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Thanks to the new global economy, today's talent pool includes not just U.S. workers, but workers from around the world. That's why a comprehensive recruitment plan in the year 2004 often features an immigration component to deal with the regulations governing the employment of foreign workers.
As a health care human resources professional, what aspects of immigration law do you need to incorporate into your staffing and recruitment plans? What strategies can help you ensure retention of foreign-born physicians, nurses, technologists and other professionals? What pitfalls do you need to avoid?
Following are some points to consider.
Included in the Immigration and Nationality Act is section 274A(a). This section provides that it is unlawful for an employer to hire an "alien" (i.e., a non-citizen) knowing that he or she is not authorized to work in the U.S. It also is unlawful to hire anyone without complying with certain "employment verification procedures." Section 274A(b) directs each employer to verify that every employee hired after November, 1986 is authorized to work in the U.S. Verification takes place when the employer and employee complete the "Employment Eligibility Form," commonly known as form I-9.
The I-9 serves two functions. First, it allows employers to assist the INS in enforcing immigration laws. Second, the I-9 may be used as evidence against an employer who fails to properly complete and store the forms, whether or not any of its employees are illegal aliens. Employers also are liable for discrimination that results from an overzealous attempt to comply with the law. Since penalties can reach into the millions of dollars and may include jail sentences, it makes sense to protect yourself and your organization. Make sure that each I-9 is completed fully, and in a timely manner. Make sure that each employee completes Section One of the I-9 on his or her first day. By the third day, each new hire must provide acceptable documentation showing identity and employment eligibility, and the employer must complete Section Two of the I-9. Observe these two deadlines and you already have avoided the most common mistakes.
Keep adequate records. The regulations clearly require employers to keep the original I-9s or a microfiche copy of them. As a safeguard, you may photocopy all documents presented by an employee in support of an I-9, as is permitted, but not required, by INS regulations. If a supporting document turns out to be fraudulent, the photocopy will establish that the employer examined the document and that it appeared to be genuine on its face. Employers aren't expected to be documents experts. A photocopy shows the employer had no visual clues that the document was fake. Of course, you must examine original or certified documents when completing the I-9, not photocopies. It's also a good idea to make an alternate file of the I-9 and supporting documents. In the case of an audit, the U.S. Immigration and Naturalization Service (INS) is likely to confiscate the originals. Having an alternate file allows you and your counsel to build a defense.
It's also useful to store I-9s and supporting documents in files separate from your standard personnel files. In the case of an audit, this will make information retrieval easier and it will lessen the chance government agents will have to pore over confidential personnel information irrelevant to an I-9 audit. In the event of a government inspection, employers are entitled to three days notice to produce their I-9 forms.
These few precautions should help eliminate the risk of immigration penalties and unwanted INS scrutiny
Understand the "H-1B" process.
A few years ago, "H-1B" was a fairly technical term known only to lawyers, HR professionals and immigrants. Now, it's becoming a household word thanks to the labor crunch in both high tech and health care. The H-1B visa is a temporary work visa for professionals, good for up to six years. In most professions where a college degree is necessary, an employer may petition for a worker to obtain an H-1B. In health care, such professionals include dentists, dietitians, medical technologists, nutritionists, occupational therapists, pharmacists, physical therapists, psychologists, recreational therapists, researchers and physicians.
Health care organizations must follow a three-step process to obtain H-1B status for a professional employee.
Step One is a Prevailing Wage Determination. U.S. immigration law requires that all H-1B employees be paid the prevailing wage for their occupation or the actual wage being paid by the employer to other professionals in the same field - whichever is higher. The safest way to establish the prevailing wage is to obtain a letter from the State Workforce Agency (SWA) outlining the prevailing wage for the profession in the state where the professional will be employed.
Step Two is called the Labor Condition Application (LCA). Once the employer has established the prevailing wage it may submit a LCA to the U.S. Department of Labor. The LCA requires the employer to attest that the foreign professional's working conditions will not adversely affect working conditions of U.S. professionals similarly employed. The employer also must attest that there is no lockout or strike taking place in the employee's occupation, that employees or their bargaining representatives have been given a copy of the LCA, and that a copy of the LCA has been given to the employee. By law, the Labor Department must take action on an LCA within seven business days. Severe penalties may be imposed for misrepresentations or failure to comply with statements contained in the LCA.
Step Three is the H-1B Petition. Once an LCA is approved, the employer may submit an H-1B petition to the INS. Documents demonstrating the employee's education, experience and any required licenses must accompany the petition, and the employee cannot begin work until the petition is approved. The employee's spouse and children under 21 may be granted H-4 status, allowing them to stay in the U.S. and attend school, but not to work. The processing time for an H-1B petition varies according to the INS Service Center where it is submitted, but currently stands at over 180 days. However, if employers are willing to pay an extra $1,000 in filing fees to the government, the petition must be processed in 15 days or less under the Premium Processing Program.
Realize that there are H-1B "exceptions."
Two types of professionals - physicians and nurses - are treated differently when it comes to H-1B processing.
In order to obtain an H-1B for the purposes of practicing patient care medicine, physicians must pass all parts of one of the following examinations: (1) United States Medical License Exam (USMLE); (2) National Board of Medical Examiners (NBME); or (3) the Federation Licensing Exam (FLEX). Only the USMLE currently is being given. An international medical graduate (IMG) also must complete a medical residency in the U.S. before he or she can obtain a state medical license (remember that a state license must be attached to the H-1B petition). Even graduates of Canadian medical schools, who are not considered IMGs, must complete one of the exams listed above before they can qualify for an H-1B.
Registered nurses usually aren't considered professionals for purposes of obtaining an H-1B since most hospitals routinely hire staff nurses who lack a Bachelor of Science in Nursing (BSN). However, if an employer can establish that a particular RN position requires a four-year degree (say for a supervisory position), an H-1B may be approved. For the most part, however, there is no temporary visas for nurses. The Nursing Relief For Disadvantaged Areas Act Of 1999 permits certain hospitals to sponsor up to 500 nurses a year to enter the U.S. in temporary "H-1C" status. However, due to restrictions contained in the law, less than a dozen hospitals nationwide have been able to qualify to petition for H-1C nurses. Given the magnitude of the nurse shortage, a generally-applicable temporary visa category for nurses is badly needed.
Don't forget the quota.
Since 1991,there has been a quota on the number of H-1B visas that can be issued during the federal fiscal year (September 30 to October 1). The quota was raised in both 1998 and 2000 to 195,000. On October 1, 2003, the quota fell to its pre-1998 level of 65,000. The quota was reached on February 17, 2004 although there are certain legal exceptions primarily for institutions of higher education and their affiliates as well as for nonprofit and government research organizations.
Look to Canada or Mexico.
H-1B and H-1C visas are not the only temporary visas available to health care professionals. The North American Free Trade Agreement (NAFTA) allows the following health care professionals from Canada or Mexico to enter the U.S. in "TN" or "Trade NAFTA" status: dentists, dietitians, medical technologists, nutritionists, occupational therapists, pharmacists, physicians (teaching and research only), physical therapists, psychologists, recreational therapists and (perhaps most importantly) registered nurses. TN status is relatively easy to obtain and can be renewed indefinitely, which makes Canadian nurses, who usually speak English as their first language, a particularly good option.
Go for the green card.
Generally, a person may remain be employed in the U.S. in H-1B status for a maximum of six years. At the end of six years, the H-1B worker must either leave the country for one year, change to another temporary status, or apply for "adjustment of status" to permanent residence.
There a number of different routes to obtain permanent residence. Most persons obtain permanent residence based on petitions submitted by close family members (e.g., a person married to a U.S. citizen may obtain permanent residence based on the marriage) or by their employers. However, a smaller number obtain permanent residence based on large investments in the U.S., winning the annual visa lottery or through asylum.
This article considers permanent residence through employment.There are three steps to obtaining a green card through employment.
Step One is Labor Certification Unless the foreign professional is a "superstar" (i.e., a person of extraordinary ability in his or her field), an outstanding professor or researcher, or a person whose employment clearly is in the national interest, then his employer must undergo the labor certification process in order obtain a green card on the employee's behalf. Labor certification requires the employer to prove that no U.S. worker is ready, able, or qualified for the job. This entails advertising the position in national journals and evaluating all resumes submitted, a process that can be very time consuming. In the case of certain physicians employed in medically underserved areas, the recruitment process can be reduced or bypassed altogether, if it can be established that the physician's employment is in the national interest. Also, pre-recruitment efforts, also known as reduction in recruitment reduce government processing times somewhat for employers seeking to obtain permanent residence for their employees via labor certification.
Step Two is the Visa Petition. Once the Labor Department has approved labor certification, the employer must submit a Visa Petition to the INS. In the petition, the employer must demonstrate it has the financial ability to pay the worker's salary and establish that the employment is full-time with no definite termination date. Documents establishing the worker's education and prior experience must be attached to the petition. Interestingly, Canadian-trained physicians do not have to show they have passed the USMLE, NBME, or FLEX to obtain a green card, even though they must do so to obtain an H-1B.
Step Three is the Application for Permanent Residence. Once the visa petition is approved, and the worker's priority date is "current" (There are both world-wide and per country quotas governing the length of time that a worker with an approved visa petition must wait to submit an application for a green card.), the worker and his family may apply for permanent residence. This can be done either at the INS Regional Service Center having jurisdiction over his place of residence in the U.S. or at a U.S. Embassy or Consulate in his or her home country. When the application is made to the INS in the States, it is known as an application for adjustment of status. When it is made abroad, it is called an application for an immigrant visa. During the past few years, the time it takes to obtain adjustment of status has increased dramatically from a few months to two years or more. It is much faster to go abroad to be interviewed for an immigrant visa. However, if there are any complications to the employee's case, it may be better to adjust status in the U.S. If an immigrant visa is denied overseas, there is no appeal.
Consider the excludability factor. Applicants for a green cards must show that they are not "excludable" from the U.S. Excludable individuals include criminals, subversives and others. In 1996, the immigration law was changed so that some health care workers are considered "excludable." These include nurses, PTs, OTs, medical technologists, medical technicians, PAs, and speech language pathologists. These workers must obtain a certification that their education, training, and English-language ability are equivalent to U.S. workers in the same occupation before they can obtain green cards.
In addition to the guidelines above, it's important to remember that immigration laws are in a constant state of flux. HR professionals can stay updated through various journals and through a number of web sites devoted to immigration. My web site includes more comprehensive information on the immigration of health care professionals, as well as a free online newsletter with monthly immigration updates. Please feel free to subscribe.
Information About the Law Offices of Carl Shusterman
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