issued the standard “Form I-94,
Arrival/Departure Record.” There is no requirement for the nurse to hold a
Bachelor’s degree, nor is there a requirement that the position for which the
Canadian applicant is coming require such a degree. Under NAFTA, Canadian nurses
only have to take and pass the National Canadian Nursing Examination (NCLEX-RN)
or Graduates of Foreign Nursing Schools (CGFNS) Qualifying Examexamination and receive English instructions/classes during their schooling.
Check what states allow Canadian nurses to get licensed by endorsement.
However, Canadian nurses applying
for a permanent immigrant visa must go through the same process as all
foreign-education nurses, which means obtaining a Commission on CGFNS VisaScreen certificate, passing the NCLEX-RN exam, and, if
from Quebec, passing the English language exams. Additionally, Canadian nurses
would need comply with the licensure requirements of the state of their
prospective employment.
In some states, Canadian nurses
are issued a limited permit without being required to submit their NCLEX-RN to
CGFNS or submit to the CGFNS certification process. A new permit authority
are modeled after the new graduate permit requirement, i.e., the permit holder
must work under the direct supervision of an RN and the permit would be valid
for a limited period of time. Certain states, including Connecticut, Florida,
Maine, Massachusetts, Michigan, Minnesota, New Hampshire, Pennsylvania, and
Vermont are doing this for both Canadian and out-of-state licensed RNs.
Note: There are also a number of compact states that share licensure.
Nursing Licensure Compact States (15 participating and 6 pending, as of
April 2003).
3. They have proof of Canadian citizenship; and
4. They pay a US $56.00 fee to enter the United States (payable at the
U.S. border).
TN visa may be renewed on a yearly basis either by having the nurse re-enter
the U.S. with the documents listed above, or by requesting an extension of TN
status from a BCIS Service Center.
Note that a TN nurse is not supposed to have any intention of remaining permanently
(immigrating) in the
U.S., only as a temporary worker. This question may be asked by an immigration
or border patrol officer at a U.S. border.
In other words, Canadian nurses can obtain
TN visas (TN-1) at the U.S. border, for US $56, if they have a letter from a U.S.
employer (including a travel company) offering them a job. The nurse will also
need a transcript, degree, U.S. license, and passport.
In the past, for
Mexican RNs the procedure was considerably more complex than for Canadian RNs.
Mexican RNs
must apply for a TN visa at a U.S. Consulate in Mexico, having received proper
support documentation from their prospective U.S. employers
(the process resembleed H-1B permanent immigrant visa).
As of this has changed, and Mexican nurses are
now treated the same way as Canadian nurses.
Jointly Prepared
by The Commission on Graduates of Foreign
Nursing Schools (CGFNS) & The National Council
of State Boards of Nursing (NCSBN)
Philadelphia, PA
- January 20, 2005 - The final rule implementing
Section 343 of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) of
1996 became effective on September 23, 2003.
This rule requires that Canadian nurses entering
the United States to work under Trade NAFTA or
applying for a temporary or permanent
occupational visa must obtain a VisaScreen™
Certificate. To date, CGFNS is the only
recognized entity to provide such services by
the U.S. federal government. The final rule
allowed for a transition period during which the
Canadian nurse must obtain the VisaScreen™. That
transition period ended on July 25, 2004.
However, the Department of Homeland Security has
provided an extension of that deadline for
health professionals working under Trade NAFTA
who were employed and licensed in the U.S. prior
to September 23, 2003. The new deadline for
healthcare professionals who qualify is July 26,
2005.
Here are the
VisaScreen™ requirements applicable to foreign
nurses:
If licensed by
examination in a U.S. state or territory then
general nursing school transcripts and valid
and unencumbered foreign and U.S. licenses
must be submitted by the foreign institution
to CGFNS. Passing scores in oral and written
English exams (administered by ETS or IELTS)
must also be submitted, unless the general
nursing education was obtained in a
professional school located in Australia,
Canada (except Quebec), Ireland, New Zealand,
Trinidad, Tobago (in limited circumstances),
the United Kingdom, or the United States.
If licensed by
endorsement in a U.S. state or territory
without passage of the NCLEX®, examination,
then the temporary foreign nurse must also (in
addition to the above requirements) pass
either the NCLEX® or the CGFNS Qualifying
Exam.
The H-1B is a non-immigrant classification
used by an alien who will be employed temporarily in a specialty occupation or
as a fashion model of distinguished merit and ability.
A specialty occupation requires theoretical
and practical application of a body of specialized knowledge along with at
least a Bachelor’s degree or its equivalent. Ordinarily, 3 years of work
experience equal to one year of university education.
Note: The job description should say Bachelor's degree is required,
but then employer can decide that an associate degree (or 2 years of
college) and six years of experience is equivalent to a four-year university
degree.
Examples of specialty occupations include the following:
architecture, engineering, mathematics, physical sciences, social sciences, medicine and health
(physicians, nurse practitioners, nurse managers,
and other advancedpositions),education, business specialties,
accounting, law, theology, and the arts.
H-1B status requires a sponsoring U.S.
employer. The employer must file a labor condition application (LCA) with the
Department of Labor attesting to several items, including payment of
prevailing wages for the position, and the working conditions offered. The
employer must then file a Form I-129 petition plus accompanying fee of $130
with the BCIS and, unless specifically exempt under the law, an additional
$1000 fee to sponsor the H-1B worker. Based on the BCIS petition approval, the
alien may apply for the H-1B visa, admission, or a change of non-immigrant
status.
The BCIS
will occasionally approve H-1B visas for registered nurses, however, only
when the following conditions are met:
shown
that the foreign nurse will be employed in a supervisory role, (yet, most
facilities cannot justify the need for multiple nurse supervisors, or
justify hiring a foreign nurse with no experience practicing in the U.S.
healthcare system to supervise other U.S. workers, many of whom are
registered nurses);
the petitioning facility
has shown that it has historically only employed registered
nurses with four-year degree, and that a registered nurse with a two-year degree
is unable to perform the minimum job duties.
Note: The
Immigration Service has requested excessive documentation to prove that
these facilities have only hired
nurses with four-year degree, including copies of every degree and transcript for every nurse ever
employed at the petitioning facility. Unfortunately, most U.S. health care
facilities have hired registered nurses with a two-year degree at some point in their
history and therefore do not qualify to petition a registered nurse for an H1-B
visa under this category.
Moreover, even if a health care facility can qualify a
registered nurse for an H-1B visa in any of the two above examples, because of
the uneven adjudication process at the Immigration Service, filing these types
of visa applications has become a long shot.
A
CGFNS VisaScreen Certificate is required for each H-1B nurse
applicant. This does not include licensure requirements in individual
states, which H-1B nurses must also satisfy.
An H-1B recipient can be the beneficiary of an immigrant visa petition,
apply for adjustment of status, or take other steps toward Lawful Permanent
Resident (LPR) status without affecting H-1B status. This is known as "dual
intent" and has been recognized in the immigration law since passage of
the Immigration Act of 1990. During the time that the application for LPR
status is pending, an alien may travel on his or her H-1B visa rather than
obtaining advance parole or requesting other advance permission from
Immigration to return to the U.S.
The H-1B visa is granted for up to 3 years
and is renewable for 3 more. A total of 6
years is the maximum allowable period of stay in the U.S. under H-1B status.
In 2002 and 2003, the number of aliens who
can be issued a visa is 195,000. In 2004, the number of aliens who can be
issued an H-1B visa or be provided H-1B status otherwise will revert to
65,000. The H-1B quota runs on the federal government's fiscal year, which
begins on October 1 and ends on September 30.
The Nursing Relief for Disadvantaged Areas Act of 1999
(NRDAA) allows qualifying hospitals to employ temporary foreign workers
(non-immigrants) as Registered Nurses at hospitals in federally-designated
Health Professional Shortage Areas, for up to three (3) years under H-1C visas.
Only 500 H-1C visas can be issued each year during the four year period of
the H-1C program (2000-2004). The sponsoring employer must pay a filing fee
of $250 for each application filed with the Department of Labor (DOL). H-1C
nurses may be admitted for a period of three years; thus far, the law does not
provide for an extension of that time frame. NRDAA requirements expire on August
22, 2004.
Among other NRDAA requirements, a facility must also attest
that it can prove the following:
it is a hospital with a
minimum of 190 acute care beds;
it is a hospital with a minimum of 190 acute
care beds;
at least 35% of its
patients are covered by Medicare; and
at least 28% of its
patients are covered by Medicaid.
The U.S. Department of Labor
(U.S. DOL) has estimated that nationally,
only 14 hospitals in the entire
country are eligible to
participate in the program. In order to avoid employment-based visa caps, a method of
permanent immigration is preferred (Form I-140).
The H-2B visa category is for
persons who are coming to work in positions that are temporary, such as seasonal
intermittent work. H-2B visas are frequently used for employment at resorts, ski
areas or for other employment that will not last longer than one year.
Hospitals cannot generally use the H-2B visa to fill vacancies.
Foreign students who have
completed at least 12 months of education at a U.S. university are usually
entitled to up to 12 months of "optional practical training" after graduation,
to gain U.S. work experience before returning to their home country.
A graduate with a recent
Bachelor of Science of Nursing Degree (B.Sc.N.) from a U.S. university could be
eligible to work for up to 1 year for any U.S. healthcare employer. Minimal
paper work is required for a foreign student to be authorized to work under an
F-1 visa. A foreign graduate of a U.S. nursing school could go to work for a
healthcare institution following graduation as soon as the required licensing
procedures are completed.
Use of this category buys a
healthcare employer time to complete the paperwork required to obtain work
authorization for the foreign nurse using a different visa type.
