By Stanley Mailman and Stephen Yale-Loehr**

According to the New York Times, Filipinos dominate the nursing profession. See Joseph Berger, From Philippines, With Scrubs, N.Y. Times, Nov. 24, 2003, at B1. A 2001 survey of U.S. nurses, cited in the Times, showed that 41% did their nursing education in the Philippines. But even with all the nurses who came to our shores, more are needed and our immigration law stands in the way.

The sociology of why the United States stopped producing its own Clara Bartons and how the training of nurses became an important Philippine industry will have to be read elsewhere. However, the effects of how Congress dealt with the critical nursing shortage that we faced in the 1970s and 1980s, discussed below, may account, at least in part, for the immigration handicaps that hospitals face today. And they may be felt in the current instability of the H-1 generally. See Stanley Mailman & Stephen Yale-Loehr, Recent Changes in the H-1B Visa Category, New York Law Journal, Oct. 27, 2003, at 3.

It was not until the Immigration Act of 1965, Pub. L. No. 89-236, 79 Stat. 911, essentially did away with restrictions based on race and national origin that Filipinos and other Asians competed equally with immigrants from Europe and Africa for numbers allocated according to skill. As amended in 1970, the new system simply slotted qualified immigrants into "preferences" on a first-come, first-served basis. The third preference embraced "members of the professions," defined to "include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." Pub. L. No. 89-236, § 8(b), 79 Stat. 917 (1965). See Immigration and Nationality Act (INA) § 101(a)(32), 8 U.S.C. § 1101(a)(32).

In one of a series of administrative decisions, the immigration agency (then the Immigration and Naturalization Service or INS) supplemented that definition by holding that registered nurses were members of the professions. Matter of Gutierrez, 12 I. & N. Dec. 418, 420 (District Director 1967) (approving third preference immigrant visa petition for a Philippine nurse who qualified with a three-year nursing-school certificate). The INS did so even though it ordinarily insisted that to be a profession an occupation had to require at the entry level at least a bachelor's degree. It reasoned that "registered nurses have traditionally been regarded as professional persons" and that state licensing authorities and the American Nurses Association are interested in maintaining high standards for the practice of nursing.

Under the current employment-based (EB) third preference category, immigrants continue to qualify for resident visas (also known as green cards) as professionals, but as such they must hold baccalaureate degrees. See INA § 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). Moreover, "[t]o show that the alien is a member of the professions, the petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for entry into the occupation." 8 C.F.R. § 204.5(l)(3)(ii)(C). The second prong effectively rules out most nurses, as something less than a bachelor's degree is normally enough for the average nursing position.

Still, professional nurses continue to qualify for the EB third preference, simply because that category also includes immigrants who can perform skilled labor for which there are no qualified workers in the United States. See INA § 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). It doesn't matter whether a nurse is considered a member of the professions or a skilled worker: both are within the same visa category, for which there are usually ample visa numbers. See 3 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 39.05 (2003). And in either case, the unavailability of U.S. workers has to be certified by the U.S. Department of Labor (DOL). See INA § 212(a)(5)(A)(i), (D), 8 U.S.C. § 1182(a)(5)(A)(i), (D). Here, registered nurses are in a charmed circle. Together with only a single other occupational group, physical therapists, they enjoy a blanket certification under DOL's Schedule A. 20 C.F.R. § 656.10. For them, an employer need not, indeed may not, follow the arduous procedure for individual certification. 20 C.F.R. § 656.22(c).

To qualify for blanket labor certification the nurse must simply show documentary proof that she has passed an exam given by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or holds a full and unrestricted license to practice professional nursing in the state of intended employment. 20 C.F.R. § 656.22(c)(2). That documentation goes not to the DOL, but to the immigration agency (now U.S. Citizenship and Immigration Services or USCIS), which decides whether the nurse meets DOL's blanket certification requirements in the course of passing on the EB-3 immigrant visa petition. 8 C.F.R. § 204.5(l)(3).

Additionally, under a provision now fully implemented for certain immigrant health-care workers, nurses need a CGFNS (visa screen) certificate attesting not only to their professional skills but also their competency in English. INA § 212(a)(5)(C), 8 U.S.C. § 1182(a)(5)(C); 8 C.F.R. § 212.15, as amended, 68 Fed. Reg. 43,901 (July 25, 2003). According to Sylvia Boecker, a Virginia lawyer with a prodigious knowledge of the nursing field, the English tests as currently administered are unrealistically hard. The CGFNS can also issue a certification to nurses who passed the National Council Licensure Examination (NCLEX) and did their nurses' training in certain designated English-speaking countries. See INA § 212(r), 8 U.S.C. § 1182(r).

A professional nurse who qualifies for the visa screen certificate has relatively clear sailing to permanent residence. But it's still a slow journey. It often takes the USCIS over a year to approve the EB-3 petition, and the consulate sometime s close to an additional year to issue the immigrant visa.

In the past, nurses initially came to the United States to work temporarily in some version of the nonimmigrant H-1 classification. As originally written in the 1952 Act, the H-1 described a person "of distinguished merit and ability," with a residence abroad that she had no intention of abandoning, who was coming to the United States temporarily for temporary employment. At the time there was no limit on the number of H-1 visas that could be issued each year.

Two early developments made the H-1 particularly amenable to professional nurses. The most important was Matter of Essex Cryogenics Industries, 14 I. & N. Dec. 196, 197 (Dep. Assoc. Comm'r 1972), which held that simply by qualifying as a member of the professions, a person is deemed to be "of distinguished merit and ability." As Gutierrez had already held nurses to be professionals it became unnecessary to find that a given nurse was "prominent" to stamp her "H-1."

The other development was a 1970 amendment that deleted the second "temporary." Pub. L. No. 91-225, 84 Stat. 116. Until then, not only did H-1 workers have to be coming temporarily, that is in terms of time, but the nature of the work they came to do also had to be temporary. With the 1970 amendment, and given Essex Cryogenics and Gutierrez, foreign nurses could qualify in H-1 for regular staff positions. As U.S. demand rose, more and more foreign nurses qualified to fill it with H-1 visas, many of them from the Philippines, whose nursing schools provided training similar to that given in the United States. By the mid-1980s, U.S. hospitals, faced with critical shortages, had agents scouring Manila and other corners of the Philippines for professional nurses.

Meanwhile, some H-1 nurses were coming to grief over the first "temporary." Working at jobs where they were badly needed, and at the same time seeking permanent residence, many of them sought extensions beyond what the immigration agency accepted as a temporary period. A specific standard of five years or, in extraordinary circumstances, six, imposed by regulation, was hardly enough for nurses who had already been in the United States for seven or eight years, or had overstayed shorter admissions. After a series of informal administrative fixes to accommodate desperate hospitals, Congress stepped in with the Immigration Nursing Relief Act of 1989 (INRA), Pub. L. No. 101-238, 103 Stat. 2099.

INRA was a curious tradeoff. INRA allowed H-1 nurses to remain and adjust to permanent residence without a visa number and despite their overstay. Hospitals were happy to keep them but paid a big--some would say exorbitant--price. INRA introduced a temporary four-year H-1A program exclusively for nurses and meanwhile barred nurses from H-1. To qualify as H-1A employers, hospitals had to file an attestation with DOL, averring, e.g., to their nursing shortage, to their efforts to train, recruit, and retain U.S. nurses, and to their payment of prevailing or higher wages, under penalty of fines, back-pay awards, and ineligibility as an immigration petitioner. See generally Stanley Mailman, The Nursing Relief Act--Will It Work? , New York Law Journal, Jan. 4, 1990, at 3.

By the time the H-1A program expired, the H-1 had been radically recast as the H-1B by the Immigration Act of 1990, Pub. L. No. 101-649, § 205, 104 Stat. 4978, 5019. The classification no longer describes the qualifying nonimmigrant as a person of distinguished merit and ability, except for fashion models. In its chief component are those who qualify in a "specialty occupation," defined as an occupation whose entry level ordinarily requires a specialized university education at the baccalaureate level or higher. According to the immigration agency, that leaves out most professional nursing jobs, as they can be filled by nurses who did their training at a nursing school. Effectively, Congress--or the agency--has reversed Matter of Gutierrez. H-1B remains available only for a narrow range of nursing jobs that demand highly specialized training ordinarily associated with at least a bachelor's degree, e.g., intensive care and supervisory positions.

The H-1A, practically defunct earlier, was replaced by the more limited H-1C program in 1999. See Pub. L. No. 106-95, 1134 Stat. 1312. The H-1C is capped at 500 approvals each year for four years, with subquotas for states, and is restricted to registered nurses working with a health facility in an underserved area. INA §§ 101(a)(15)(H)(i)(c), 212(m), 8 U.S.C. §§ 1101(a)(15)(H)(i)(c), 1182(m); 8 C.F.R. § 214.2(h)(3), 13(ii). It subjects the nurse to stiff qualifying requirements and confines her to a three-year stay. And it subjects the facility to a rigorous attestation regime. See 20 C.F.R. §§ 655.1100-655.1150. All petitions for H-1C nurses must be filed by June 13, 2005. 66 Fed. Reg. 31,107, 31,111 (June 11, 2001) (supplementary information).

Are there other nonimmigrant options for professional nurses? We have the TN (treaty NAFTA) visa category, but it is available only to Canadian and Mexican nurses. See 8 C.F.R. § 214.6. TN nurses must have a state or provincial license, in the case of Canadians, or a licentiatura degree, in the case of Mexicans. And they must meet whatever licensing requirements apply in the state where they intend to work, although they need not pass the CGFNS unless the state requires it.

There is also the H-3 classification for trainees, which necessarily circumscribes the individual's activities and make her less attractive to an employer. See 8 C.F.R. § 214.2(h)(7)(i)(B). Note too that the TN and H-3 are highly temporary classifications and compel the holder to maintain a residence abroad that she has no intention of abandoning. A nurse may find that requirement hard to meet while simultaneously applying for permanent residence in the United States. See INA § 214(b), 8 U.S.C. § 1184(b).

With the H-1B effectively foreclosed for most nursing jobs, hospitals no longer have a prompt and flexible means of filling nursing slots from abroad. The American Hospital Association estimates that the nursing shortage will continue to grow, exceeding 500,000 positions by 2020. Paul Wynn, The Need for Nursing: Healthcare Facing Care-Provision Crisis, Dermatology Times, Mar. 1, 2003, at 50. That result may not have been factored into the negotiations that brought about the 1989 congressional fix known as INRA. But it inevitably followed Whether the H-1B or a similar alternative can still be fashioned to accommodate the need for professional nurses remains an open question. In any event, the current standard for testing the ability of foreign health-care professionals to understand English needs a closer look.

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* This article originally appeared in the December 22, 2003 issue of the New York Law Journal . Copyright © 2003 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.