Adjustment of Status

Immigrant Visas (permanent residence) are the most common way to bring foreign-born registered nurses to the United States. An employer may file an immigrant visa petition for a nurse requesting that the nurse enter the United States as a permanent resident - a so-called "green card".

The Department of Labor (DOL) has recognized that there is a shortage of registered nurses in the United States and has pre-certified this position (20 CFR Sec. 656.22). An employer wanting to sponsor an RN for permanent residence is exempt from the normal monitored recruitment and alien labor certification requirements. This can save months or years of processing depending on which state the employer is in.

Nurses seeking to qualify for an immigrant visa must show they possess (1) a valid nursing license in the country of nationality; (2) a diploma from a nursing school; (3) a full and unrestricted nursing license in the U.S. state of intended employment or evidence of passing the National Council Licensure Examination for Registered Nurses (NCLEX-RN) or a Certificate by the Commission on Graduates of Foreign Nursing Schools (CGFNS); and (4) that the nurse has obtained a VisaScreen Certificate issued by the International Commission for Healthcare Professionals (ICHP).

When the employer has reached a conditional agreement with an RN, the employer, or its attorney, begins the immigration process by filing an immigrant visa petition with the USCIS accompanied by Labor Department forms ETA750A and ETA750B, and various documents regarding the petitioner and the nurse. Typically, the USCIS will approve the petitions in 2-4 months, and the case will be forwarded to the National Visa Center, after which the appropriate biographical and alien conditional documents will be sent to the US Embassy where the RN lives.

As of March 28, 2005, under the new “PERM” rules, I-140 (schedule A) petitions must be accompanied by proof that the employer will pay the nurse the “prevailing wage”, as determined by the State Workforce Agency.

If the nurse is present in the U.S. in valid immigration status, she may also take advantage of recent changes in the immigration laws permitting filing an immigrant visa petition concurrently with an adjustment of status (green card) application and temporary work card. If the registered nurse qualifies for an immigrant visa, he or she may simultaneously file applications for permanent residence and interim work authorization. Thus, a nurse may become authorized to work in a few months. Nurses outside the United States must spend at least several more months to process their green card at a US consulate there.

Before the green card application will be approved, the nurse must present a “Visa Screen” certificate. This certificate is issued by the Commission on Graduates of Foreign Nursing Schools. CGFNS will issue the certificate after reviewing the nurse’s education, license and training credentials, and after the nurse has passed stringent tests of her written and oral English skills. Even nurses who are educated in English in the Philippines and India have only a 50% pass rate on the test of spoken English. Even if a foreign-born RN is educated, licensed and trained in the U.S., she must still obtain a Visa Screen certificate.

As of January 1, 2005, there was a "retrogression" in the visa backlog for workers from China, India, and the Philippines. The number of green card visas available for these countries is now limited. If legislation is not enacted to make more immigrant visas available, this could mean additional delays for these nurse applicants. No one knows how long these delays could be. This is a serious and contentious political issue. Many large health care facilities and other employers have already begun putting pressure on Congress to resolve this problem, and there is a reasonable possibility that Congress will change the rules to eliminate or circumvent this visa retrogression, but no changes can be expected before early summer.

If you have questions about adjustment of status, or other legal issues, please have one of the professionals at KHR arrange a free consultation with the law firm of Curran & Berger.