SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS (EB-3)
Sponsoring A Nurse As Immigrant
Since professional nurses (also called Registered Nurses) are in a pre-certified shortage, or “Schedule A”, occupation, they do not have to undergo the cumbersome labor certification process. They qualify for employment-based 3rd preference (EB-3) as skilled worker or professional. Registered nurses may also qualify under the employment-based 2nd preference (EB-2) if they have an advanced degree (degree higher than a bachelor’s degree), or under 1st preference (EB-1), if they are outstanding professors or researchers. The waiting time for an immigrant visa in the EB-3 category is greater than EB-2, while in EB-1 there is no visa backlog at all.
The immigration process begins with the filing of an I-140 petition at the USCIS Service Center that has jurisdiction over the intended place of employment. The employer may be a hospital, a nursing home, a medical clinic, a nursing service provider or any healthcare facility.
The following documents must be included in the petition:
1. An uncertified Form ETA-9089, in duplicate, signed in the original by an authorized official of the petitioning organization, the alien, and the representative, if any;
2. Prevailing Wage Determination (ETA 9141) issued by the National Prevailing Wage Center;
3. A copy of the notice sent to applicable collective bargaining unit or a copy of the posted notice (must be posted for at least 10 consecutive business days at the place of employment between 30 and 180 days prior to the filing of the Form I-140 petition);
4. Copies of any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions to the position specified in the Form 9089 in the employer’s organization;
5. A full unrestricted permanent license to practice nursing in the state of intended employment or CGFNS certificate issued by the Commission on Graduates of Foreign Nursing Schools or evidence that the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN), administered by the National Council of State Boards of Nursing;
6. Nursing diploma or degree;
7. Nursing registration from the country where the nurse received his/her nursing education;
8. Proof of prospective employer’s ability to pay wage (for an employer with 100 or more employees, a letter from a financial officer; if employees total to less than 100, a copy of annual reports, federal tax returns, or validated financial statements); and
9. Evidence of an agreement for nursing services between the petitioner and healthcare facility where the nurse is destined to work if the I-140 petition is filed by a nursing service provider and not the actual healthcare facility.
A nurse who has been petitioned by an employer may be petitioned by a subsequent employer. A nurse who is the beneficiary of multiple petitions is entitled to the priority date of the first petition. A priority date is the date the INS received the completed I-140 petition with the filing fee. The I-140 petition may be filed concurrently with the adjustment of status if the nurse is in the U.S. and the priority date is current. However, if the nurse is abroad, he/she may apply for immigrant visa at a U.S. Consulate. The VisaScreen certificate is required before the adjustment application is approved or before the immigrant visa is granted.
To obtain the CGFNS certificate, the nurse has to complete a three-part certification program: the credentials review, a one-day qualifying exam on nursing knowledge, and an English language proficiency examination. The Commission on Graduates of Foreign Nursing Schools (CGFNS), which administers the program, is located at 3600 Market St., Suite 400, Philadelphia, PA 19104, and telephone number (215) 349 8767. Its website is http://www.cgfns.org/.
The CGFNS certification program begins with the CGFNS’s assessment of an applicant’s education and credentials to determine if the applicant satisfies all the registration requirements to be a licensed professional in the field. In compliance with said requirements, the nurse must have:
1. completed high school;
2. graduated from a government-approved nursing program of at least two years;
3. received theoretical instruction and clinical practice in nursing care in various areas;
4. been issued a full and unrestricted license or registration to practice as a first-level, general nurse in the country where the general nursing education was completed;
5. been issued a current license or registration as first-level, general nurse.
Note that all transcripts and validations must be issued directly by source agencies.
The Qualifying Exam, which is a gauge of an applicant’s theoretical and practical nursing knowledge, is given thrice a year at more than 40 sites worldwide. The English language proficiency exam measures an applicant’s English Language proficiency. The exam determines comprehension, listening, reading comprehension, and structure and written expression.
Applicants may take any of the following three English proficiency examinations as part of the Certification Program:
For English language proficiency scores to be valid, they must not be more than two years old and applicants must pass both English and the Qualifying Exam within a two-year time frame.
Applicants may contact directly any of the following institutions in order to schedule an examination date:
Exempt from the English language proficiency requirement are applicants who meetall of the criteria below:
1. Native language is English;
2. Country of nursing education was Australia, Canada (excluding Quebec), Ireland, New Zealand or the U.K.;
3. Language of instruction was English; and,
4. Language of textbooks was English
The VisaScreen Certificate
The VisaScreen certificate requirement was imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It is required of those applying for non-immigrant visas or permanent residency. The VisaScreen program consists of three parts: (1) education analysis; (2) licensure validation; and (3) English language proficiency assessment. The International Commission on Healthcare Professions (ICHP), which conducts the program, holds office at 3600 Market St., Suite 400, Philadelphia, PA 19104 and its telephone number is (215) 349 8767.
Educational requirements of the VisaScreen program are:
1. Successful completion of a high school education;
2. Graduation from a government-approved nursing program of at least two years in length; and,
3. Successful completion of minimum number credit hours in specific theoretical and clinical areas during their professional program
In the case of foreign educated nurses, the following documents must be sent directly by the issuing authority to ICHP:
1. Validation of initial registration or licensure in the country where the applicant completed his or her professional education; and,
2. Validation of all current and previous professional registration or licenses
Note that for the purpose of meeting the English language proficiency requirements, the nurse must present passing scores in any of the following tests:
Applicants who meet all of the following criteria may be exempt from the English language proficiency requirement:
1. Country of professional education was Australia, Canada (excluding Quebec), Ireland, New Zealand, U.K. or U.S.;
2. Language of instruction was English; and,
3. Language of textbooks was English
Foreign-educated nurses aspiring to practice as a registered nurse in the U.S. must likewise submit one of the following:
Note that Foreign Nurses who graduated from a college in the U.S. still need to apply for a VisaScreen certificate if they are applying for a visa.
Sponsoring A Nurse As Nonimmigrant
H-1B Specialty Occupation
Nurses may enter the U.S. under an H-1B visa if the prospective employer can establish that the position is a specialty occupation. A specialty occupation is one that requires as a minimum for entry the attainment of a bachelor’s degree or its equivalent.
The USCIS has maintained that professional nursing is not a specialty occupation because only a two-year associate degree, and not a four-year bachelor’s degree, is required for entry. An RN license in the state of intended employment and visa screen certificate are also required.
For a position to be eligible for H-1B, the employer must prove that:
a. it has normally required the services of an individual holding a bachelor’s or higher degree for the proposed nursing position;
b. the services of individuals holding a bachelor’s or higher degree for similar positions is required in other facilities; and,
c. the proposed nursing position is a specialty occupation because the duties are complex and specialized
Some facilities have been able to obtain H-1B approval for the following positions: Care Plan Coordinator, Rehab Professional/Charge Registered Nurse, or Unit Management-Supervisor. The Administrative Appeals Office (AAO) has also held that a team leader/nurse position satisfies the definition of specialty occupation. The nurse in this case performed patient care and general management of the nursing unit, training, assigning and overseeing professional and nonprofessional personnel assigned to the unit. The AAO stated that the position was comparable to that of a health service manager, which commonly required clinical experience as well as a baccalaureate or higher degree in a specialized or related area.
The following positions may satisfy the H-1B requirement:
1. Nursing positions that require advance practice certification such as clinical nurse specialists, certified nurse anesthetist, and certified nurse practitioner;
2. Nursing specialties that require a higher degree of knowledge and skill than a typical RN such as those who possess additional experience in certain areas (i.e., school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics.)
3. Upper level nurse managers and nursing services administrators.
H-1B petitions are usually approved for three years and can be extended for another three. The petition (Form I-129) is filed with the USCIS Service Center with jurisdiction over the intended place of employment and must be accompanied by the I-129 supplement and H-1B data collection supplement, a copy of a certified labor condition application, an employer’s letter of support, supporting documents that include VisaScreen Certificate, RN license in the state of intended employment, and BSN diploma. The labor condition application must state among others that the employer will pay the prevailing wage for the occupation. The nurse may be accompanied by the spouse and unmarried children under 21 under H-4 status.
Other Visa Options
Nurses who are Canadian citizens may enter the U.S. with a TN visa under NAFTA and can apply for the TN visa at the port of entry. The TN visa is valid for one year but may be renewed every year. There is no limit on the number of years that the TN nurse can stay as nonimmigrant in the U.S. Canadian citizenship, not birth in Canada, is required, but the nursing education must have been received in Canada or the U.S.
Under certain conditions, employers may hire nurses as exchange visitors (J-1), by way of a program approved by the Department of State Exchange Visitor program. They may also participate in cultural exchange programs for a period of up to 15 months and be given a “Q” visa. Alternatively, they can apply as a trainee under H-3 visas. These visas, however, have strict criteria that are difficult to meet.