Limited Options for RNs and PTs as Visa Numbers Run Out
October 27, 2006
The November 2006 Visa Bulletin for these Schedule A occupations shows a cut-off date of October 1, 2005 This means the Department of State will process only those applications with priority dates before October 1, 2005 will be allotted a visa number and processed for green card.
Background
It will be recalled that in January 2005, Schedule A occupations experienced a brief spell of retrogression that could have caused a 3-year delay in the entry of RNs and PTs notwithstanding the critical need for them.
Congress eventually heeded the call of the healthcare sector and inserted a provision in the supplementary spending bill for tsunami aid and Iraq which recaptured 50,000 unused visas to be allocated specifically to RNs and PTs and other Schedule A workers worldwide on May 11, 2005.
The visa recapture provision prevented years of delay in the entry of these much-needed health professionals to the US, at least until next month.
Effects of Retrogression
For Schedule A workers who are currently in the US under temporary visas such as students and tourists, the immediate impact of the retrogression is that they may not be able to adjust their status from non-immigrant to immigrant.
This means Schedule A workers would have to leave the US when their I-94 expires and wait for their priority dates to be current in order to avoid incurring unauthorized stay, which bars them from acquiring permanent residence in the US.
They will have to wait outside the US until their priority dates come up. Only then can they apply for an immigrant visa at a US consulate and upon approval, enter the US as immigrant workers.
Adjustment of Status
While it may be extremely difficult for Schedule A workers to adjust status in the context of the visa retrogression, the law provides some limited relief.
First, Section 245 (i) of the Immigration and Nationality Act (INA) allows the foreign worker who had been a beneficiary of an immigrant visa petition or labor certification application filed on or before April 30, 2001, and had been physically present in the US on December 21, 2000, to adjust his/ her status to permanent resident despite having entered the US without inspection, overstayed or engaged in unauthorized employment. A penalty of $1,000 on top of the basic filing fee must be paid with the adjustment of status application.
Although the Section 245 (i) program ended on April 30, 2001, some non-citizens may still take advantage of this provision if their case can be considered “grandfathered” by the immigrant petition or labor certification filed on the said date.
For an adjustment of status case to be “grandfathered,” the qualifying petition or labor certification application should have been “approvable as filed.” If the qualifying petition or labor certification application is withdrawn, denied or revoked for reasons that arose after the filing, the non-citizen may still be eligible to adjust status under a different immigrant petition or labor certification application.
Second, Section 245 (k) of the INA also offers an out-of-status foreigner an opportunity to apply for adjustment of status. The applicant must, however, meet the following eligibility requirements, namely: s/he must have entered the US lawfully; s/he must be present in the US at the time the adjustment of status application is filed; s/he must not have violated the conditions of his/ her stay or engaged in unauthorized employment for an aggregate period not exceeding 180 days as of the date of the adjustment of status application.
More Visas Now
It is not far-fetched to expect that the retrogression would stretch to longer periods, even years, if Congress ignores the situation. Unfortunately, Congress is not inclined to act fast on this matter considering its track record.
Although the stalled Senate immigration reform bill contained a provision lifting the quotas for the entry of nurses, there is no clear indication that the retrogression will be stop now or in the near future.
This is the time to call louder for additional visa numbers for skilled workers. US medical and nursing facilities are barely coping. With an estimated 1 million nurses needed through the year 2012, Congress must act fast and decisively on the proposal to exempt nurses from the annual numerical limits for immigrant worker visas so that retrogression would be a thing of the past.