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Facts and Myths about Visas for Employment of Foreign Registered Nurses in the US

Compiled by Lal Varghese, Attorney at Law, Dallas, Tel: (972) 788-0777, Fax (972) 788-2202

E-Mail: attylal@aol.com, www.indiaimmigrationusa.com

The Immigration and Nationality (INA) act authorizes the Secretary of Labor to designate occupations with nationwide labor shortages (Schedule A occupations) in order to admit aliens in these occupations for permanent employment in the U.S without the need to go through the lengthy Labor Certification Process with the State and Federal Department of Labor. Once an occupation is certified as a Scheduled A occupation, it means the Secretary of Labor has identified such occupations as which are lacking sufficient U.S. workers who are able, willing, qualified, and available to do the job and, therefore, admitting for the employment of aliens in such occupations will not adversely affect U.S. workers.

For any Schedule A occupation the U. S. employer (an individual, corporation, or partnership or any other legal entity) must file an immigrant visa petition under the employment 3rd category (professional, skilled, and other workers) and an application for alien labor certification with supporting documents directly with the US Citizenship & Immigration Service (USCIS). Upon approval of an immigrant visa petition, a foreign worker can apply for an immigrant visa at the U.S. Consulate of his/her country of permanent residence and come to the U.S. as a permanent resident to work for the employer who sponsored the immigrant. If a foreign worker resides in the U.S. and has valid non-immigrant status at the time of an immigrant visa petition is filed by a U.S. employer, he/she along with spouse, and children under 21 will be able to apply for adjustment of status (concurrently filing) to that of a permanent resident without the need to leave the U.S.

The INA includes professional nurses in the group of skilled workers, or professionals. The definition of "a skilled worker" subcategory requires at least 2 years of training or experience in the specific occupation, and therefore, demands a foreign registered nurse to have either 2 years of training or experience in the field of nursing. Since almost every country requires registered nurses to successfully fulfill a 2-year training program before entering the nursing profession, a foreign registered nurse must have a nursing diploma, at minimum, in order to qualify for an immigrant visa as a skilled worker.

Foreign registered nurses who have a bachelor's degree or any advanced higher degree in the field of nursing will consequently, qualify for an immigrant visa as a professional, not as a skilled worker. The definition of a "professional" subcategory requires a person to hold a baccalaureate or higher degree in nursing and be a member of the profession. The requirement of being a member of a nursing profession is achieved by a professional nursing licensure requirement in almost every country worldwide. Generally, a foreign nurse must be licensed and become a member of a nursing profession regardless of whether he/she holds a basic nursing diploma or a higher degree in nursing. In the latter case the foreign registered nurse will automatically fall into a subcategory of a professional under U.S. immigration laws. The immigration process for a foreign registered nurse who has general diploma in nursing or has a bachelor degree or an advanced nursing degree is the same, although in reality more-qualified foreign nurses are likely to be offered nursing jobs of supervisory nature or of advanced practice. Foreign registered nurses are not required to have any work experience to qualify for an immigrant visa as long as they have either a basic or an advanced nursing degree, the fact which allows nurses to come and work in the U.S. immediately after their graduation from a nursing school.

The federal regulations specify that in order to qualify for Schedule A list a foreign registered nurse must either be certified by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or hold a full and unrestricted license in the state of intended employment, and the proof of either must be submitted with an application for immigrant visa, alien labor certification, and adjustment of status if in US. Basically, a foreign registered nurse can apply for a U.S. nursing license only after successfully passing the National Council Licensure Examination for Registered Nurses (NCLEX-RN). However, in order to sit for NCLEX-RN, the foreign registered nurse must have an official permission from the Nursing Board of the state of intended employment to do so. The Nursing Board issues this permission known as "authorization to take test" (ATT) only after being satisfied with education and licensure qualifications of a foreign registered nurse. All the states in US fall into two uneven groups depending on the way they achieve such "satisfaction". Nearly 85% of states in US relies CGFNS, and 15% of the states relies on other certifications other than CGFNS certification.

Alternatively, the second group of states does not require foreign registered nurses to obtain a CGFNS certificate to sit for NCLEX-RN, because their Nursing Boards are trusted to complete their own foreign registered nurses' verifications. Therefore, the Nursing Boards request foreign registered nurses to complete either a credentials evaluation service (CES report) at CGFNS, a less rigorous and lengthy verification process, or submit credentials directly to the Board. Upon presentation of a CES report from CGFNS or positive determination by the Nursing Board itself, the foreign nurse is issued ATT and allowed to take NCLEX-RN. Different states have different licensing practices, and there was no uniformity for all states. Check with the individual states licensure requirements for NCLEX-RN examination.

The Department of Labor finally addressed in October 2002 the differences in state licensing practices and advised the CIS to accept successful passing of NCLEX-RN in lieu of either the CGFNS certification or a full and unrestricted nursing license. At present the Service can approve petitions on behalf of foreign registered nurses if the nurse has successfully passed NCLEX-RN provided that other requirements applicable to the petition are met. The application should be accompanied by a letter from the nursing board of the state of intended employment confirming nurses' eligibility for a nursing license except for a social security number as the evidence that the nurse has successfully passed NCLEX-RN. The nursing boards can issue such letters only after they have received acceptable NCLEX-RN results. At present NCLEX-RN is offered only in the United States. ATT issued by the Nursing Board is usually valid only for a period of one year. If a foreign registered nurse does not take NCLEX-RN within a year's time he/she will have to re-apply to the Nursing Board and seek another ATT. After a foreign registered nurse registers for NCLEX-RN with NCLEX-RN administration offering the test, he/she has to take the test with 90 days from the date of the official registration for NCLEX-RN. The foreign registered nurse must come to the U.S. and actually take NCLEX-RN only within this window of 90 days, so all arrangements for a U.S. visa, hotel accommodation, plane ticket, and vacation time must be made beforehand to meet this deadline. The foreign registered nurse that needs a U.S. visa to enter the country will have to apply for a non-immigrant visitor's visa (B-2) to come to the U.S. and take NCLEX-RN. Under the new B-1/B-2 regulations passed on 04/12/2002, the port of entry official can issue permission to stay for B-1B-2 entrants only from 30 days to 6 months. In most cases an extension is possible to a maximum of six months since initial admission date on a medical exemption. If no extension is possible, or denied, then immediately leave US, and wait for the immigrant petition to be processed and sent for consular processing. If the applicant stays for more than six months/one year without any legal status, and then depart US there will be a bar for three/ten years to obtain a visa and to enter US.

Section 343 of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996 amended INA and introduced a new ground of inadmissibility for those who enter the U.S. to work as health-care professionals in the following 7 categories: nurses (licensed practical nurses, licensed vocational nurses, registered nurses), occupational therapists, physical therapists, speech language pathologists and audiologists, medical technologists (clinical laboratory scientists), physician assistants, medical technicians (clinical laboratory assistants). By this new law, the federal government created yet another requirement for health-care workers in addition to state licensure and credentials verification requirements. The ground of inadmissibility in plain words means that the immigration authorities are not allowed to admit a health-care worker to come to the U.S. to perform labor in a health-care industry unless he/she presents evidence of being certified by a specifically designated credentialing organization. For nearly seven years, from 1996 to 2003, the immigration authorities did not issue any rule implementing Section 343 requirement and used a series of interim rules to create credentialing requirements for immigrant health-care professionals of the designated 7 groups, including foreign registered nurses. The DHS on July 25, 2003 published the final rules effective September 23, 2003, which specifically mandates the foreign registered nurses who come to the U.S. as non immigrants and immigrants to obtain the Visa Screen certificate from CGFNS before entering the U.S. But the DHS has waived this requirement for non immigrants until September 23, 2004, which means that non immigrants like H1-B1, H1-C, and TN do not need this Visa Screen Certificate from CGFNS until September 23, 2004.

Visa Screen certification is the federal requirement that completely duplicates the state licensure requirements for foreign nurses, similarly requiring verification of a foreign registered nurse's education, experience, foreign licensure, and English language proficiency. Visa Screen certificate, unlike other certification products and services of CGFNS, is valid for the period of 5 years. A foreign registered nurse for whom a U.S. employer has filed an approved immigrant visa petition must present this certificate at the interview in the U.S. Consulate of his/her country of permanent residence in order to be admitted to the U.S. as a permanent resident (if this certificate is available at the time of petition filing, we would advise to include its copy with other supporting documents). Alternatively, if a foreign nurse is a beneficiary of an approved immigrant visa petition and is currently residing in the U.S. he/she must file Visa Screen certificate together with his/her application for adjustment of status.

When filing an immigrant visa petition a U.S. employer must prove to the USCIS its ability to pay an offered wage to a foreign worker. The evidence of such financial ability must be in the form of either copies of annual reports, federal tax returns, or audited financial statements for the last three consecutive years. A US. employer with more than 100 workers may present a statement from its financial or executive officer confirming such financial ability. Specifically, U.S. employers filing an immigrant visa petition for a Schedule A list foreign worker must also submit evidence that the notice of such application filing has been given to the bargaining representative of the employees or, if there is no bargaining unit, to the employees in the form of a copy of either the letter to the bargaining representative or the job offer notice. Provided that a U.S. employer files an immigrant visa petition for a foreign registered nurse with all the required supporting documents, including proofs of the financial ability, foreign registered nurse's education, foreign licensure, and compliance with licensure requirements of the state of intended employment it is guaranteed that a petition will be approved without delays and issuance of lengthy time consuming Requests for Additional Evidence (RFE).

Despite the fact that filing an immigrant visa petition on behalf of a foreign registered nurse is a very straightforward procedure, the preparation of a package of supporting documents to ensure smooth processing and ultimate approval of the case is extremely cumbersome due to numerous federal and state requirements. It takes a very organized and a truly comprehensive approach to succeed in guiding foreign registered nurses through necessary registrations and obtaining necessary documents to support an immigrant visa petition. Only combination of legal expertise and practical knowledge of federal regulations, immigration law, state licensure requirements, and foreign nurses' qualifications can lead to successful approvals of immigrant visa petitions on behalf of qualified foreign registered nurses.

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various sources including Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You can reach Lal Varghese, Attorney at Law at (972) 788-0777 or (972) 788-1555 or Fax (972) 788-2202 or at e-mail: attylal@aol.com, for a free telephone consultation on this subject matter. You can visit our website at: www.indiaimmigrationusa.com for more information about related immigration matters.

EMAIL: attylal@aol.com

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Customer Reviews:

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438 of 857 people found the following review helpful:

   , Feb 22 2006
Reviewer: Krishnamoorthy

This is a nice article. This cleasrs the doubts of many people whether CGFNS is required or not.

Shall appreciaste if you can clarify whether the employer can file the Visa petition for a nurse who has passed only CGFNS and waiting to write the IELTS exam. (Is it necessary to clear both cgfns and ielts) to file the petition.
REgards



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461 of 920 people found the following review helpful:

   , Dec 23 2005
Reviewer: sitaramaiah

see this and understand

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449 of 950 people found the following review helpful:

   , Jul 14 2005
Reviewer: Olga

I think a foreign educated nurse should live almost an eternal life to have enough time to wait for CGFNS and then Nursing Board to get ATT.I waited for a year to get CES report from CGFNS. Now I a have been waiting for a month to get ATT from the nursing board,
and have no idea when and if I finally get one. One bureaucracy
after another. No wonder there is a shortage of nurses in this country.


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432 of 876 people found the following review helpful:

   , Jun 27 2005
Reviewer: K.N.VENUGOPAL

dEAR SIR,
i AM IN USA WITH B1/2 status can it possible to convert as a leagal working visa if please give the details.

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447 of 909 people found the following review helpful:

   , May 12 2005
Reviewer: Mrs. Sinu Paulose

Sir,

I am a registered Graduate Indian Nurse. My USCIS Application Receipt No is LIN0500950840 .And It has been Approved on March 16,2005. Let me know ,what Is the next procedure ?Can I expect my interview for VISA soon ?

Waiting for your reply ,
Thanks and regards,

Sinu Paulose

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453 of 926 people found the following review helpful:

   , May 06 2005
Reviewer: Sona



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448 of 922 people found the following review helpful:

   , Mar 31 2005
Reviewer: mary jo reyes

i just entered u.s.a.(chicagi, illiois) not more than a month ago...as an immigrant together with my parents.i graduated last december from nursing school. unfortunately i still dont have a license,in short am not yet a RN?what should i do in able to work..ive been searching for all the possible "legal action" so i can apply for nclex.can u advise me?

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424 of 901 people found the following review helpful:

   , Mar 29 2005
Reviewer: Rachel

I have read your article and would like to ask what non-immigrant visa can have adjustment of status? Can a student visa be changed to immigrant visa if a hospital will sponsaor you?

Rachel

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