Dilemma of the Out-of-Status RNs and PTs

The visa retrogression that hit Schedule A occupations last November like registered nurses (RNs) and physical therapists (PTs) has made a tremendous impact on the influx of immigrant workers to the US.

The unavailability of visa numbers in general has created tremendous difficulties in particular for foreign RNs and PTs in the US who wish to adjust their status to permanent residency. We have received several inquiries from them and they usually fall under either one of two situations.

There are those who have passed their licensure exams and have found employers willing to sponsor them for adjustment of status to permanent resident. There are also those who were able to file their adjustment applications before the retrogression but their applications were denied because they could not submit their Visa Screen certificates before the deadline set by the USCIS.

Quite a number of these foreign RNs and PTs have overstayed their temporary visa status.

In an ideal world where immigrant visa numbers are still available (or at least where they would definitely be available within 6 months from expiration of their status), these foreign RNs and PTs could invoke Section 245 (k) of the Immigration and Nationality Act. This provision allows them to apply for adjustment of status within 180 days from the time their authorized stay expired provided they have not otherwise violated the conditions of their stay.

But the situation at present is far from ideal. There are no available visa numbers for them and no one can tell when Congress will get around to legislating additional visa numbers.

Unfortunately, this puts those who have overstayed their temporary visas in a very tight spot. If they leave the US because they cannot adjust status, the 3-year / 10-year bar will kick in and they can kiss their dreams of getting a job in the US goodbye.

Under immigration laws, those who have overstayed their temporary visa for over six months but less than a year will be barred from reentering the US for 3 years, while those who have overstayed for more than a year will be barred from reentering for 10 years.

It is still hard to say at this point when Congress will get around to passing the immigration reform law that would ease the visa backlog. Senator Arlen Specter (R-PA), the Judiciary Committee Chairman who led the passing of the Senate immigration reform bill last year, had reportedly discussed with Senator Edward Kennedy (D-MA) the need to get the bill done within the year.

As with most things, timing is crucial. Foreign RNs and PTs are well advised to consult an immigration attorney to discuss their options and hopefully, provide answers to the dilemma created by the visa retrogression.