THE ABC'S OF IMMIGRATION - H-1 C VISAS FOR REGISTERED NURSES

Late in 1999, Congress passed the Nursing Relief for Disadvantaged Areas Act, which calls for the creation of a new H-1C visa for nurses going to work for up to three years in health professional shortage areas.  Up to 500 nurses per year can get the visa, but each state is limited to 25 H-1C nurses a year.  Under the law, facilities interested in sponsoring nurses for H-1C visas must submit a document containing a number of attestations regarding the employment of H-1C nurses.

As with most immigration laws, the statute itself provides very little guidance on how the law will be applied, leaving it to the INS (and in most employment visa cases the Department of Labor as well) to develop regulations.  The regulations for the H-1C program were released by the Department of Labor last summer, and became effective in September 2000.  While the regulation is currently effective, because it was released as an interim regulation, parts of it could change after the Department of Labor reviews the public comments that it received in response.

One of the most surprising elements of the Labor Department’s regulations is a DOL finding that based on the restrictive definition of “facility” Congress put in the statute, only fourteen hospitals in the country could be initially determined to qualify to apply for H-1C visas.  These facilities are:

1.  Beaumont Regional Medical Center, Beaumont, TX
2.  Beverly Hospital, Montebello, CA
3.  Doctors Medical Center, Modesto, CA
4.  Elizabeth General Medical Center, Elizabeth, NJ
5.  Fairview Park Hospital, Dublin, GA
6.  Lutheran Medical Center, St. Louis, MO
7.  McAllen Medical Center, McAllen, TX
8.  Mercy Medical Center, Baltimore, MD
9.  Mercy Regional Medical Center, Laredo, TX
10.  Peninsula Hospital Center, Far Rockaway, NY
11.  Southeastern Regional Medical Center, Lumberton, NC
12.  Southwest General Hospital, San Antonio, TX
13.  St. Bernard Hospital, Chicago, IL
14.  Valley Baptist Medical Center, Harlingen, TX

The DOL recognizes that other facilities might qualify, but have simply not been identified at this time.

The attestation process is being administered by the Employment and Training Administration at the Department of Labor.  Enforcement of the attestations is being overseen by the Employment Standards Administration’s Wages and Hours Division.

The 1999 law is very similar to a 1989 law that created the H-1A visa for nurses.  That visa category expired several years ago after unsuccessful efforts to extend its life.  The key differences between the two programs are that a much smaller number of H-1C visas have been allocated and that the facility where the nurse will work must be in a health professional shortage area.  There are also new requirements limit a facility’s dependence on H-1C nurses (something that is hard to imagine given that only 500 H-1C nurses permitted into the country each year, with no more than 25 allowed to work in a single state).

The Department of Labor has created a new attestation form called the ETA 9081. On the form, the facility must attest to the following:

1.  That it is a qualifying facility.  If the ETA 9081 is the first one being filed by a facility, then the form must be accompanied by copies of the pages from the paperwork filed with the Department of Health and Human Services showing the number of acute care beds and the percentages of Medicaid and Medicare reimbursed acute care inpatient days.  A copy of this paperwork must also be kept in a public access file.

2.  That the employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses.

3.  That the facility will pay the H-1C nurse the facility wage rate.

4.  That the facility has taken and is taking timely and significant steps to recruit and retain nurses in order to reduce dependence on immigrant nurses.  At least two such steps must be taken unless it can show that the second step is not reasonable.  Documentation of these steps needs to be included in the facility’s public access file for H-1C nurse petitions.  Steps which may be taken can include:

a.  Operating a training program for registered nurses at the facility or financing or providing participation in a training program elsewhere.

b.  Providing career development programs and other methods of facilitating health care workers to become RNs.

c.  Paying registered nurses wages at a rate at least 5% higher than the prevailing wage for the area.

d.  Providing reasonable opportunities for meaningful salary advancement by registered nurses.

e.  Any other steps that would be considered significant efforts to recruit and retain nurses.

5.  That there is not a strike or lockout at the facility, that the employment of H-1C nurses is not intended or designed to influence an election for a union representative at the facility and that the facility did not lay off and will not lay off an RN within the 90 day period and 90 day period after the date of filing an H-1C petition.

6.  That the employer will notify other workers and give a copy of the attestation to every nurse employed at the facility within 30 days of filing. E-mail attachments are acceptable.

7.  That no more than 33% of the nurses employed by the facility will be H-1C nonimmigrants.

8.  That the facility will not authorize H-1C nonimmigrants to work at a worksite not under its control and will not transfer an H-1C nurse from one worksite to another.

The paperwork must also be accompanied by a 0 filing fee.  After the Attestation is approved by the Labor Department and used in support of an H-1C petition approved by the INS, the employer is required to send a copy of the H-1C petition and INS approval to the Labor Department.  Also, as noted above, the employer must create a public access file that includes the Attestation and its supporting documentation.  The file must be produced for any interested party within 72 hours upon written or oral request. 

At this point, while a facility can be approved to use the H-1C visa program, because the INS has not yet released its regulations for the program, the visas are not yet being issued.