When the December Visa Bulletin indicated that Schedule A visas for registered nurses (RNs) and physical therapists ran out, many wondered if the sitting members of Congress would do anything at all to keep the understaffing situation in US hospitals from getting any worse.
Last week, Congress made only a token effort by reauthorizing the H-1C program under the “Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005” for another three years. But the consensus is this 3-year extension won’t be of much help.
The problem is the H-1C program, by its very nature, is limited and highly restrictive. The H-1C program was created under the Nursing Relief for Disadvantaged Areas Act of 1999. It provided a temporary visa that allowed foreign RNs to work for up to three years in areas designated as “Health Professional Shortage Areas” (HPSAs). The quota for H-1C visas was 500 per year, which was in turn subject to a per-state limit based on its population.
Only hospitals can petition foreign RNs for H-1C. This means, nursing homes, clinics, registries, health care agencies, skilled nursing facilities cannot petition for H-1C.
Moreover, hospitals should be located in a HPSA in order to file an H-1C petition. This requirement has been severely criticized because an HPSA is determined on the basis of the number of primary care physicians per patient. The HPSA does not consider the number of RNs per patient.
In addition, the petitioning hospital must fulfill other requirements such as having a minimum of 190 acute care beds; having at least 35% of its patients covered by Medicare; and at least 28% of the patients covered by Medicaid. It was not surprising therefore that only a few hospitals nationwide were able to sponsor foreign RNs under the H-1C program.
The H-1C sponsorship process itself is limiting that it hardly makes sense for hospitals to go through the expense and trouble. The sponsoring hospital should submit an attestation to the US Labor Department certifying that:
(1) It is a qualified facility;
(2) The employment of H-1C nurses will not adversely affect the wages and working conditions of similarly employed nurses;
(3) The H-1C nurse will be paid the prevailing wage rate at the facility;
(4) It has taken steps to recruit and keep US nurses;
(5) There is no strike or lockout, or that the hiring of the foreign RN will not influence the election of a bargaining representative, or that there will be no lay-offs within 90 days before or after the H-1C petition is filed.
(6) Every nurse in the facility will be notified of the attestation;
(7) H-1C nurses will comprise no more than 33 percent of all nurses in the facility;
(8) It will not allow H-1C nurses to work at worksite it does not control or move H-1Cs from one worksite to another.
The hospital pays $250 per attestation, and such attestation would be valid for one year or until the end of the period of admission f the last H-1C nurse admitted under the attestation, whichever is later.
When the H-1C program was allowed to expire in June 2005, the US healthcare sector hardly even noticed. This program was, if at all, of little help to the critical understaffing problem that threaten that quality of healthcare today.
Some observers have acridly described the 3-year extension of the H-1C program as one of the “few benefit crumbs to a national sorely in need of major immigration benefit relief.”
With the ongoing retrogression, the next Congress must act swiftly and decisively to alleviate the Schedule A visa processing logjam.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/