Hospitals and other health facilities are using nurse staffing agencies more frequently because they can provide absentee coverage on short notice.
Most of these agencies are playing an important role in easing the nursing shortage. A few, however, have been the subject of complaints by their nurse employees. Many of these nurses are recruited from overseas.
These nurses are promised work in a particular hospital in a certain area but when they arrive in the United States, they are sent to work in different locations under substandard working conditions. It is not uncommon for them to work in two (2) locations in one day.
It is not surprising therefore that the United States Citizenship and Immigration Services (USCIS) carefully scrutinizes immigrant visa petitions filed by these agencies.
Some of the issues that are examined are whether a prearranged employment exists, whether the prevailing wage will be paid and whether the agency has the financial resources to pay the nurses.
They must meet specific posting requirements. The agency must post the notice of the nurse job availability where the employee will work and publish the notice internally using in-house media in accordance with its normal internal procedures.
The prevailing wage specified in the notice will be the wage in the area of intended employment. The wage rate is obtained from the State Workforce Agency (SWA). The immigrant visa petition should be filed within the validity period of the SWA determination.
If the agency does not know where the nurses will be employed, as it is usually the case, the agency will be obliged to post the job notice at all the worksites of all its locations or clients where relevant workers are currently placed. It must publish the job notice in its electronic and print media. The prevailing wage in the notices must be the wage in the area of the agency’s headquarters.
If the agency cannot specify a worksite where the nurse will be employed or if it has no current location or clients, the immigrant visa petition will be denied. Under such circumstances, the job will be deemed not to exist.
Ability to Pay
The agency must also prove that it has the ability to pay the annual salaries of all the nurses that it is petitioning. This may be difficult to demonstrate especially if the agency is relatively new.
Usually the tax returns or other financial documents are submitted with the petition but if they show a negative income, the USCIS will disapprove the petition unless it can show that it has a reasonable expectation of future profit.
The agency should present copies of current contracts with hospitals and other health facilities showing that the agency income from such contracts will be enough to pay the cumulative annual wages of all the nurses.
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 www.seguritan.com