1. Congress Restores National Interest Waivers for Foreign Doctors

2. H-1C Visas for Nurses

1. Congress Restores National Interest Waivers for Foreign Doctors

President Clinton has signed a law to help foreign doctors obtain immigrant visas. The legislation, enacted November 12, restores national interest waivers to physicians if they agree to work at least five years in medically underserved areas or at Veterans Administration hospitals. This provision essentially restores the situation that existed for foreign physicians before the Immigration and Naturalization Service’s decision in Matter of New York State Department of Transportation, which significantly restricted national interest waivers generally.

This legislation does not directly affect physicians who already have approved I-140 immigrant visa petitions. The new law also does not affect the J waiver process, which generally requires physicians benefiting from an interested government agency waiver recommendation to work at least three years in the shortage area. What this law DOES do is allow those physicians with interested government agency J waivers based on a contract to provide three years of service in a shortage area to apply for green cards based on the same documentation, supplemented by an additional promise to work two more years in ANY shortage area.

The new law’s provisions include the following key points:

• The foreign doctor must agree to work full time as a physician in an area designated by the Department of Health and Human Services as having a shortage of doctors or at a Veterans Administration health care facility.
• A federal agency or a department of public health in any state must have previously determined that the foreign physician's work in the area of the petitioning facility is in the public interest. Generally this means that the doctor has obtained an interested government agency J-1 home residency waiver.
• The doctor can begin final processing for a green card before the five years is up, but cannot complete the process until he or she has served five years.

The new law does not affect doctors who received an approved national interest waiver before November 12, 1999, the date of enactment. For physicians with pending national interest waiver applications filed before November 1, 1998, the five year requirement is reduced to three years. For everyone else, the five year requirement applies.

The new law leaves some questions unanswered. For example, what happens if a doctor changes jobs during the five-year commitment to another job in a different shortage area? Similarly, what happens if a doctor filed a national interest waiver before November 1, 1998, but the INS denied it after that date? Can the doctor file a motion to reopen the case now? If so, would he or she have to work three years or five years? We will have to wait and see how the Immigration and Naturalization Service interprets these and other questions.

2. H-1C Visas for Nurses

The same law also creates a new H-1C nonimmigrant visa category for nurses. The program is very similar to the old H-1A visa category, but limits the number of visas issued annually to 500 and restricts the category to facilities in health professional shortage areas. Under the new H-1C program, nurses must meet the following qualifications:

• They must have obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained his or her nursing education or, alternatively, the nurse must have been educated in the United States;
• They must have passed an appropriate examination (to be determined by regulation) or have a full and unrestricted license under the laws of the state where the nurse intends to work; and
• They must be fully qualified and eligible under the laws (including temporary or interim licensing requirements) governing the place of intended employment to engage in the practice of professional nursing as a registered nurse immediately upon admission to the United States.

These provisions are very similar to the old H-1A visa rules.

Also like the old H-1A category, employers must attest to the following:

• Employing the foreign nurse will not adversely affect the wages and working conditions of other similarly employed nurses;
• The foreign nurse will be paid the wage rate for nurses similarly employed by the facility;
• The facility is taking timely and significant steps designed to hire sufficient registered U.S. nurses to end the facility's dependence on the H-1C program;
• There is no strike or lockout, the facility has not had layoffs and will not lay off a registered nurse within 90 days before and after the filing of an H-1C petition, and the hiring of the H-1C nurse is not intended to influence the election of a union to represent nurses at the facility;
• The facility has provided notice of the filing to the union for the nurses or, where there is no union, has given notice of the filing by posting it in conspicuous locations;
• The number of H-1C nurses will not exceed 33% of the total number of registered nurses employed at the facility; and
• The facility will not let H-1C nurses perform nursing services at any work site other than a work site controlled by the facility or transfer the H-1C nurse from one work site to another.

The new law also eases the certification requirement for nurses if the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an approved equivalent independent credentialing organization certifies that the alien:

• Has a valid and unrestricted license as a nurse in a state where he or she will be working and the state verifies that the foreign nurse's licese is authentic and unencumbered;
• Has passed the National Council Licensure Examination (NCLEX);
• Is the graduate of a nursing program taught in English and the CGFNS has designated that the quality of nursing education in that country and the English language skills of those country's nursing graduates is sufficient; and
• Is a graduate of a nursing program that existed on or before November 12 or has been approved by unanimous consent of CGFNS and any other approved credentialing organization.

If you would like us to advise you further in this regard, please contact Hilary Fraser (htf@millermayer.com) or Rosie Mayer (rm@millermayer.com) Steve Yale-Loehr (syl@millermayer.com) at Miller Mayer.