Taking Care of the Nurses Who Take Care of Us: The Schedule A Green Card Process
By Adam Cohen
Nurse immigration is a puzzling area of immigration law, given the irony of very limited temporary statuses for nurses, contrasted with an excellent green card option for nurses of most, but not all, nationalities. This article will focus on what is known as the Schedule A green card, the primary means to bring a foreign nurse to the United States.
To understand the popularity of this green card, one must be aware of the current landscape of temporary statuses for nurses. In 1995, the H-1A visa category for professional nurses expired. Later, in 1999, the H-1C category was created to allow a limited number of foreign nurses to serve temporarily in hospitals in health professional shortage areas. However, this category had very narrow requirements and a numerical limitation of 500 H-1C visas per year. Thus, it was of little utility, and has since expired as of December 20, 2009. The very common H-1B status is typically not available to foreign nurses, given that most nurse positions do not require the attainment of a four-year degree, and therefore cannot meet the specialty occupation requirement for H-1B status. There are H-1B options for Advanced Practice Registered Nurses (APRN), nurse practitioners, supervisory nurses and some other specialized nurses, but most registered nurses are left out of this category. Foreign nurses who have received their education in the U.S. can receive 12 months of optional practical training (OPT) on the F-1 student visa, but no STEM OPT extensions are possible, because the health sciences are not included in the STEM fields. Then there is the TN (Trade NAFTA) status, which is a great option, but only for Canadian and Mexican registered nurses. This landscape leaves foreign nurses, many of whom have trained in the U.S. and made a life in the U.S., in a very uncertain position as to how to work here.
There is a large shortage of nurses in the U.S., and the demand for foreign nurses continues to rise, but if one were to solely focus on the dearth of temporary immigration options for nurses, this reality would not be readily apparent. Fortunately (and ironically), the U.S. Department of Labor (DOL) has confirmed this shortage and determined that there are not sufficient U.S. workers who are able, willing, qualified, and available for the occupation of professional nurse. Registered nurses are listed on Schedule A, Group 1, which means that RNs are able to file I-140 immigration petitions without the employer having to go through much of the standard and very lengthy PERM labor certification process, namely fulfilling advertising and recruitment requirements to assure the DOL that there are no qualified U.S. workers available for the position. Note that the RN precertification does not include licensed vocational nurses (LVNs), licensed practical nurses (LPNs), certified nurse assistants (CNAs), or nurses’ aides.
The Schedule A green card process begins with settling upon the job duties and requirements for the registered nurse position. This job description will form the basis of the Application for Prevailing Wage Determination (ETA Form 9141) filed with DOL. Once DOL makes a determination about the proper wage for the position, the employer must physically post at the workplace a Notice of Filing (containing information about the position, the salary for the position, and notice that a labor certification application is being filed with respect to the position). If the employer has in-house media, such as an intranet, the Notice of Filing must be posted there as well. The Notice is posted for at least 10 consecutive business days, excluding weekends and holidays. If there is a bargaining representative involved, the process is a little different.
The next step is to prepare and file the I-140 petition. Some of the common items submitted with the petition are the following:
- Government filing fee of $580. If premium processing (15 calendar day processing) is desired, there is an additional $1225 government filing fee.
- Two copies of the Form ETA-9089 with original signatures.
- Copy of the Notice of Filing and copies of all in-house and intranet postings.
- DOL’s prevailing wage determination.
- Evidence of the employer’s ability to pay the nurse’s salary. Common evidence of ability to pay is the employer’s recent tax return, an audited financial statement, or an annual report with financial information provided.
- Commission on Graduates of Foreign Nursing Schools (CGFNS) certificate, current unrestricted nursing license from the state of intended employment, orNational Council Licensure Examination for Registered Nurses (NCLEX-RN) pass letter for any state.
- VisaScreen Certificate (not required for the I-140 petition, but it must be submitted when requested, filed with the I-485 application, or presented at the consular interview). The VisaScreen Certificate verifies that the nurse’s education, training, licensing, experience, and English competency are comparable to American health care workers. Currently, the International Commission on Healthcare Professions (ICHP), a division of the Commission on Graduates of Foreign Nursing Schools (CGFNS), is authorized to issue certificates to nurses. The VisaScreen Certificate is a separate requirement from the CGFNS certificate noted above.
- Nursing diploma and nursing transcript showing two years of post-high school nursing education.
- Nursing license from the country of nursing education, if licensed.
- Resume
The final step is the filing of the I-485 adjustment of status application if the nurse is within the U.S. Otherwise, the nurse will have to file an Immigrant Visa application and process the application through the U.S. embassy or consulate in his or her home country or country of residence. The filing of such applications depends upon the U.S. Department of State’s Visa Bulletin, which tracks when the intending immigrant has a visa immediately available, such that the green card process can be completed. Registered nurses will commonly fall under the EB-3 (Employment-based third) preference. According to the April 2016 Visa Bulletin, priority dates are almost current for most countries, resulting in practically no delay in the intending immigrant’s ability to file the I-485.
The disclaimer is that nationals of China, India, and the Philippines face extremely long visa backlogs at the EB-3 level, making nurse immigration out of reach for most nationals of these countries. Again, given the demand for foreign nurses in this country, this is not a situation that should exist. Hopefully, reform will come to the nurse immigration area, allowing more options in the temporary status/nonimmigrant context, especially for those nationals of backlogged countries.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.