Immigration strategies for hiring staff: congress hasn't been particularly helpful of late, but there remain a few strategies to consider - Feature Article - healthcare professionals deficit

Nursing Homes, May, 2003 by Lawrence M. Lebowitz

Nursing homes, like hospitals and other healthcare institutions, are facing a true crisis in terms of attracting and retaining qualified healthcare professionals. When this situation has arisen in the past (including as long ago as the late 1800s with railroad employees and as recently as the late 1990s with technology workers), Congress (and our country as a whole) has often looked outside of the United States to supplement the workforce with foreign nationals. Thus, one would think that when faced with this same scenario today in healthcare, our legislators would turn to these resources again. Such is not the case.

Immediately prior to the horrific incidents of September 11,2001, legislation was introduced in both the Senate and the House that would have allowed all healthcare providers to use our immigration system to recruit employees. Specifically, a provision entitled the "Rural and Urban Health Care Act of 2001" was introduced in both chambers (S 1259/ HR 2705) that would have allowed 195,000 foreign-born nurses to obtain H-1C nonimmigrant visas to work for healthcare institutions in the United States. Very importantly, this legislation made it clear that, before being issued such visas, the foreign nurses had to possess the appropriate academic training/background and secure the necessary licensure. This legislation was, of course, eagerly anticipated by all healthcare providers.

Unfortunately, and like many other progressive" immigration-related provisions, the expansion of the H-1C category was taken off the table shortly after September 11. Since that time, and despite attempts by (among others) lobbyists for the healthcare industry, both pieces of legislation remain dormant. As a result, all that we are left with is the former version of the H-1C visa that, in reality, is of little (or no) help at all. More specifically, under the current legislation, only 500 such visas are available each year. Moreover, only those healthcare providers who are located in "medically underserved areas" are eligible to use one of the coveted 500 visas. These and other similar restrictions have, in essence, made the H-1C category virtually useless for most, if not all, healthcare providers.

So what is our alternative? First and foremost, we need to urge our representatives in Congress to get the stalled H-1C legislation "dusted off" and moving forward. There are other very important hurdles that need to be addressed, as well. First and foremost is the overall anti-immigration sentiment arising from the events of September 11. Added to that, quite properly, are increased security-related concerns about people (from all fields) who obtain visas and enter the United States. That being said, and consistent with recently introduced procedures used by the Bureau of Citizenship and Immigration Services (BCIS), formerly the Immigration and Naturalization Service, and the various consulates around the world, additional security measures are being taken to reduce the risk of "undesirables" obtaining visas. Additional "visa screens" have been put in place as well to ensure such protection.

What happens, though, if the H-1C legislation is never adopted or implemented or, if it is, takes (as may well be the case) at least a year to go into effect? The remaining strategies available to healthcare providers would be to consider another nonimmigrant (temporary) visa category or, perhaps better, pursue permanent residence status (green cards) on behalf of foreign national employees.

Beginning with the temporary visa options, not many are even feasible. The best option is for healthcare providers to find either Canadian or Mexican nurses (and other selected healthcare professionals) who qualify for TN-nonimmigrant status under the provisions of the North American Free Trade Agreement (NAFTA). Job classifications that would support this type of application (and are found in nursing homes) include registered nurses, nutritionists, pharmacists, and physical, occupational, and recreational therapists. Canadian citizens truly get the benefit of this provision in that application for this visa status is made directly at the port of entry. In other words, the somewhat time-consuming process of filing an initial visa petition with the BCIS is avoided. Mexican citizens, on the other hand, are required to file a petition with the BCIS and, approximately three months later, can secure their TN status. In either event, TN status is valid for a period of one year and can generally be extended indefini tely in one-year increments.

If the TN category is not available, other temporary visa options must be considered. First, if a foreign national is pursuing a degree at a college or university in the United States and holds F-1 (student) status, he or she is entitled to one year of "postcompletion of studies" practical training. This allows a foreign national graduate to receive a full year of employment authorization, allowing him or her to work for any employer in his or her field in the United States. However, after the one-year postcompletion status expires, another temporary visa must be secured for the person to be able to remain in the United States.