I.OVERVIEW

The serious nursing shortage nationwide has forced many healthcare services providers to fill their staffing needs with qualified professionals from outside the United States. This memorandum outlines what we consider to be the best options for a foreign national to secure temporary or permanent employment as a registered nurse (RN) in the United States. Each option involves the successful completion of both U.S. Immigration and Naturalization (INS) and state law requirements

II. NONIMMIGRANT (TEMPORARY) H-1B VISAS
LIMITED USAGE

The serious nursing shortage nationwide has forced many healthcare services proThe H-1B visa is used to hire a skilled professional who possesses at least a bachelor’s degree in the specialty area and is filling a position requiring the same level of education.

Most RNs and nursing jobs do not meet this requirement. However, if the U.S. employer is hiring foreign nurses for supervisory or management positions, or for sub-specialty areas which require a bachelor’s degree, an H-1B might be an option. Additionally, if the employer hires nurses with bachelor’s degrees almost exclusively, it is possible to make a case for using the H-1B to bring in more such nurses whose duties actually require such a high level of specialized knowledge.

The normal processing time for an H-1B visa is approximately 4 to 6 months. Alternatively, the employer may pay an additional INS fee for “premium processing”, which takes 15 days. The visa is valid for 3 years, and is renewable for another 3 years.

SPECIAL DOCUMENTATION FOR H-1B PETITION

• A photocopy of the alien’s currently valid, unrestricted license to practice nursing in the state of intended employment;
• A photocopy of the alien’s nursing degree and corresponding transcript(s);
• Photocopies of the first 3 pages of the alien’s passport;
• An English translation of any materials not readily understood by an English reader,such as dual-language nursing degrees which leave important terms untranslated into English.
• A list of those of the alien’s proposed job duties which are specialized and complex enough so as to require a minimum of a bachelor’s degree; and
• A list of any administrative or managerial duties the alien will have.

III. IMMIGRANT (PERMANENT RESIDENCY) VISA
LABOR CERTIFICATION NOT REQUIRED

As a professional in a so-called “Schedule A” occupation (i.e., pre-certified by the U.S. Department of Labor) , the RN is exempt from the individual labor certification process. This means that the immigration process for an RN has only two basic steps. First, the employer files an I-140 Immigrant Petition for Alien Worker with the appropriate INS Regional Service Center (RSC). Second, the alien, if abroad, applies for permanent residency at the U.S. consulate having jurisdiction over his or her residence. If the alien is in the United States, he or she files an I-485 Application to Adjust Status with the RSC.

SPECIAL DOCUMENTATION / PROCESSING TIME FOR I-140 PETITION

• Photocopies of the alien’s nursing degree and corresponding transcript(s); and
• A photocopy of the alien’s authentic and unencumbered nursing license issued by the home country (if educated outside the United States); and either
• A photocopy of the alien’s Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate (which includes a credentials review, a nursing exam and the Test of English as a Foreign Language [TOEFL] exam) or
• A photocopy of the alien’s currently valid, unrestricted licence to practice nursing in the state of intended employment.

No temporary permit or temporary license need be filed with the petition. The temporary or interim licensing may be obtained immediately after the alien enters the United States and registers to take the National Council Licensure Examination (NCLEX) for permanent licensure.

The employer should allow at least 6 months for the I-140 approval.

SPECIAL DOCUMENTATION FOR CONSULAR PROCESSING OR ADJUSTMENT OF STATUS: THE VISASCREEN CERTIFICATE

In addition to the CGFNS Certificate, U.S. immigration law now requires that healthcare professionals, other than physicians, complete a screening program in order to qualify for certain occupational visas. The International Commission on Healthcare Professionals (ICHP), a division of CGFNS, will issue a VisaScreen Certificate when the ICHP has determined that the nurse’s education, licensure and training in the foreign country are equivalent to education, training in the United States, and that the nurse’s level of competence in oral and written English are at a level appropriate to practice nursing in the United States.

The application packet for VisaScreen: Visa Credentials Assessment is available online at: www.cgfns.org

CONSULAR AND ADJUSTMENT OF STATUS PROCESSING TIMES

Consular processing times vary widely from consulate to consulate. For example,depending upon the consulate in India, an alien who has demonstrated that the VisaScreen requirements have been met and is otherwise eligible may wait anywhere from 9 to 12 months to be issued the immigrant visa.

Under current law, an alien (as well as each immediate derivative family member) already lawfully present in the United States in an appropriate nonimmigrant status may file an I-485 Application to Adjust Status with the RSC simultaneously with the I-140 petition. The alien and each eligible family member may also include I-765 Applications for Employment Authorization and I-131 Applications for Travel Document with the concurrent I-140/I-485 filings.

The RSC normally issues an Employment Authorization Document (EAD) in 90 days.The employment authorization is valid for 1 year, and is renewable in 1 year increments while the adjustment of status case is pending. While processing times do vary from RSC to RSC, the alien should allow at least 14-16 months for adjustment of status.

• For candidates who do not possess a CGFNS Certificate, the VisaScreen requires passing scores on the TOEFL and the Test of Written English (TWE), which may be taken together at the same time, as well as the separately taken Test of Spoken English (TSE).
• Nurses in the United States do not have to wait for the VisaScreen certification to apply for the I-140-485. The filings can be made and supplemented with the certification approvals, once received. However, the INS will not issue final I-485 approval without the VisaScreen.
• If the adjustment of status application can be filed jointly with the employer’s immigrant petition, the nurse may be authorized to accept employment with the hospital upon receipt of the EAD (assuming state licensure issues are resolved), subject to the final approval of the I-140 immigrant

IV. POST-ADMISSION STATE LICENSING

While most states require a foreign nurse to pass the CGFNS examination before taking the state licensing NCLEX examination, some states do not. Prior to approval of the Application to Adjust Status, however, all VisaScreen requirements must be met. For someone entering on an immigrant visa from abroad, passage of the CGFNS gives some indication that the alien will also pass the NCLEX and qualify for state licensure.

V. CONCLUSION

As the above information suggests, a healthcare services provider with an offer of employment to a foreign nurse should expect to wait between 1½ to 2 years or more in order for the alien to successfully complete both U.S. immigration and state law requirements and be placed in the nursing position. Therefore, filling the staffing needs of a healthcare provider with qualified foreign nurses requires long-term planning and proper legal representation.