US Entry Door. Citizen Parent or Grandparents. Application Process Bog. Inadmissibility Gate. Eligibility Bridge

Transcription

1 Welcome

2 Topics for today Identify federal laws applicable to hiring immigrant workers in healthcare Explain standards to follow when hiring a foreign worker with a proper visa Discuss the consequences of hiring an illegal immigrant in healthcare

3 US Entry Door Citizen Parent or Grandparents Inadmissibility Gate Eligibility Bridge Application Process Bog

4 First.... A little legal history Firsts The first immigration office was created in 1864 The Immigration Act of 1891 created the first federal immigration agency The Naturalization Act of 1906 created the Bureau of Immigration and Naturalization As we all know, since 9/11, the Department of Homeland Security has separated these functions again! Now a little law.... Cornerstone Immigration and nationality Act (June 27, 1952) Purpose Regulates the admission of aliens into the United States and [now] designates the Secretary of Homeland Security and the Secretary of State as the principal administrators of its provisions

5 And still more.... Recent Amendments Immigration Reform and Controls Act of 1986 (IRCA) Immigration Act of 1990 (IMMACT90) Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA) Technical Corrections Amendments Act of 1994 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIA96) American Competitiveness and Workforce Improvement Act of 1998 American Competitiveness in the Twenty First Century Act of 2000 Homeland Security Act of 2002 Notable Amendments Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIA96) Tightened employment verification, boarder security, whereabouts of violations and education of the children of illegals American Competitiveness and Workforce Improvement Act of 1998 Protects US workers while temporarily increased the H 1B visa quota through 2001

6 Notable Amendments American Competitiveness in the Twenty First Century Act of 2000 Allowed an increase in the H 1B cap for three years Allows immigrants to change H 1B jobs as soon as an employer files a petition Also allowed immigrants to change employers if the adjustment in status petition is unadjudicated for 180 days

7 Department of Homeland Security Secretary of Homeland Security Michael Chertoff Deputy Secretary Michael P Jackson Undersecretary, Border & Transportation Security (BTS) US Citizenship & Immigration Services (USCIS) Transportation Security Administration (TSA) US Customs & Border Protection (USCBP) US Immigration and Customs Enforcement (ICE)

8 Departmental Structures Administers and enforces immigration laws Exclusively provides services such as processing applications for US citizenship, visa administration and work authorizations Each year 500 million people enter the US. 330 million of them are not US citizens. Departmental Structures The Bureau of Consular Affairs is responsible for the administration and enforcement of immigration and nationality laws that concern the State Department The DOL must determine where an adequate pool of US workers is available to meet the needs of the US economy The DOL ensure that workers seeking admission are fully qualified and fairly compensated.

9 Challenges and Opportunities The nursing shortage sweeping the United States may be worse than even the medical community expected. By the year 2008, another 450,000 nurses may be needed to meet demand, according to government projections. From Dr. Sanjay Gupta CNN Medical News It has been estimated that by the year 2020, the deficit can grow to 600,000 vacancies. Alert! September 10, 2007 Ithaca Journal The healthcare workforce crisis. An article in the Ithaca Journal points out that, according to predictions from the Bureau of Labor Statistics the U.S. will require an additional 703,000 registered nurses, 124,000 practical or vocational nurses and 962,000 direct care workers (nursing assistants, home health and personal care aides) in the decade between 2004 and 2014.

10 Alert! The nursing shortage has also reduced the number of nursing faculty available to teach in nursing programs. This, in turn, limits the number of students a program can enroll. The Center for Health Workforce Studies reported that 59 percent of nursing school applicants in New York were turned away in The shortage also leads to longer hours and a greater per nurse patient load, both factors which contribute to high levels of stress, burnout, and staff turnover. Ratio of Nurses Per Capita Ireland 1:101 Japan 1:206 New Zealand 1:102 Spain 1:208 Australia 1:105 UK 1:222 US 1:123 Taiwan 1:292 Canada 1:134 Denmark 1:730 Although foreign nurses make up only 1% 3% of the RN workforce, they often work in hard to fill positions Ratios are anticipated to be work for therapists.

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12 Overview of the Immigration Process What is a visa and immigration status Common nonimmigrant visas Overview of the Green Card process

13 Visitor Classification: Business Professional E Treaty Trader or Investor H Trainee Professional Temporary Worker or L Intra Company Transferee TN Treaty NAFTA Professionals Other classifications include: Educational, Extraordinary/Internationally Recognized Persons, and Special Purpose Grounds for Denial Physical or mental disorder posing a threat Criminal activity, convictions, prostitution Terrorist activity, adverse effect on foreign policy, past memberships Likely to become a public charge Lack of determination by Secretary of Labor Previously deported, stowaways Smugglers and draft dodgers

14 Let s Focus on the H Status H Status meets a broad spectrum of employment, training, and residency needs ranging from the experienced professional to the trainee. It is reserved only for those who are coming to work in the US in a temporary job. Ref: ER H Subcategories H1 B Professional or Other Skilled Workers Specialty occupation and fashion models H1 C Nurses in Health Professional Shortage Areas Created in the Nursing Relief for Disadvantaged Areas Act of 1999 Allowed entry of registered nurses to deliver healthcare to the underserved No longer in effect

15 Other H 1B Trivia Non immigrants may be admitted for up to three (3) years initially His can normally be extended for another three (3) years or longer After the visa has expired, the alien must remain outside the US for one (1) year before a new H1 B visa period can begin Entry status in another H or permanent status is possible The annual quota is 65,000 for H1 B entries Qualifying Entry Criteria: H1 B Holds as baccalaureate or higher degree from an accredited US or equivalent foreign course of study The degree is common to the industry in positions that parallel those in the employer s firm Holds an unrestricted state license, registration or certification The nature of the duties are so specialized or unique that they are associated with a higher degree

16 H1 B Aliens May Also Need to Show Theoretical, practical application of body of highly specialized knowledge Membership in a professional organization The source of award, including the reputation, size, standing, and membership in these awarding organizations Includes Therapists, Med Tech, etc. USCIS REACHES FY 2008 H 1B CAP USCIS Update April 3, 2007 WASHINGTON U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H 1B petitions to meet the congressionally mandated cap for fiscal year 2008 (FY 2008). As of late Monday afternoon (April 2, 2007), USCIS had received approximately 150,000 cap subject H1 B petitions.

17 Options When H1 B Cap Reached Chile & Singapore Free Trade Agreements (6800 H 1Bs) Qualifying nonprofits or research/government organizations TN for Canadian & Mexican (5,000 max) citizens E 3 for Australian citizens (10,500) O 1 for extraordinary individuals/outstanding researchers E 1/E 2 where treaties apply (Foreign owned companies) Trainee visa (J 1, H 3) The Doctrine of Dual Intent Aliens with nonimmigrant H 1B visas can simultaneously seek permanent resident or immigrant status without jeopardizing their nonimmigrant status By the way: What is a NONIMMIGRANT? Anyone who comes to the US legally, but with only a short term intent to stay The H 1B cap for FY2008 was reached in May 2007

18 The Immigration Process Step 1: Clearing the Department of Labor in the US Step 2: Clearing the BCIS Initial Petition Step 3: Clearing the Department of State abroad Step 4: Clearing Immigration at a US Port of Entry Step 5: Extension or Change/Adjustment of Status Step 1: Clearing the Department of Labor H 1 Candidates must first obtain a job offer and Department of Labor approval before a BCIS petition may be filed To do the same work on the same terms and conditions In the same occupation and area(s0 of employment during the same period H 1B filing of a Labor Condition Application (LCA) may be done online at

19 Step 1 Forms and Supporting Documents Labor Condition Application Nonimmigrant s professional credentials Employer s evidence to support request Job data, Wage statement, Working Conditions Statement, No Strike or Lockout, and Labor Conditions Statement For Registered Professional Nurses Appropriate nursing education in the US or equivalent Unrestricted license to practice The employer will comply with State limitations

20 Step 2: Clearing the BCIS Initial Petition Once the DOL approval has been gained the employer files a petition, I 129,with the BCIS regional service center having jurisdiction If approved, the BCIS issues an Notice of Approval, which the DOS requires Step 2 Documents Needed BCIS Forms I 129 Petition for a Nonimmigrant Worker Base Fee: $190 $1,500 Prior DOL Approval ETA9035 Notice of Acceptance from the Department of Labor Employers evidence to support request Employee Professional Credentials

21 Step 2 So What s Next Upon approval, the BCIS will: Issue an I 797, Notice of Action to the petitioner (the employer keeps the bottom half Cable the Notice of Approval to the American Consulate if the alien will be process at a non US location Grant approval for a three (3) year period The nonimmigrant may now pursue a visa Step 3: Clearing the Department of State Abroad First time H visa applicants must go to their home county US Embassy or consulate The applicant make an appointment for State Department processing at the Embassy where the documents are filed in accordance with the classification The Consular evaluates all documents

22 Step 3 Documents Needed DS 156 Nonimmigrant Visa Application Fees Passport and photograph Prior BCIS and DOL Approvals Current and prior immigration status (I 94) Professional credentials Employers evidence to support request Proof of Commission on Graduates of Foreign Nursing Schools (CGFNS) or other nursing certification

23 Step 4: Clearing the BCBP at the US Port of Entry The nonimmigrant takes all paperwork to the US port of entry and have his/her passport stamped as a legal nonimmigrant A person may enter the US up to ten days prior to their start date to find accommodations and carry out other start up activities. Step 4 Documentation needed Passport Prior BCIS/DOL/DOS Approvals Current and prior immigration status form (I 94) Professional Credentials Evidence to support request Proof of financial support or solvency

24 Step 5: Revalidation / Extension or Change in Status Does not count against the H 1B annual quota Nonimmigrant has thirty (30) day grace period to leave after visa expiration I 129 Renewal petition must be filed ten (10) days before the end of the first H 1b visa expires Must be a valid non immigrant when filed and when approved May not work in the US until the petition is approved Step 5 Documentation Needed DOL form ETA 9035, Labor Condition Application Employer s attestation to support request Includes prevailing wage for type of work Employee s professional credentials The total time a nurse may work, including extension, is five (5) years

25 How do I Retain My H Status? H 1 visa holders must: Obtain another H 1 visa to work at a second full or part time job Obtain a new H 1 visa if changing employers No Nos H 1 visa holders may not Estblish a company that sponsors themselves Work as a contractor or on a freelance basis Sponsor parents Always get their I 94 back when the BCIS approves a petition Be placed on leave without pay Remain in the US for more than thirty (30) days after termination of employment if they have not other legal status Reenter the US as an H 1B for a year (1) after six (6) years in H 1B status

26 TNs (Treaty NAFTA Professionals) Reserved for business professional citizens of Canada and Mexico to enter temporarily Issues for one (1) year at a time and may be annually renewed indefinitely The job may be full or part time No Dual Intent Doctrine So it makes more sense to convert to an H 1B, if seeking permanent status through a green card.

27 TNs (Treaty NAFTA Professionals) Foreign residence required No cap, but immigrant intent remains an issue Processed at border (Canadians), at consulates (Mexicans) or USCIS (extensions) Mexicans Only Step 1: Clearing the Department of Labor Must seek a visa or equivalent prior to entry Employer must submit ETA 9035 Step 2: Clearing the BCIS before entry Must file an application with the Director of the Northern Service Center in Vermont between forty five (45) days and four (4) months of proposed employment Step 3: Clearing the Department of State The consular office must approve the petition

28 Mexicans Only Step 4: Clearing the BCBP at the US Port of Entry Hey! Canadians must clear too! But, they are not required to submit form I 129 Step 5: Revalidation / Extension or Change of Status Canadian and Mexican citizens may file to renew their TN status between forty five (45) and four (4) months before the extension is needed.

29 Green Cards Permanent Resident Card Entry Criteria Your qualification or family relationship The parameters of your chosen profession The supply of available qualified US workers in your function Whether other special conditions influence entry Enables lifelong residence/employment in U.S.

30 Stage 1 (DOL) 1 3 months from filing Stage 2 (CIS) Sometimes filed With Stage months Stage 3 (CIS) Residence Application 2 12 months Total Time: 9 23 Months Permanent Residence for RNs Residing in the US Procedure when the RN is in the US: RN must have CGFNS, State license, or a National council of the State Boards of Nursing certification (NCLEX) Obtain Prevailing Wage Determination Posting Requirement 30 Day Wait Submit I 140/I 485 simultaneously Work card (EAD) and Advance Parole Ability to Pay Letter from the CFO When must VisaScreen be submitted?

31 Permanent Residence for RNs Residing Outside the US Submit visa petition (I 140) with CIS: CGFNS or NCLEX or RN license required NCLEX sites abroad Include Ability to Pay Letter National Visa Center (Portsmouth, NH) RN applies for Green Card at US Consulate abroad Must present VisaScreen certificate Permanent Residence for Allied Health Care Professionals PERM Only Pts (and RNs) exempted Needs I 140 Visa Petition Needs I 145 if the person resides in the US Needs Immigration visa if person resides abroad Backlog is five (5) years except for RNs and PTs 50,000 Green Cards set aside for RNs, PTs. And families are almost gone.

32 Healthcare Certification Evaluation of education, training, licensure and experience Required for temporary visa and for permanent resident status Performed by CFFNS ( VisaScreen ) Alternatives for PTs and OTs Competency in Oral and Written English Performed by IELTS, TOEFL and TOEIC VisaScreen Occupations Nurses Physical Therapists Occupational Therapists Medical Technologists Medical Technicians Speech Language Pathologists Audiologists Physician Assistants

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34 Risks Quality of talent Racketeering Discrimination Employee Sanctions Penalties and Fines Criminal and Civil prosecution RACKETEERING In 1996, Congress expanded the Racketeer Influenced and Corrupt Organizations Act (RICO) to include violations of federal immigration law. 1. Under the new RICO provisions, a violation of certain provisions of the Immigration and Nationality Act (INA) meets the definition of racketeering activity, also known as a "predicate offense," 2 and an entity that engages in a pattern of racketeering activity for financial gain can be held both criminally and civilly liable. 3

35 Employer Sanctions In 2006 alone, over 400 criminal charges have been filed against companies that have hired foreign workers who are not authorized to work in the United States. Employer sanctions, what are they? Until the late 1980s it was not illegal for an employer to hire an undocumented worker. However, with the enactment of the Immigration Reform and Control Act of 1986 (IRCA), Congress made it illegal for employers to hire undocumented workers. IRCA s rules are referred to as employer sanctions. There are three employer sanctions associated with IRCA: 1) Employers are prohibited from knowingly hiring a noncitizen who is not authorized to work fork for them; 2) Employers must verify the identity and work eligibility of all their employees, even if they are US citizens, by filling out an I 9 form and maintaining proper I 9 records. If an employee fails to comply with the verification requirements, the employer must refuse to hire them; and 3) Employers are prohibited from intentionally discriminating in hiring or firing an individual on the basis of an individual s national origin or citizenship status. Employer Sanctions Employers face both civil and criminal sanctions for violating these employer sanctions. Civil sanctions for each offense of employing an unauthorized worker (not including paperwork violations) range from the following: 1. First offense $275 to $2,200 for each worker 2. Second offense $2,200 to $5,500 for each worker 3. Third or more offenses $3,300 to $11,000 for each worker The penalty for paperwork violations (the failure to fill out and maintain I 9 records correctly) range from $110 to $1,100 for each I 9. The severity of criminal sanctions that employers may face for violating the employer sanctions depends on the pattern and practice of the violations. The Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS) defines pattern and practice as regular, repeated, and intentional activities. Criminal violations are reserved for serious and repeat offenders who have clearly demonstrated an intention to evade the law. Criminal penalties can range from $3000 to 6 months in jail.

36 Employment Law Guide Workers in Professional and Specialty Occupations (H 1B and H 1B1Visas) Penalties/Sanctions When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages. Employers found to have committed certain violations may also be precluded from future access to the H 1B program and other immigrant programs for a period of at least one year. Summary Get legal support Start the process at least a year before the employee is needed Hire a specialist to prepare and maintain documentation Be prepared for increased scrutiny on your practices by DOL, CIS, and even the DOS Competition for talent is intense A marathon, not a sprint

37 Resources USCIS website: DOL Processing Times Website: Consular Affairs Website OES Prevailing Wage Survey:

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