H-1C Nurse Law FAQ

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The President signed the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), Public Law 106-95, on November 12, 1999. The law creates an "H-1C" temporary visa for RN's. With a few significant exceptions, it is essentially a carbon copy of the Immigration Nursing Relief Act of 1989. On August 22, 2000, the Department of Labor issued interim final regulations to implement the law. The American Immigration Lawyers Association (AILA) submitted comments regarding the regulations on September 21, 2000.

What follows is a 10-item FAQ (Frequently Asked Questions) regarding the law and the regulations. We hope that this FAQ will serve as a useful tool for hospitals and nurses alike.

Q.1 What is the Nursing Relief for Disadvantaged Areas Act for 1999?

A.1 The law creates a new temporary ("H-1C") visa program which allows foreign-born registered nurses to work up to three years in certain hospitals which serve Health Professional Shortage Areas (HPSAs). The visa program expires in four years and limits the number of visas issued to 500 per year.

Q.2 What health care "facilities" are eligible to sponsor H-1C nurses?

A.2 Only hospitals may sponsor H-1C nurses. Clinics, registries, home health care agencies and skilled nursing facilities are ineligible to do so.

Q.3 How can a hospital determine whether it is located in a HPSA?

A.3 To sponsor H-1C nurses, a hospital must have been in a HPSA on March 30, 1997. A state-by-state listing on all HPSAs on that date is available online.

Requiring hospitals to be located in HPSAs is a bit illogical since whether or not an area is a HPSA is determined by the number of primary care physicians per patient. The number of registered nurses per patient is not part of the calculation.

Using the March 30, 1997 HPSA list is completely absurd since this 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.

Q.4 Other than being located in HPSAs, are there any other qualifications that a hospital must have to sponsor H-1C nurses?

A.4 Yes, the hospitals must fulfill a number of other requirements:

1. 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);

2. At least 35% of the hospital's patients must be covered by Medicare; and

3. At least 28% of the hospital's patients must be covered by Medicaid.

Under the Labor Department regulations, the percentage of Medicare and Medicaid patients are determined by the hospitals' fiscal year 1994 (!) "settled cost report".

Q.5 With all of these requirements, how many hospitals are expected to qualify to petition H-1C nurses?

A.5 The Labor Department has estimated that only 14 hospitals will qualify nationwide. Interestingly, two of the hospitals are located in the congressional district and five in the home state of House Immigration Subcommittee Chairman Lamar Smith (R-TX) who, despite his record as a vigorous opponent of "guest workers", was an outspoken supporter of the H-1C law.

Q.6 When does the program become effective, and what must a hospital do in order to petition H-1C nurses?

A.6 The program becomes effective on September 21, 2000. 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. See the August 1990 issue of the HCSC Immigration Law Review entitled "How To Document The Nurse Attestation Form" - 1.1 MB)

The attestation must certify, among other things, that:

1. The hospital qualifies as a "facility" (see above) under the law;

2. The employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses;

3. The hospital will pay the H-1C nurse the facility wage rate;

4. The hospital is taking timely and significant steps to recruit and retain U.S. nurses;

5. 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;

6. The hospital will notify other workers and give a copy of the attestation to every nurse employed at the facility;

7. No more than 33% of the nurses employed at the facility will be H-1C nurses; and that

8. The hospital will not authorize H-1C nonimmigrants to work at a worksite not under its control and will not transfer an H-1C nurse from one worksite to another.

Q.7 Is there a fee for submitting an attestation? For how long is an attestation valid?

A.7 Yes, the fee is $250. An attestation is valid for one year or until the end of the period of admission of the last H-1C nurse admitted under the attestation, whichever is later.

Q.8 How many H-1C nurses may a hospital apply for in any one year?

A.8 Not only does the law cap the number of nurses who may be petitioned in any one year to 500 nationwide, but it also limits the number of nurses who may be petitioned in any one state. States with populations of nine million or more in the 1990 census are eligible for up to 50 H-1C nurses per year while states with populations of less than nine million in the 1990 census are limited to 25 H-1C nurses per year.

The per-state limitation may have the effect of further restricting the number of H-1C nurses who may be petitioned by qualifying hospitals. For example, five of the 14 hospitals that appear eligible to participate in the H-1C program are located in a single state: Texas. Since Texas's population exceeds nine million, the per-state limitation means that the five qualifying Texas hospitals will be forced to compete for 50 H-1C nurses per year. (The hospitals will NOT receive a per-hospital allocation of 10 nurses each. Instead, the first hospital with an approved attestation who applies for 50 H-1C nurses could conceivably monopolize the state's total!)

Assuming the five Texas hospitals and the two California hospitals use the 100 H-1C slots available to those two states, the remaining seven hospitals could not use all of the 400 slots since each of the seven is in a separate state, and is subject to the 25/50 per-state limitation.

Fortunately, any unused visa numbers will be re-allocated among the states during the last quarter of the Federal fiscal year (July 1 - September 30) without regard to the per-state limitation.

Q.9 Who is eligible to be petitioned as a "nurse" by a qualifying hospital?

A.9 Here is the definition of a "nurse", and we quote"

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:

1. 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;

2. 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,

3. 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.

Q.10 Can H-1C nurses be petitioned for permanent residence, and if so, when should the hospital petition them?

A.10 H-1C nurses may be petitioned for permanent residence. As registered nurses, they are eligible for blanket labor certification. Hospitals would be well advised to petition for their H-1C nurses for permanent residence as soon as possible. The long backlogs for nurses born in India and mainland China, and the coming backlogs for nurses born in the Philippines, give hospitals little choice but to petition such nurses for permanent residence within their first 90 days of employment, or risk losing the services of the nurse after three years in H-1C status.

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