| SCHEDULE A NURSES Our web pages and my article at “Green Cards for Doctors” provide links to the nursing market in the USA.. Please refer to the following 2009 web article, Jobs for nurses. Registered Nurses and Administration of President Obama The President Obama and Vice President Biden are committed to changing the US immigration laws. See President Obama's White House web page on his position on immigration. Our concern, is whether visas will be made available to Schedule A nurses while we wait for those changes? Historically, large numbers of nurses from the Philippines have been immigrating to the US since around 1948 as part of the Exchange Visitor Program. The program allowed persons from other countries to come to the US to study and work for two years to learn about the American culture. Originally, the program didn’t target nurses specifically, but was created to combat Soviet propaganda during the cold war by exposing foreigners to US democracy. A large number of those going to the US were nurses from the Philippines. With the cycle of nursing shortages after WWII, the Exchange Program became a recruiting vehicle for US hospitals. The next large surge of nurses to the USA came after 1965 when the US immigration laws, which had favored northern European countries, where changed, allowing more people from Asia to immigrate (India, Philippines, Korea, etc.). The new law allowed nurses to come to the US on tourist visas, even without prearranged employment simply by proving they were nurses. Listing on Schedule A. Eventually nurses and others were exempted from the labor certification requirement by listing them on a list referred to as Schedule A. When the Department of Labor (DOL) finds that there are insufficient U.S. workers available to meet employers’ demand, and the wages and working conditions of existing US workers will not be adversely affected by their immigration, it lists these occupations on Schedule A. “Professional Nurses” and “Physical Therapists” have been listed on Schedule A since 1980. Since the addition of “professional nurses” and “Physical Therapists” in 1980, the only other occupation to appear on Schedule A, was “shortage-area specialist physician,” which was taken off the list in 1987. In 2010, thirty years later, the Department of Labor (DOL) continues to find that the U.S. does not supply enough professional nurses and physical therapists to meet either U.S. employer or U.S. consumer demand. Both occupations remain on Schedule A. The DOL expects that these two occupations will remain in short supply for the foreseeable future, or at least to 2020. The DOL excuses petitioners (the U.S. Employer) of Schedule A occupations from the protracted Labor Certification labor market test. The reason for the excuse is obvious, since the importation of these workers will not negatively impact U.S. workers’ wages and working conditions, there is no reason to require petitioning employers to test the labor market. Doing away with the labor market test benefits the DOL as well, since it can shift scarce resources into areas that better fulfill its aims. The DOL has devised a procedural to avoid the traditional labor market test. An Application for Alien Labor Certification is still filed, but it is filed directly with the USCIS, as an attachment to the Form I-140, Petition for Alien Worker. The DOL delegates its legal Labor Certification authority to the USCIS, which ordinarily rubber- stamps the Application. However, instead of simply issuing the immigrant visa to the needed worker, the Department of State (DOS) takes all of the USCIS’ approved employment-based cases and allocates visas according to the Congressionally-mandated preference system. Under this system the DOS is not allowed to issue more than seven percent of the total visas to any single country’s natives. This preference-and-cap-by-nationality system has been criticized by academics, business leaders, and economists. RECENT HISTORY: EX VISA AND THE SUBSEQUENT SCHEDULE A BLACKOUT During each of the fiscal years between 2001 and 2004, about 35,000-40,000 annual visas were authorized by Congress, but unallocated by the DOS. This 150,000 visa shortfall was caused primarily by manpower shortages within the USCIS. Three different government agencies have their hand in the review, distribution, and issuance of employment based immigrant visas: the DOL, USCIS, and the DOS. Briefly, their roles are: (1) the DOL is charged with certifying that US workers’ wages and working conditions are not negatively impacted by the approval of the application; (2) the USCIS confirms that the Petitioner and Beneficiary meet the basic requirements as employer and employee; and (3) the DOS allocates and issues the visas. The visa allocation is governed by the described preference- and-cap-by-nationality quota system. In the October 2004 Visa Bulletin, the DOS noted that employment-based immigrant visa demand had diminished in 2003 and 2004, and the USCIS allocated resources toward approving large numbers of backlogged employment-based cases. In turn, the DOS warned, employment-based visa numbers would “cut- off” or “retrogress” in January 2005. Sure enough, the DOS’ January 2005 Visa Bulletin established a cut-off date of January 1, 2002 for EB-3 immigrant applicants from India, the Philippines, and China, since those three countries were exceeding their seven percent country allocation. Overnight, the processing time of an Indian, Philippine, or Chinese nurse tripled, from one year to three. This country-specific retrogression led to the bizarre result. Between January 2005 and June 2005, an Iranian or North Korean nurse would have had her case processed in one year, while an identical Indian, Philippine, or Chinese nurse’s case took three years. Since the nonimmigrant visa is an inadequate option for nurses, Congress took quick action to solve this nurse visa blackout and end the absurdity. On May 11, 2005, President Bush signed the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. Section 502 of this Act included a provision to create a new EB visa class, the EX category. (EX is shorthand for EXempt from the immigrant visa quota) The EX visa category provided a one-time grant of 50,000 visas for Schedule A occupations. This put all nurses, regardless of country of birth, in the same processing queue. For the short run, this solved the problem. DOS turned the visa faucet back on in June 2005, and US employers promptly filed visa petitions. Needed foreign-trained nurses and physical therapists recommenced entering the US. But this period of perfect blend of aim and process ended quickly; the 50,000th visa was used in a scant 18 months. In November 2006 the nurse visa blackout returned. As of the time of this writing, several different attempts have been made to cure the nurse visa blackout. As of March 2010 the backlog remains. Recent legislative history US Congress: As stated, CIR was not passed and died in June 2007. But as late as September 2008 these two bills were still under consideration by Congress: Emergency Nursing Supply Relief Act (H.R. 5924) Recapture of Immigrant Visas Lost to Bureaucratic Delay (H.R. 5882) Also, on December 5, 2008 the Office of the Citizenship and Immigration Services Ombudsman, Homeland Security, made the following recommendation regarding Schedule A nurses While we do not expect to see CIR revisited until 2010. We can expect to movement of (H.R. 5924) and (H.R. 5882) during 2009 or 2010. Making visas available to Schedule A nurses will not create competition with American workers for these US jobs. Everything that you have read informs you that there is a critical shortage of registered nurses in the USA. That is why the CGFNS exam was recently offered in Moscow Russia and re-offered in the country of Nigeria, and the NCLEX-RN is now offered in India and the Philippines, among other countries. There was a non-immigrant visa issued to registered nurses, H-1A, whose issuance was allowed to expire in 1996. This visa was only issued to registered nurses. The US Congress has considered authorizing this visa category, designating a new non-immigrant classification "W". In 2010 that legislation has been introduced into the US Congress and is presently pending. In 2007 the US Congress did not pass Comprehensive Immigration Reform (CIR). Part of that legislation known as the STRIVE Act, included TITLE V that provided opportunities for high skilled workers to come to, and remain in, the U.S. It addresses employment needs in shortage occupations (Schedule A workers) such as nurses. It specifically addresses the nurse question, providing an exemption for Schedule A shortage occupations from the employment based green card caps until September 2017. It would also provide for direct consular filing of I-140 petitions for Schedule A. But CIR contained other provisions that did create competition for US jobs. CIR died in June 2007 and with the 2009 economic and employment crisis in the USA it was not expected to be revisited until 2010. Why? Because CIR will allow workers, both non-immigrant guest workers and permanent resident immigrants to enter the US and compete for the shortage of jobs that presently exist. But such is not the case with Schedule A workers. The DOL has since 1980 listed nurses on Schedule A. Essentially there are not enough US workers in the US to do the jobs of registered nurses. If we pass laws letting “nurses” into the US to work, their employment will not affect the jobs of American workers because there are not sufficient trained registered nurses, in America, to fill the jobs in the US. Thus, few in the field of US immigration expect to see CIR passed into law, until the unemployment situation in the US is addressed and remedied. But piecemeal legislation directed at Schedule A nurses is possible in 2010. Does this mean that foreign educated nurses will wait 7 or 9 years, or longer, for immigrant visas to become available and the end of retrogression? Yes if you are waiting to immigrate in the 3rd preference and you are not a nurse. No if you are a Schedule A nurse. Should you, a medical professional consider enrolling into this course with a 7 to 9 year retrogression waiting period for nurses as of March 2010? MY opinion is yes, if you want to get to the US with a green card. There has been one piece of US legislation over the last years that have made immigrant visas available to qualified immigrants. That was in 2005 and made 50,000 visas available to Schedule A applicants by recapturing unused visas from previous years (EX visa status). The availability of those 50,000 immigrant visas where made available only to Nurses and Physical Therapists (and their dependents). Those 50,000 visas ran out, resulting in at least the present 7 to 9-year retrogression for nurses and all others in the 3rd employment based category. The present amendments will make immigrant visas available to Nurses and Physical Therapists, resulting in the end of retrogression for these two listed Schedule A occupations. For others in the 3rd employment based category retrogression will continue. INDIAN vs. FILIPINO NURSES Why are Indian nurses waiting 9 years for their green cards, and Filipino nurses only waiting 8 years or less to immigrate with their green cards? Here is the State Department’s Visa Bulletin which comes out each month. Nurses are employment based third preference. The March 2009 bulletin for India shows a date of 15 Oct 2001. This means that for anyone in the 3rd preference who has a priority date EARLIER than October 15, 2001 there is an immigrant visa available. So if a US employer filed an I-140 petition in October 2001 for you or earlier, you'll get an immigrant visa now. India is the most backlogged country of all. Even the Philippines where most of the foreign nurses come from, is only backlogged to May 2002 in the 3rd preference? Why is that? Simple reason. The third preference is made up of all workers with bachelor degrees regardless of the major they got that bachelor degree in so long as related to the job, and workers who had to have 2 years of training or experience, like registered nurses in USA who get their registered nurse diploma after 2 years of study. Everyone immigrating in employment based third preference has been certified for the job by the US Department of labor (labor certification) or is exempt from labor certification if listed on Schedule A , e.g. nurses and PTs. But why are the Philippines only backlogged 7-8 years if most nurses come from that country, while India is backlogged about 9 years? You must remember that the third preference is comprised of professionals who have at least a bachelor degree or the two years of training or experience. Where in the world do the vast majority of engineers, computer professionals, software and other high tech workers come from? Yes India. Consider the H1-B non-immigrant category. To be a H1-B worker you have to have a bachelor degree. 90% of H1-B visa holders are engineers, computer professionals, software and other high tech workers. Each year in October US Immigration gives out these visas, about 85,000. You have to apply in April for one of these visas. After the first week of April there are so many applicants that the Immigration Service holds a lottery for one of these visas. If you are lucky and are chosen you'll get one of these H1-B visas in October, good for 6 years. When you renew after 3 years you are not subject to the category quota. Excepting nurses and PTs (Schedule A workers), essentially all of these workers go through the Labor certification process in order to get a green card in the 3rd preference. The immigration laws permit the Employer to keep them in the US working, while they go through the labor certification process and hopefully they'll get their green cards in the 6 years they are legally in US working. Most of these 3rd preference workers come from India. Those who have qualified through labor certification are waiting for an immigrant visa, like each and every nurse from India. The reason India is so backlogged in the third preference is because of the large number of engineers and computer professionals waiting for their visas, not because of the nurses. Recapturing of visas: The last time visas were recaptured in 2005 (EX visas) they only went to nurses and physical therapists. There are provisions for nurses in the to-be-passed Comprehensive Immigration Reform (CIR) that includes specific language for nurses and which might include a re-introduction of the H1-A nonimmigrant visa category only for nurses. There has been introduced into the US Congress specific legislation that only applies to Schedule A workers, or nurses and PTs. We can and do expect to see legislation as it applies to nurses, independent of other 3rd preference workers. See the 2008 Immigration Debate (http://www.mdnurse.com/visas.html). So when the visas are re-captured or specific visas are made available, they will only apply to nurses. So standing in the crowd waiting for a visa, the wait is long for a nurse from India. Separate the Indian nurses from all the engineers, computer professionals, software and other high tech workers waiting for a visa from that country and that preference, and that wait is much shorter, even shorter than the wait for the Philippines. All records will show that there are less Indian nurses immigrating to the USA than Filipino nurses. If you believe that the nurse diploma will get you unto the US working with a green card, then you should enroll into the MD/nurse diploma program. Doctors who have completed the course and have earned their CGFNS certificates are still waiting. They will be the first placed with US Employers who will petition for them. As a practical matter, no US Employer will make a nurse a job offer (file I-140) when they have to wait up to 8-9 years for the nurse to get to the US to work for it. For those doctors presently receiving instruction at MAPS to earn the nurse diploma, or for those considering joining the course, it will be at least one year before you are in a position with the CGFNS certificate for a US Employer to make you the job offer, I-140 petition for you. I cannot say WHEN there will be visas made available to Schedule A nurses, whether through CIR or through piecemeal legislation. I can say that soon visas will be made available to nurses that will allow them to immigrate to the USA. Whether the doctor will be in a position to take advantage of the availability of visas is a question only the doctor can answer. Once retrogression is removed and immigrant visas are made available to Schedule A nurses, the US Employer will petition for a nurse that he will only have to wait one year for. There will be a shorter waiting period for the nurse if filing and processing is expedited, as is proposed. I am residing in the USA, in Southern California. I have spoken to numerous employers of registered nurses and about their work related needs for registered nurses. The employers want and need nurses, but are not willing to submit job offers (I-140 petitions) if they have to wait 8 or 9 years before the nurse can start working for it. When visas are made available for Schedule A nurses we’ll be ready! Rudy Mosqueda |
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