The Nursing Shortage and H-1B Visa Rules

We have all seen the projections of massive nursing shortages in the coming years. Right now 12% of nursing positions in the United States are vacant. We are lucky in Massachusetts that only about 8% are vacant.

The American Nurse Association predicts that 65% of present nurses will retire during this decade. The U.S. department of Health and Human Services estimates that the current shortage of nurses is about 230,000, rising to 730,000 by 2010 and 1.2 million by 2020.

There are not enough nurses in the pipeline. There are not enough U.S. nursing schools or nursing teachers to put a serious dent in this shortfall. Americans are getting older and the demand for RNs is expected to increase dramatically. Medical errors and compromised care resulting from understaffing are causing some states to legislate minimum staffing ratios.

In facing this challenge, U.S. health care facilities will have no choice but to seek solutions through a variety of efforts, including vigorous recruitment and retention programs, with higher salaries, better working conditions, and continuing education. Unfortunately, even the most generous and creative programs will not solve the nurse-staffing crisis. There simply will not be enough U.S. nurses to meet the growing demand. Things are going to get much worse before they get better.

The hardest hit areas, such as Texas, California and Florida, are increasingly turning to overseas recruitment to help fill some of the vacancies. Foreign nurses have always been a part of the nurse work force, especially since the end of World War Two. But the numbers have been small. Now hospitals are bringing RNs from abroad by the thousands, notably from the Philippines, Europe and India.

On the other hand, the advantages of foreign-born nurses are becoming more apparent. In countries such as India and the Philippines, there has been an explosion in the number of nursing schools. One of the fortunate effects of the global market for healthcare personnel is that more and more nursing colleges are now being built in countries that could not previously afford them. Many thousands of young men and women are entering nursing with the express intention of emigrating to pursue their careers in modern health care facilities. These RNs can often make ten or twenty times their salaries outside their home countries. These RN’s are trained in English and must pass preliminary language, credentialing and proficiency tests, in addition to state licensing requirements such as NCLEX. There are several reasons to refrain from overseas recruitment. Immigration rules are complex. Dealing with foreign cultures can be intimidating. There are additional costs for immigration applications, legal fees, credentials evaluations, English language testing, and travel. Foreign nurses often need help with U.S. hospital procedures and cultural assimilation. Some hospitals have had bad experiences with disreputable overseas recruiters.

Coming from countries where nursing homes are unheard of, these immigrants are particularly compassionate and respectful toward elderly patients. Normally they make a contractual commitment of at least two years to the sponsoring health care facility, reducing the high costs of worker turnover.

Finally, health care facilities can gain considerable financial benefit by hiring overseas nurses, especially facilities that currently use travelling nurse or temporary staffing services. Because agency rates are steep, hospitals often pay $80,000 or more for nursing services that can be performed by a foreign nurse for under $40,000. Typically, the costs and fees for recruiting testing, visa processing, travel and transitional assistance total in the range of $10,000 to $14,000, which can be quickly recovered by reducing dependence on agency staffing.

Herewith is brief description of the visa process for foreign nurses. The vast majority of overseas RN’s enter the US with immigrant visas (also known as permanent residence or green cards). Some RN’s are eligible for nonimmigrant (temporary) visas, which are usually faster and easier to obtain.

An H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree as a minimum requirement. Most RN positions do not require a bachelor degree. Those higher-level positions such as administrative, supervisory or highly specialized occupations may be H-1B eligible. Examples of H-1B eligible are certified advanced practice nurses (APRNs), nurse practitioners, certified registered nurse anesthetists, and certified nurse-midwives. The H-1B visa is valid for three years and can be renewed for an additional three years.

If the job itself qualifies as a “specialty occupation” and the RN applicant is sufficiently qualified, the health care facility may petition for the H-1B on behalf of the nurse. The Department of Labor requires the filing of a "Labor Condition Application" (LCA) before the petition may be filed. Basically, the rules require the employer to "attest" that the RN will be paid the higher of the actual or prevailing wages, will not adversely affect other workers, and is not involved in a labor dispute. The nurse applying for the position must be properly licensed and must obtain a "visa-screen" certificate demonstrating that her education, licensing and training meets US standards, and that she possesses oral and written English skills appropriate to practice professional nursing in the US.

The visa screen requirement, which went into effect 7/26/04, can take many months to obtain, and the H-1B visa petition can be approved in 1-2 months, if a visa number is available.

Several years ago the USCIS (formerly INS) experienced a surge of fraudulent H-1B petitions filed by health care facilities claiming that the nurses they wanted to hire were all high-level supervisors or specialists, when in fact they were staff RNs. USCIS is now skeptical of all such H-1B visa petitions, so the professional duties of the position must be heavily and credibly documented. Spouses and dependent children may obtain H-4 visas as the dependents of the primary applicant for an H-1B visa. H-4s may study but not work without obtaining a separate work visa.

If you have questions about H-1B visas, or other legal issues, please have one of the professionals at KHR arrange a free consultation with the law firm of Curran & Berger.