F. Nurses. INA §101(a)(15)(H)(i)(c), 8 U.S.C. §1101(a)(15)(H) (i)(c); INA §212(m), 8 U.S.C. §1182(m); 66 Fed. Reg. 31107-14 (June 11, 2001); The Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95, 113 Stat. 1312 (Nov. 12, 1999), 145 Cong. Rec. D1307 (Nov. 16, 1999).

1. H-1C. Permits foreign trained nurses to work temporarily at hospitals in Health Professional Shortage Areas (HPSAs). The classification applies to: (1) a person who is coming temporarily to perform services as a registered nurse; (2) meets the requirements of INA §212(m)(1); and (3) will perform services at a facility described in INA §212(m)(6) for which there is an unexpired attestation on file. 8 C.F.R. §214.2(h)(1)(ii)(A). A registered nurse is defined as a person who is or will be authorized by a State Board of Nursing to engage in registered nurse practice in a state or U.S. territory or possession and who is or will be practicing at a facility which provides health care services. 8 C.F.R. §214.2(h)(3)(i)(A). Permits 500 visas per year for 3-year admission. Extensions of stay are not permitted. Law sunsets in 2003. Requires nurse to have: (1) An unrestricted license in home country or be educated in the U.S.; (2) A license in the state of intended employment or pass an exam authorized by HHS; and (3) Proof that s/he is fully qualified and eligible to practice in state of intended employment as RN upon admission. There is an attestation requirement for the hospital in the HPSA area that is valid for one year from the date of filing. The form is ETA-9081 and requires the hospital to attest that: (1) it qualifies as a facility; (2) that employment of H-1C nurses will not adversely affect the wages and working conditions of similarly employed nurses; (3) that the facility will pay the nurse the facility wage rate; (4) that the facility has taken and is taking timely and significant steps to recruit and retain U.S. nurses; (5) that there is no strike or lockout at the facility; (6) that the employer will provide the attestation to every nurse employed at the facility; (7) that no more than 33% of nurses at facility can be H-1C nurses; and (8) that the facility will not authorize H-1Cs to work at a worksite not under its control. 20 C.F.R. §655.1100 et. seq., 65 Fed. Reg. 51138-71 (Aug. 22, 2000).

4. H-1B. A professional nurse may qualify under H-1B if s/he can establish that the position is a specialty occupation and that s/he has a degree or its equivalent pursuant to H-1B regulations. Passing the foreign nurses exam (NCLEX-RN) and state licensure are still required to obtain H-1B status. However, if the only barrier to obtaining a state license is the lack of a social security number, CIS will approve the H-1B petition. The Service has also recognized that nurses who are certified as advanced practice registered nurses (APRN) where the employer requires such certification would qualify for H-1B status. APRNs include Clinical Nurse Specialists (acute care, adult, critical care, gerontological, family, hospice and palliative care, neonatal, pediatric, psychiatric and mental health, neonatal, women's health), Nurse Practitioner (acute care, adult, family, gerontological, pediatric, psychiatric and mental health, neonatal, women's health), Certified Registered Nurse Anesthetist, Certified Nurse-Midwife. Also nurses in administrative positions such as upper level nurse managers where the nurses hold bachelor's degrees may qualify. However, if the hospital does not require a bachelor's degree CIS will not grant H-1B status simply because the agency that hired and referred the nurse required a bachelor's degree.

5. TN-1 Nurses. Under NAFTA, Canadian and Mexican citizens can enter the U.S. as nurses under the TN category without being subject to the H-1B time (6 years) limitation. Mexican national professionals are also no longer required to obtain approval of an I-129 petition and a corresponding labor condition application before obtaining a visa. Nor do they need an LCA when filing an extension on an I-129 in the U.S. 69 Fed. Reg. 11287 (Mar. 10, 2004).

6. Nurses may also enter as H-3. 8 C.F.R. §214.2(h)(7)(i)(B).

7. Visa Screen/Inadmissibility. Nurses are also subject to both temporary and permanent inadmissibility as foreign health care workers if they have not been certified ("visa screen") by the CGFNS (or an equivalent certified independent credentialing agency), INA §§212(a)(5)(C), 212(r), 22 C.F.R. §40.53(a). The ground of inadmissibility applies even to a person who did their training in the U.S. 8 C.F.R. §212.15(c); 68 Fed. Reg. 43901, 43904-05 (July 25, 2003). The legislative history suggests that this section applies to persons seeking entry through NAFTA or any other treaty. H.R. Conf. Rep. 828, 104th Cong., 2d Sess. at 227 (1996); 68 Fed. Reg. 43901, 43904 (July 25, 2003). It includes licensed practical nurses, licensed vocational nurses, and registered nurses. 8 C.F.R. §§212.15(c)(1), 1212.15(c)(1). It also includes persons indirectly involved in health care work such as a supervisory nurse even if she does not engage in clinical work. 63 Fed. Reg. 5507 at 55009. DHS has interpreted the statute to apply at the present time only to those professions listed in the legislative history. 8 C.F.R. §212.15(c), 1212.15(c).

a. The ground of inadmissibility under INA §212(a)(5)(C) does not apply to: (1) nurses performing non-clinical health care such as teachers, researchers, and managers of health care facilities; (2) persons receiving training under F, J or H- 3; (3) spouse and dependent children of an immigrant or NIV holder; and (5) persons obtaining A/S or IV under family-based petitions, employment-based petitions not involving direct medical care, refugee adjustment, registry, cancellation or legalization. 8 C.F.R. 212.15(b), 1212.15(b), 68 Fed. Reg. 43901, 43904 (July 25, 2003). In order to avoid inadmissibility, the nurse must obtain a certified statement pursuant to the criteria established under INA §212(r) or a certification under INA §212(a)(5)(C).

b. Procedure for Certification Under INA §212(a)(5)(C). A person seeking to enter as a nurse is inadmissible unless s/he presents a certificate from the appropriate accrediting agency verifying that: (1) The person's education, training, license and experience are comparable with that required for an American health care worker of the same type; (2) The education, training, license and experience are authentic and in the case of a license, unencumbered; (3) The education, training license and experience meet all applicable statutory and regulatory requirements for admission into the U.S. although the verification is not binding on the DHS; (4) The applicant has passed a predictor licensing or occupation examination recognized by a majority of states licensing the occupation or has passed the actual occupation licensing or certification examination; and (5) The applicant meets certain English language requirements by either graduating from a school in one of several english-speaking countries or by passing an English language test administered by ETS, TOEIC or IELTS. 8 C.F.R. §§212.15(f), (g), 1212.15(f) and (g). The English language examination is administered through either the Educational Testing Service (ETS) (which includes the TOEFL), the Test in English in International Communication Service International (TOEIC) or the International English Language Testing System (IELTS). 8 C.F.R. §§212.15(g)(3), 1212.15(g)(3). The organization affiliated with the Michigan English Language Assessment Battery (MELAB) has decided not to be designated any longer. 68 Fed. Reg. 43901, 43914 (July 25, 2003). Persons are exempt from the English language requirement if they attended college, university or a professional training school in Australia, Canada (except Quebec), Ireland, New Zealand, U.K., or the U.S. 8 C.F.R. §§212.15(g)(2), 1212.15(g)(2). Nurses may also be exempt from an English language proficiency test (as well as a comparability review) if they meet the streamline certification process in their occupation. 8 C.F.R. §§212.15(i), 1212.15(i). A nurse may meet the requirements by taking a predictor examination as specified in 8 C.F.R. §§212.15(f)(1)(iv), 1212.15(f)(1)(iv) instead of the NCLEX. 68 Fed. Reg. 43901, 43914 (July 25, 2003). In addition, a nurse who has graduated from an entry level program accredited by the National League for Nursing Accreditation Commission (NLNAC) or the Commission on Collegiate Nursing Education (CCNE) is exempt from the educational comparability review and English language proficiency testing. If the nurse is not exempt from the English language exam either because of graduation from one of the accredited program under NLNAC or CCNE or because of graduation from a program in an english-speaking country, 8 C.F.R. §§212.15(g), (i), 8 C.F.R. §1212.15(g), (i), s/he must attain a certain score on the ETS (TOEFL), TOEIC, or IELTS exam. 8 C.F.R. §§212.15(g)(4)(ii), 1212.15(g)(4)(ii).

c. Under INA §212(r), 8 U.S.C. §1182(r) and 8 C.F.R. §§212.15(h), 1212.15(h) a nurse may obtained a certified statement necessary to meet the requirements of INA §212(a)(5)(C) instead of a certification as outlined above. Under the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 §4, CGFNS (or an equivalent approved independent credentialing organization) may issue a certified statement (instead of a certificate) if: (1) the individual has a valid unrestricted license as a nurse in a state where the individual is to be employed and the state has verified that any foreign licenses are authentic and unencumbered; (2) the nurse has passed the NCLEX; and (3) the nurse is a graduate of an English-language nursing program; (4) the nursing program was located in Australia, Canada, Ireland, New Zealand, South Africa, the United Kingdom, or the U.S. or in any other country designated by unanimous agreement of CGFNS (or another equivalent credentialing service) approved for certification of nurses and (5) the nursing program was in operation on or before Nov. 12, 1999 or has been approved by unanimous agreement by CGFNS or another equivalent credential- page 534{} ing service. CGFNS has designated nursing programs. 8 C.F.R. §§212.15(h)(2), 1212.15(h)(2). If a certified statement is issued, the nurse need not comply with the certificate requirements or the English language requirements for certification in the regulations.

G. Athletes and Entertainers. Athletes and entertainers have been removed from the H-1B category and placed in new categories as O and P nonimmigrants.

H. Physicians. 8 C.F.R. §214.2(h)(4)(viii):

1. Effective Dec. 12, 1991 by virtue of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-282, Section 303(a)(5), a foreign physician may now enter the U.S. under certain conditions to practice medicine with an H-1B. This provision amends INA §§212(j)(2) and 101(a)(15)(H)(i)(b) to permit a graduate of a medical school who is coming to the U.S. to perform services as a member of the medical profession, if:

a. S/he is coming pursuant to an invitation from a public or nonprofit private educational or research institution or agency in the U.S. to teach or conduct research, or both, at or for such institution or agency (physician may do incidental patient care); or has complied with each of the following

(1) Has passed the Federation licensing examination (administered by the Federation of State Medical Boards of the U.S.) or an equivalent examination as determined by the Secretary of Health and Human Services. Parts 1 & 2 of FLEX (Federation Licensing Examination), and Steps 1, 2 &3 of the NBME (National Board of Medical Examiners) have been replaced by Steps 1, 2 and 3 of the USMLE (U.S. Medical Licensing Examination). The Service will not accept a combination of these examinations for establishing eligibility for H-1B status; and

(2) Has competency in oral and written English, as demonstrated by passage of the English language proficiency test given by ECFMG (Educational Commission for Foreign Medical Graduates), or is a graduate of a school of medicine which is accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless whether the school of medicine is in the U.S.).

(a) ECFMG certification is required for all foreign physicians as a prerequisite for entering medical training programs in the U.S. Applicants must pass four examinations for ECFMG certification: USMLE Steps 1 & 2 (or its equivalent), TOEFL (Test of English as a Foreign Language) and CAS (Clinical Skills Assessment). Candidates need only take USMLE Step 1 and TOEFL prior to taking the CAS exam.

b. Foreign physicians seeking H-1B status must also:

(1) Have a license to practice medicine from a foreign state, or have graduated from a medical school in the U.S. or in a foreign state, and

(2) If s/he will provide direct patient care, must also have a medical license or other authorization to practice medicine required by the state of intended employment.

c. A person in a residency program may also be approved for an H-1B.

2. As in the case of all H-1Bs, the employer must submit with the petition certification from the DOL that it has filed an LCA, as well as all necessary documentation to establish the above licenses and examinations.

3. Foreign physicians may also enter without the certifying examinations where:

a. Physician is of national or international renown. Under INA §101(a)(41), 8 U.S.C. §1101(a)(41), doctors of national or international renown are not within the definition of foreign medical graduates and are therefore exempt from the restriction.

b. Physician not "coming to perform services as members of the medical profession" under INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b) (e.g., administrator of drug company). Physicians who are seeking to enter as physician's assistant or medical researchers not eligible for H-1 if they are involved "in any manner whatsoever in direct patient care."

c. Graduated from a U.S. medical school. 8 C.F.R. §214.2(h)(4)(viii)(B)(2).

4. C/S for foreign medical graduates with INA §212(e) problem. May now C/S to H-1B if s/he otherwise meets requirements for C/S and 212(e) waiver and qualified under INA §214(l) . However, if s/he does C/S s/he is ineligible for IV or A/S or any other NIV if s/he fails to fulfill the terms of the contract with the health facility in shortage area which now requires a 3-year commitment. INA §214(l)(2)(A); 8 C.F.R. §§212.7(c)(9), 1212.7(c)(9). In addition INA §222(g) does not apply to J-1 foreign physicians in D/S unless CIS or an IJ has determined a status violation.

5. Overstays. Dept. of State has recognized that foreign physicians who are meeting the requirements of 214(l) are going to work in a medically under served area, and have timely applied for the waiver or petition but have overstayed while waiting for an approval will be treated under the extraordinary circumstances provision of the overstay provisions of INA §222(g) if the waiver and petition were subsequently approved.

6. Extensions/H-1B Cap. DOS will allow J-1 alien physicians to extend their status beyond the period of actual training to take their specialty Board examinations. The maximum duration of any such extension is six months. The extension is limited until the end of the month in which the Board examination is given but not to exceed six months. 64 Fed. Reg. 34982-83 (June 30, 1999). The mere filing of a INA §212(e) waiver application will not disqualify a J-1 physician from extending the period of J-1 status; rather, it is only upon adjudication of the waiver by DOS which results in an ineligibility to extend status. A J-1 who has obtained a waiver pursuant to the State 30 program is not subject to the H-1B cap.

7. Foreign physician not statutorily eligible for H-2B, H-3 or TN. 9 FAM 41.53 N4.2-7. However, medical students may qualify for H-3s if the student will engage in employment as an extern during his or her medical school vacation. 9 FAM 41.53 N20. Also foreign physicians may enter under TN category but only to teach or do research (with incidental patient care). They may not enter to practice medicine under TN even if they graduated from a U.S. medical school (although they were permitted to do so under the former TC category).

8. Physician eligible for O visa. Although a J-1 physician subject to the 2-year foreign residency requirement under INA §212(e) cannot C/S to an O because INA §248 prohibits it, s/he may still obtain an O visa by going abroad. However, at completion of O s/he is still subject to the 2-year foreign residency requirement.

9. Physicians as Investors. A foreign physician may invest in a medical practice and obtain an E-2 visa if s/he is from a treaty country and is not involved in patient care.

10. Foreign Medical Student.

a. May obtain H-1B for residency program.

b. May obtain B-1 (in lieu of H-3) if coming to take an "elective clerkship." But if person has already graduated (FMG) the B-1 (and F-1) is unavailable.

I. Fast Track-H-1B1 Visas. INA §101(a)(15)(H)(i)(b)(1), 8 U.S.C. §1101(a)(15)(H)(i)(b)(1); INA §212(g)(8)(A), 8 U.S.C. §1101(g)(8)(A); H.R. 2738, Pub. L. 108-77, 117 Stat. 909, H.R. 1739, Pub. L. 108-78, 117 Stat. 947; H.R. Rep. No. 108-224, pt. 2 at 6-11, 15-20, 36- 46 (2003); H.R. Rep. No. 108-225, pt. 2. at 5-11, 15-16 (2003); 9 FAM 41.53 N27-28

1. The U.S.-Chile Free Trade Agreement and the U.S.-Singapore Free Trade Agreement provide for E-1 (Treaty Trader) and E-2 (Treaty Investor) visas as well as a new category of H-1B1 visas.

2. H-1B1 Visas:

a. For persons in a "specialty occupation" that requires: (i) theoretical and practical application of a body of specialized knowledge and (ii) attainment of a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S. According to the legislative history of this provision: "The requirement is to be interpreted identically to the requirement to qualify as a professional under the H-1B category (except as regarding four professions listed in appendix 14.3(D)(2) of the U.S.-Chile Free Trade Agreement)." H.R. Rep. No. 108-224, pt. 2 at 17 (2003). The four categories that are excepted are Agricultural Manager and Physical Therapist (for persons from Chile) and Management Consultants and Disaster Relief Claims Adjusters (for persons from Chile or Singapore). 9 FAM 41.53 N28.4(B).

b. No DHS petition required. Applicant gets visa directly at U.S. consulate.

c. No licensure requirement as a prerequisite to admission on H-1B1. Applicant expected to comply with licensure requirement following their admission where profession requires state license; 9 FAM 41.53 N28.6.

d. Labor attestation like the LCA needed on Form 9035 or 9035E annotated as H-1B1-Chile or H-1B1-Singapore. 9 FAM 41.53 N28.8(B).

e. Visa granted for one year. Extensions are not limited to six years. After every second extension new LCAs are required because the next extension may only be granted if the Sec. of DOL certifies to DHS and DOS that the intending employer has filed a new LCA.

f. Subject to INA §214(b) and proof H-1B1 applicant has no intention of abandoning his residency abroad and becoming an LPR. 9 FAM 41.53 N28.5

g. Change of Status. A I-129 application should be accompanied by: (1) Letter from U.S. employer stating activity to be engaged in, anticipated length of stay and arrangements for remuneration; (2) Evidence that education requirements are met; and (3) Labor attestation.

h. Numerical Limit of Visa Reduces H-1B cap to extent used. Chile: 1,400; Singapore: 5,4000

J. H-2A and H-2B Visas. INA §101(a)(15)(H)(ii)(a) and (b), 8 U.S.C. §1101(a)(l5)(H)(ii)(a) and (b); 8 C.F.R. §214.2(h)(5) and (6).

1. Definition:

a. H-2 category is divided between temporary workers performing "agricultural labor or services ... of a temporary or seasonal nature," INA §101(a)(15)(H)(ii)(a), and temporary workers performing "other temporary service or labor." INA §101(a)(15)(H)(ii)(b).

b. To qualify for H-2:

(1) Applicant must be coming temporarily to U.S.

(2) Applicant must be performing temporary services/labor.

(3) Employer must demonstrate that no U.S. workers capable of performing such service/labor are available in U.S. Under the H-2A program there is a 50% rule, which requires employers to hire qualified U.S. farmworkers who apply for the job until 50% of the contract period has been completed. 55 Fed. Reg. 29356 (July 19, 1990). Employer must engage in serious recruitment, including use of electronic data banks via SWAs.

2. Proposed requirements for H-2A. The regulations issued by INS giving DOL the authority to adjudicate both the labor certification and the H-2A petition have been withdrawn. 67 Fed. Reg. 59779-01 at 59780 (Sept. 24, 2002), 67 Fed. Reg. 61474-76 (Oct. 1, 2000).

3. Requirements for H-2B-GAL No. 1-95 (Nov. 10, 1994).

a. Must get temporary labor certification, 20 C.F.R. §655, demonstrating that: (1) No USC/LPR workers are available for position; (2) Employment of aliens will not adversely affect wage rate and working conditions of similarly employed workers in the U.S. 8 C.F.R. §§214.2(h)(6)(i), (6)(iv)(A)(1).

b. Must demonstrate that the request for labor is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.

c. Multiple beneficiaries may be requested if they will do the same type of work on the same terms and conditions in the same occupation and area of employment. But cannot request more beneficiaries than job openings.

d. If work done in more than one location, application must include the itinerary of locations and dates of work in each location. Must file application with SWA where employment will begin.

e. Must demonstrate that there is no labor dispute at the workplace.

f. Not available to doctors.

g. Position is temporary

(1) To determine whether job is temporary the Service does not look to the nature of the duties, but rather, to the nature of the employer's need. 8 C.F.R. §214.2(h)(6)(ii)(B).

h. Procedure. Set forth in GAL Nos. 10-84, 1-95.

(1) Obtain labor certification approval. 20 C.F.R. 655.1 to 655.4 [Nonagriculture]; 20 C.F.R. §655.101 et seq. [Agriculture]. 60- to 120-day notice for H- 2Bs, 45-day notice for H-2As; advertising; consulting with local unions; documentation of effort to recruit U.S. workers.

(2) Submit approval with I-129 to CIS. In "emergent situations" where all the beneficiaries are not known, multiple petitions may be filed for beneficiaries subsequent to the initial filing. 8 C.F.R. §214.2(h)(2)(iii). Allowing petitions with unnamed beneficiaries is "the exception, not the norm" and the Service should not grant the exception without evidence from the employer clearly describing the business reasons why beneficiaries are unnamed.

(a) Dept. of Labor's approval or denial given great weight by CIS, O.I. §214.2(h)(5)(iv)(A), but CIS not bound by Dept. of Labor's decision.

(3) Substitution of Beneficiaries. 8 C.F.R. §214.2(h)(2)(iv). CIS may substitute H-2B beneficiaries where (a) petition was approved for unnamed beneficiaries; (b) the approval is for a group; or (c) the job does not require education, teaching or experience. This may be done by letter with a copy of the approval notice and the beneficiaries' credentials. A consular officer may substitute beneficiaries on approved H-2B group petitions without obtaining the Service's approval if the qualifications of individual beneficiaries on the group petition will not be or were not considered in according the H classification.

(4) Transportation home. If H-2B is dismissed before the end of the period for admission the employer must pay "the reasonable costs of return transportation of the alien abroad." INA §214(c)(5)(A), 8 U.S.C. §1184(c)(5)(A); 8 C.F.R. §214.2(h)(6)(vi)(E).

i. Admission and Extension

(1) Admitted for time on labor certificate but no more than 1 year. 8 C.F.R. §214.2(h)(9)(iii)(B).

(2) Extension not more than 12 months and maximum of 3 years, given only in extraordinary circumstances. GAL 1-95, supra. Must have new labor cert. or notice that certification cannot be made. Cannot obtain C/S, E/S or readmission if H-2B in U.S. for 3 years in H/L category unless s/he has resided and been physically present outside U.S. for 6 months immediately prior to application. 8 C.F.R. §§214.2(h)(13)(iv); 214.2(h)(15)(ii)(C).

(3) H-2B is limited to 66,000 visas a year. They are issued in order of filing and the limitation is not applicable to spouse and children. Cap reached for first time in March, 2004.

(4) Can submit multiple beneficiaries on one petition if they will be performing the same service, for the same period of time in the same location. 8 C.F.R. §214.2(h)(2)(ii).

j. H-2 to Employment-based Preference.

(1) Where same employer need to show position is different.

(2) If present labor certification is approved or preference petition is filed DHS regulation provides no H-2 extension will be granted. 8 C.F.R. §214.2(h)(16)(ii).

k. Judicial Review. A USC denied job advertised for H-2B position has no standing to sue under INA or False Claims Act, but may have claim under 42 U.S.C. §1981 (a) [Civil Rights Act].