Who is a Nurse Qualifying for an H-1C status?
To qualify for an H-1C status a registered nurse must be coming to U.S. temporarily to perform services as a registered nurse and who will perform services at a certified facility.
Which Facilities (Hospitals) are Certified?
Only hospitals may sponsor H-1C nurses. Clinics, registries, home health care agencies and skilled nursing facilities are ineligible to do so. To get a certification the facility must have attested to the Department of Labor that: (i) as of March 31, 1997, it was located in a health professional shortage area (“HPSA”) (as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e)). A state-by-state listing on all HPSAs on that date is available online. The use of the HPSA list as of March 30 1997, does not make a lot of sense because it allows hospitals that are no longer in HPSAs to qualify to sponsor H-1C nurses while hospitals located in areas which have been designated as HPSAs after March 30, 1997 are foreclosed from participating in the program.
The hospitals must fulfill a number of other requirements:
- The hospital must have a minimum of 190 acute care beds (thus eliminating all small and medium-sized hospitals from participating in the H-1C program);
- At least 35% of the hospital's patients must be covered by Medicare; and
- At least 28% of the hospital's patients must be covered by Medicaid.
To qualify to sponsor H-1C nurses, a hospital must obtain the approval of an "attestation" by the Labor Department. (Between 1991 and 1995, our law firm prepared and DOL approved several hundred attestations under the very similar "H-1A" nurse program.
The attestation must certify, among other things, that:
- The hospital qualifies as a "facility" (see above) under the law;
- The employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses;
- The hospital will pay the H-1C nurse the facility wage rate;
- The hospital is taking timely and significant steps to recruit and retain U.S. nurses;
- There is not a strike or lockout at the hospital, that the employment of H-1C nurses is not intended or designed to influence an election for a bargaining representative at the hospital, and that the hospital did not lay off and will not lay off a registered nurse employed by the hospital within 90 days before or after the date of filing an H-1C petition;
- The hospital will notify other workers and give a copy of the attestation to every nurse employed at the facility;
- No more than 33% of the nurses employed at the facility will be H-1C nurses; and that
- The hospital will not authorize H-1C nurses to work at a worksite not under its control and will not transfer an H-1C nurse from one worksite to another.
What Are the Eligibility Requirements for an H-1C Nurse?
Nurse means a person who is or will be authorized by a State Board of Nursing to engage in registered nursing practice in a State or U.S. territory or possession or facility which provides health care services. A staff nurse means a nurse who provides nursing care directly to patients. In order to qualify under this definition of "nurse" the alien must:
- Have obtained a full and unrestricted license to practice nursing in the country where the alien obtained nursing education, or have received nursing education in the United States;
- Have passed the examination given by the Commission on Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full and unrestricted (permanent) license to practice as a registered nurse in the state of intended employment, or have obtained a full and unrestricted (permanent) license in any state or territory of the United States and received temporary authorization to practice as a registered nurse in the state of intended employment; and,
- Be fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to practice as a registered nurse immediately upon admission to the United States and be authorized under such laws to be employed by the employer. For purposes of this paragraph, the temporary or interim licensing may be obtained immediately after the alien enters the United States and registers to take the first available examination for permanent licensure.
The law does not specifically designate any particular examination as an "appropriate examination" for the purpose of meeting the eligibility requirements for the H-1C classification. At present, the only "appropriate examination" available for a prospective H-1C nurse is the examination offered by the Commission on Graduate of Foreign nursing Schools (CGFNS). However, INS may eventually recognize additional examinations for this purpose. Questions concerning the test offered by CGFNS should be directed to CGFNS. CGFNS can be reached through its internet website, www.cgfns.org.
Can an H-1C Nurse Change Employers?
Yes. An alien admitted to the United States as an H-1C nurse can change H-1C employers provided that the alien has not reached the limit on his or her maximum period of stay in the United States. The maximum period of stay for an H-1C nonimmigrant is 3 years. An H-1C petition filed on behalf of an alien in the United States in H-1C status may be approved for a period of time not to exceed the third anniversary of the alien's initial admission into the United States. In addition, H-1C petitions filed by a subsequent facility will be counted against the numerical limitation for the state of the alien's intended employment if the subsequent employment is in a different state. An H-1C nurse may not change employers until such time as the Service approves a new H-1C petition filed in the alien's behalf by the new employer.
Can an H-1C Alien Complete a 3-Year Period of Stay, Depart the United States, and Reapply for Admission as an H-1C at a Later Date?
The statute provides that the period of admission to the United States for H-1C nonimmigrant nurses is 3 years. The Service interprets this 3-year period of time to represent the maximum period of admission for an H-1C alien. The alien's maximum period of admission begins on the date of the alien's initial admission to the United States and ends on the third anniversary of that date. Temporary absences outside of the United States for either business or personal reasons count towards the alien's maximum period of admission. Once an H-1C alien has reached the maximum period of admission in the United States, he or she is ineligible to receive an extension of temporary stay.
Can an H-1C Alien Obtain an Extension of Temporary Stay?
Yes. While an H-1C alien should be admitted to the United States for a maximum period of 3-years, there will be situations where an H-1C alien may not be able to be admitted for the 3-year period of time. For example, the alien's passport may not be valid for the required length of time (See section 212(a)(7)(B)(I) of the Act), or the alien may not be able to depart from his or her home country and apply for admission to the United States on the date that the H-1C petition becomes valid. In no situation may the alien's stay be extended beyond the third anniversary of the alien's initial admission to the United States. In general, all H-1C nurses should be admitted for a period of three years, if otherwise eligible under statute and regulation. In the case of an alien admitted to the United States for a period of time less than 3 years, the facility may file an I-129 petition to extend the alien's stay.
While the statute limits the period of employment for an H-1C alien to a maximum of 3 years, an alien may work for a petitioning employer for a period less than 3 years, depending upon the needs of the employer and the alien.
Can an H-1C Alien Depart the United States After 3 Years and Reapply for Admission as an H-1C Alien at a Later Date?
No. The statutory language of the NRDAA clearly limits the stay of an H-1C alien to a period of three years. To allow an alien to circumvent this 3-year limitation merely by leaving the United States and immediately returning defeats the purpose of the 3-year limitation on the alien's period of admission.
How Many H-1C Nonimmigrant Visas May Be Issued in a Fiscal Year?
The total number of H-1C nonimmigrant visas issued in each fiscal year shall not exceed 500. This is the national cap that cannot be exceeded in a fiscal year. In addition to the national cap of 500, the NRDAA also imposes caps on individual states on the basis of the state's population. The number of visas issued shall not exceed 25 for states with populations of less than 9 million, based upon the 1990 decennial census of population, and shall not exceed 50 for states with populations of 9 million or more. Based on the 1990 decennial census of population, the states with populations of 9 million or more are California, Florida, Illinois, Michigan, New York, Ohio, Pennsylvania, and Texas.
If the total number of visas available during the first three quarters of a fiscal year exceeds the number of qualified H-1C nurses, the excess visas shall be allocated to states, regardless of the states' numerical cap, during the last quarter of the fiscal year. Once
the 500 national cap has been reached, the Service will reject any new petitions subsequently filed requesting a work start date prior to the first day of the next fiscal year.
Are H-1C Nurses Required To Meet Any Licensure Requirements?
Any alien admitted to the United States as an H-1C nonimmigrant must meet all licensing requirements for the state of intended employment and must continue to perform the duties of a registered nurse as an H-1C. Facilities and nurses are expected to comply with the licensing standards established by the state licensing board.
Will the H-1C Classification Expire?
Yes. The H-1C classification will expire 4 years after the date that the regulations are first promulgated. As such, all petitions for H-1C alien nurses must be filed by June 13, 2005. In addition, an H-1C nurse may not be admitted to the United States beyond June 13, 2005.
Is a Facility Responsible for Paying the Alien's Return Transportation Home If the Alien Is Dismissed by the Facility Prior to the End of the Validity Period of the Petition?
No. Unlike the H-1B and H-2B nonimmigrant classifications, the NRDDA does not require a facility to pay the H-1C alien's return trip transportation home.