LAW OFFICES OF JACOB J. SAPOCHNICK. Permanent Residence For Nurses

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1 LAW OFFICES OF JACOB J. SAPOCHNICK Immigration & Nationality Lawyers 1552 Sixth Avenue 2 th Floor San Diego, CA Tel: (619) info@h1b.biz Permanent Residence For Nurses The nursing shortage in the United States has reached a level where hiring foreign nurses is no longer merely an option but an economic necessity. With this development comes many immigration and naturalization choices for nurses and the institutions employing them. Only with a strong understanding of the immigration system can those in the nursing market hope to identify the appropriate visa option for their situation. In fact, foreign nursing students in this country have more choices and more negotiating power with employers than they may realize. This article outlines specific visa options for nurses seeking permanent residency in the United States. If the RN resides abroad, the following steps must be completed before the nurse may be employed in the U.S.: 1. The RN must be in possession of: a. A diploma from a nursing school in her country; b. An RN license in her country; and c. A full and unrestricted license to practice professional nursing in the state of intended employment, or a certification that she has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS), or evidence that she has passed the NCLEX-RN licensing examination but cannot obtain a license because she lacks a social security number. The following states require that foreign nurses pass the CGFNS examination before taking the state RN licensing (NCLEX) examination: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia and Wyoming. 2. RNs together with physical therapists are listed as shortage, or Schedule A, occupations in regulations (20 C.F.R ) issued by the Department of Labor. An employer who wishes to immigrate an RN is exempt from having to submit an application for alien labor certification to the Department of Labor or to a State Employment Security Agency. The immigration process begins when an employer submits an immigrant visa petition (Form I-140) to the office of the Immigration and Naturalization Service (INS) having jurisdiction over the nurse s place of intended employment. The petition must be accompanied by Labor Department forms ETA-

2 750A and B and by various documents including those listed above. The petition should be accompanied by a check for filing fees. Typically, the INS will approve the visa petition in two to three months. 3. If the RN is a native of one of ten selected countries (including Canada, China and the Philippines), the INS first sends the approved visa petition to the National Visa Center (NVC) in Portsmouth, New Hampshire. If there is no backlog for immigrant visas from the RN s native country (her priority date is current ), the NVC forwards a packet to the nurse or her attorney containing biographical information forms to be completed by her and her family members, and a list of documents which must be presented at her interview for permanent residence. 4. The RN, or her attorney, sends the signed and completed forms to the U.S. consulate where the nurse will have her interview for permanent residence. At this interview, the nurse must present various documents including the following: a. Application for Immigrant Visa b. Police Clearance c. Birth Certificate d. Marriage Certificate, if any e. Divorce or Death Certificate of Spouse, if any f. Valid Passport g. Medical Examination h. Photographs i. Recent job offer letter (or employment contract) j. Financial information regarding employer k. Government filing fee l. VisaScreen Certificate The VisaScreen Certificate requirement was imposed by 343, a last-minute amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It added uncertified health-care workers to the list of persons who are inadmissible to the U.S. See 212(a)(5)(C), INA. A VisaScreen Certificate is issued only after the RN has demonstrated that (1) her education, license and training in her country are equivalent to education, licensure and training in the U.S. and that (2) her level of competence in oral and written English are appropriate to practice professional nursing in the U.S. The INS regulations provide that the only organization authorized to issue VisaScreen certificates to RNs is the Commission on Graduates of Foreign Nursing Schools (CGFNS), the organization which is listed in 343. The CGFNS is located at 3600 Market Street, Philadelphia, PA, ; telephone: (215) ; fax: (215) ; support@cgfns.org Note: It may be very difficult to contact the CGFNS. The CGFNS web site warns that Due to an unusually large volume of phone calls (up to 4000 calls per week), CGFNS' phone lines are extremely busy. Your call is important to us. If you have been unsuccessful in contacting a CGFNS representative by phone,

3 please call after 6:00 p.m. Eastern Time and leave a message, and we will respond as soon as we can. You may also fax or CGFNS, however please be advised that it may take some time before we can respond as we are receiving a marked increase in faxes and s as well. CGFNS is doing everything it can to try and alleviate the large number of calls, faxes and s it is currently receiving. You can now download application packets for most CGFNS programs from the CGFNS web site. Also, please check the web site for the latest news on CGFNS exam dates and sites and other information. CGFNS thanks everyone for their patience. We know your questions and inquiries are important and are making every effort to respond as soon as possible. The INS interim VisaScreen regulations (8 C.F.R ) provide that even if a foreign-born RN is educated, licensed and trained in the U.S., she still must obtain a VisaScreen certificate. Obtaining such a certificate requires a significant expenditure of time, effort and money (over $300) on the part of the nurse. In addition, unless the nurse was educated in an English-speaking country (U.S., Australia, New Zealand, Ireland, United Kingdom or Canada - all provinces except Quebec), she must achieve a certain score on tests in written and spoken English administered by TOEFL (Test Of English As A Foreign Language) or MELAB (Michigan English Language Assessment Battery) in order to qualify for a VisaScreen certificate. (It is no longer possible to take the MELAB for VisaScreen purposes, but sometimes in March 2003, the CGFNS expects to announce that they will start accepting scores from the following testing services: (1) the International English Language Testing Service (IELTS) and (2) the Test of English in International Communications (TOEIC) in addition to the TOEFL. Passing scores for RNs are as follows: IELTS: Academic Module or the General Training Module 6.0, Overall Band Score, 7.0 Speaking TOEFL: Paper-Based 540; TOEFL Computer-Based 207; Test of Written English (TWE) 4.0; Test of Spoken English (TSE) 50. TOEIC: 725; plus TWE: 4.0 and TSE: 50 or Information about taking the TOEFL, IELTS and TOEIC examinations may be obtained from their web sites. They are all offered worldwide. Passing scores for the MELAB were as follows: Final Score 79+; Oral Interview 3+. Generally, the process of obtaining permanent residence may take between 12 to 18 months assuming that the immigrant visa quota from the RN s country of birth is not backlogged. Currently, none of the

4 employment-based quotas are backlogged. However, it is probable that backlogs will develop in the near future for RNs born in India, mainland China, and possibly from the Philippines. If the RN is in the United States, the nurse may be able to start working for the employer more expeditiously than if she resides abroad: 1. The RN is required to have the same documents as stated at the beginning of this article. However, since she is in the U.S., she may take the state licensing examination (officially known as the National Council Licensure Examination for Registered Nurses or NCLEX- RN ). Generally, the NCLEX-RN may only be taken in the U.S., although it is also offered in Guam, Saipan, the Virgin Islands, Puerto Rico and American Samoa. NCLEX officials have indicated that starting in 2004, the NCLEX-RN will be offered abroad. The NCLEX-RN is administered by the National Council of State Boards of Nursing, Inc. For more information about taking the NCLEX-RN, see National Council s web site at This web site contains contact information for nurse licensing boards in each state. 2. The employer must submit an immigrant visa petition to the appropriate INS Service Center on behalf of the nurse. In order for the visa petition to be approved, the RN must have passed either the CGFNS exam or the NCLEX exam, or be in possession of a "full and unrestricted license" as a registered nurses in the state of intended employment. 3. The INS does not forward the approved visa petition to the NVC when an RN submits an application to adjust her status to permanent resident in the U.S. 4. Upon approval of her visa petition, assuming her priority date is current, the RN and her family members (spouse and unmarried children under 21 years of age) may apply for adjustment of status to permanent residence in the U.S. Simultaneously, they may apply for employment authorization cards, and possibly, travel authorization documents ( advance parole ). The number of documents which must be included with an application for adjustment of status is less than is required when one immigrates to the U.S. from abroad. However, a nurse can not qualify for permanent residence until she presents a VisaScreen Certificate. Conclusion 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. Feel free to our office at info@h1b.biz if you have any other questions.

5 Immigrant s timeline Joined nursing agency November Took NCLEX exam June Passed NCLEX exam July I140 filed at VERMONT SC 23rd August Approved February 4th Received Packet 3 February 14th Paid NVC fee 31st March Packet 3 sent 2nd June Received Packet 4 16th July Embassy Interview set for 12th August Embassy Interview postponed till September 5th The contents of this article are provided for general informational purposes and do not constitute legal advice for specific cases, which should only be obtained from an attorney.