Types of Work Cards

Work Cards (EAD) and Nursing
There are many types of “work cards” issued by the Immigration Service (CIS).

The most common type of  work card (EAD) issued to nurses is a temporary work card that is issues 2-3 months after a green card application is filed in the United State.  This type of card is only issued to permanent resident applicants who are physically in the U.S., and have not violated the terms of their temporary visa for more than 180 days.

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.

TN visas are available to Canadian nurses who are licensed registered nurses in a province or state and have an interim permit to practice in a US state.  These TN visas are valid for up to one year at a time, with unlimited eligibility for one-year extensions, as long as the nurse promises to return to Canada.  The TN process can be very fast and simple.  No labor condition attestation or visa petition is required.  As of July 26, 2005, however, Canadian RN’s may be required to submit a visa-screen certificate before obtaining a visa or entering the US. Spouses and dependent children may obtain TD visas as the dependents of the primary applicant for a TN visa.   TDs may study but not work without obtaining a separate work visa.

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".
 
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.
 
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 concurrent filing.  In essence, 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.

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 employment authorization, or other legal issues, please have one of the professionals at KHR arrange a free consultation with the law firm of Curran & Berger.