IMMIGRATION PROCEDURES FOR NURSES
- Palma R. Yanni, Esq.
This memorandum is not intended to provide legal advice on individual cases, each of which presents specific problems. Rather, it is intended as an overview of the general process, and the steps necessary for an employer to sponsor the immigration of an alien worker. Due to the complexities of the immigration process, it is recommended that you seek specific advice from an experienced immigration attorney.
Immigrant Petition for Alien Worker
The United States has a nationwide shortage of qualified nurses. Accordingly, employers do not need to obtain individual labor certifications, but can proceed to filing an Immigrant Petition for Alien Worker with US CItizenship and Immigration Services (USCIS) after obtaining a prevailing wage request, posting a notice that an application will be filed for ten consecutive business days, and then completing the Application for Alien Employment Certification form. The day the Immigrant Petition for Alien Worker is received by USCIS becomes the "priority date" for issuance of an immigrant visa to the nurse. The U.S. allows a fixed number of new immigrants each year, and if the annual quota is exceeded, the priority date determines who may immigrate first. In recent years, backlogs have developed in the second preference employment category for persons born in India and China, and for all individuals in the third a categories. Most nurses fall into the third preference category, but nurses with advanced degrees coming to the US for positions that require advanced degrees fall into the second preference category. Due to the backlogs, it make take years to immigrate despite the shortage of nurses. The current priority dates may followed on the Department of State's website at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
The Immigrant Petition for Alien Worker requires:
1. Proof that the intending immigrant has all the necessary qualifications for the position; and
2. Proof that the sponsoring employer had the ability to pay the prevailing wage offered on the labor certification. Acceptable evidence includes the most recent federal tax return, audited financial statement, or an annual report.
Qualifications of the Nurses
In addition to an RN or B.S. in Nursing, at the time of the filing of the Immigrant Petition for Alien Worker, nurses must have one of the following:
1. Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS), not merely evidence of passing the CGFNS examination.
2. Evidence of passage of the National Council Licensure Examination for Registered Nurses (NCLEX-RN), or
3. Full and unrestricted (permanent) license to practice nursing in the state of intended employment.
There is a separate requirement that must be fulfilled prior to entering the United States for employment as a nurse: The Visa Screen. The Visa Screen was established by section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and requires certain health care workers, both immigrant and nonimmigrant, to obtain verification of their education, training, licensing and English language competency. The only organization authorized to issue the Visa Screen certification is the CGFNS. Accordingly, there is considerable confusion and redundancy in the separate immigration requirements. The Visa Screen certification requires passage of either the NCLEX or CGFNS examination, verification of credentials directly from the nurses educational institution, and demonstration of competence in English.
Competence in English can be demonstrated through three alternatives:
1. Test of English as a Foreign Language (TOEFL) plus the Test of Written English (TWE) and the Test of Spoken English (TSE), or
2. Test of English for International Communication (TOEIC) plus TWE and TSE, or
3. Interntional English Language Testing System (IELTS).
English language examinations are waived for nurses who were educated in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States if courses were taught in English, and text books were in English.
Final Processing of Immigrant Visa
After the Immigrant Petition is approved, when the United States Consulate receives the biographic data, and various government checks are satisfactorily completed, the Consulate will send a notice to the immigrant and family members to appear at the Consulate for an interview, and to present formal applications for immigrant visas. Prior to the interview, all prospective immigrants to the United States must undergo physical examinations. The formal application for an immigrant visa elicits information to determine whether an intending immigrant is admissible to the United States. Reasons to find someone inadmissible and to deny the visa include criminal or terrorist activity, drug abuse, communicable disease of public health significance, or communist party membership. Once the Consul issues visas, immigrants must enter the United States within six months.
If the intending immigrant is in the United States in lawful non-immigrant status and his or her priority date is current, he or she may apply for permanent residence at the USCIS, has not been employed without authorization for more than 180 days,. As with consular processing, agency checks are conducted, a medical examination is required, and information is elicited to determine admissibility. A person who has applied for adjustment to permanent residence status may not leave the United States during the processing period without prior permission of the Immigration Service.
Although the complexity of our immigration laws presents hurdles to achieving permanent residence, it is realized each year for many nurses and their families, who provide excellent care in the United States.
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