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Immigrant Options for Registered Nurses

Written by Henry J. Chang

Registered nurses seeking permanent residence in the United States currently benefit from very favorable Department of Labor ("DOL") regulations. These regulations exempt registered nurses from labor certification approval as a prerequisite for employment-based permanent residence.

However, several months before the September 1, 1995 sunset of the H-1A nonimmigrant nurse program created by the Immigration Nursing Relief Act of 1989 ("INRA"), the Immigration Nursing Relief Advisory Committee released its report to the DOL discussing the impact of the INRA on the nursing shortage. The report indicated that "before the ink was dry on INRA the national shortage of the late 1980's had begun to abate". The report stated there was currently no national shortage of registered nurses, although specialty and locality shortages continued to persist. It also indicated that the future market for registered nurses was uncertain.

In light of the above, it is almost certain that the DOL will be taking steps to restrict the immigration of registered nurses in the near future. However, until that time registered nurses seeking U.S. permanent residence will continue to be exempt from labor certification.

Under current regulations, DOL has pre-determined that there are certain occupations for which the employment of aliens will not have an adverse effect on United States workers and for which United States workers are not available. Because of this predetermination an individual labor certification, along with its advertisements and other recruitment efforts, is not necessary. Department of Labor precertifications are discussed elsewhere in the U.S. Immigration Handbook. However, the Schedule A, Group I precertification for registered nurses is briefly discussed below.

Schedule A, Group I includes professional nurses for department of labor precertification. The term "professional nurses" includes only those occupations within Occupational Group No. 075 of the Dictionary of Occupational Titles (4th Ed,).

To qualify for labor precertification as a professional nurse, the alien must document that she has passed the Commission on Graduates of Foreign Nursing Schools ("CGFNS") examination or that she currently holds a valid and unrestricted license to practice in the state of intended employment. Professional nurses who have temporary, provisional or otherwise restricted State licenses are not exempt from the CGFNS exam. They must show that they are permanently and fully licensed in the State of intended employment or pass the CGFNS exam. The CGFNS is an independent, non-profit organization which developed the CGFNS examination to test the capabilities of foreign professional nurses in all areas of nursing for which American nurse graduates are responsible, and to give an objective estimate of their ability to pass licensure examinations in the United States.

Once the professional nurse has satisfied the requirements for eligibility under Schedule A, Group I, she must still fall within one of the employment-based permanent residence categories. Detailed discussions of the employment-based preferences appear elsewhere in this database. However, the applicable employment-based category will be briefly discussed below.

Registered nurses with bachelor degrees in the field of nursing fall under the third employment-based preference and will be classified as professionals. Registered nurses with two or more years of training or experience in the field of nursing will also fall under the third employment-based preference but will be classified as skilled workers. There is currently no difference between the skilled worker and professional classifications.

With regard to other family members, spouses and minor children of the registered nurse will be given derivative immigrant status once the registered nurse has been granted an immigrant visa. However, spouses who have been married less than two years prior to the registered nurse's admission as a permanent residence will be subject to conditional permanent residence for the first two years. For a discussion of conditional permanent residence for newly married couples, refer to the article on family-based immigration.

Although the Department of Labor regulations do not require registered nurses to have obtained CGFNS certification if they hold a full and unrestricted license to practice professional nursing in the State of intended employment, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA") now renders foreign health care workers (i.e. registered nurses) excludable under the new INA 212(a)(5)(C) unless they have obtained such certification.

A subsequent memorandum from the INS clarified that the existing CGFNS certification was not sufficient to overcome INA 212(a)(5)(C). In addition, the INS took the position that it would not accept certifications until its regulations were promulgated.

The INS finally promulgated interim regulations on October 14, 1998, which become effective on December 14, 1998. The interim regulations confirm that CGFNS is the designated credentialing organization for registered nurses. They also confirm that a certificate which meets the requirements stated therein is sufficient to overcome this ground of exclusion. Finally, the regulations confirm that Graduates of health professional programs in Canada (except Quebec) are exempt from the English language requirements of section 343 of IIRAIRA for the duration of the interim regulation. A copy of the INS interim regulations are reproduced here.

Further information on INA 212(a)(5)(C) appears here.

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