Recruiting And Employing Foreign Nationals Health Care Workers

This article is intended to provide some basic information about the recruitment of foreign health care workers and compliance with immigration laws. It is not intended to be exhaustive, but is an example of issues that human resource specialists need to consider when hiring foreign workers.

Several visa types are common when companies are recruiting foreign nationals for employment. Three instances arise most frequently that would trigger a human resource specialist to consider the following visa types: 1) the desire to hire a foreign national student who is already in the U.S. in F-1 status, 2) the desire to hire a foreign national who is already in the U.S. in H-1B, H-1C or TN status and 3) the desire to hire a foreign national who is outside the U.S.

As a general rule, an employer can ask in its application process whether an individual is authorized for employment in the U.S. or will require sponsorship, such as H-1B. If a person says he/she needs sponsorship, an employer can ask questions about current immigration status and determine what would need to be done to employ him/her. Questions regarding the individual’s citizenship or nationality at this point should be avoided to ensure that the individual does not claim national origin discrimination should a dispute arise in the future.

Generally if the person says he/she is authorized for employment and does not need sponsorship, a prospective employer should not request to see documentation proving authorization for employment until the employee starts employment and completes an employment verification form, Form I-9. An employer may want to send the I-9 employment verification form to individuals who have been offered a position and indicate that the form will need to be completed on the first day of employment and the individual must be able to provide the proper documentation.

Useful Nonimmigrant Categories

F-1 Status – Students

When a student is studying pursuant to an F-1 visa they are allowed employment authorization under limited conditions. Two of these options are curricular practical training and optional practical training.

Curricular Practical Training

This type of employment is available to a student as long as it is related to the student’s course of study, such as an internship/externship coordinated between the school and the employer, or is mandated by the school in order to fulfill the degree requirements. In order to be eligible for curricular practical training, the student must have completed nine months of study at the undergraduate level. There is no such eligibility requirement for a graduate student.

The employment opportunity must qualify for academic credit and be listed in the course description book as employment with a purpose of promoting hands-on experience where a faculty member monitors the progress of the student. While there is no limit to the time a student may be employed in curricular practical training, if the student remains in curricular practical training full time for more than twelve months he/she will later be ineligible for optional practical training.

The student may be authorized for curricular practical training by the designated school official who writes the authorization on the back of the student’s I-20 form. The student does not need to apply for an employment authorization document from the INS in order to start curricular practical training. This annotation on the back of the Form I-20 is a work authorization document for purposes of List C of the I-9 form.

Optional Practical Training

This type of employment of a student is more common than curricular practical training. As with curricular practical training, optional practical training should relate to the course of study. Unlike curricular practical training, the school does not have to approve of or monitor the student’s progress while employed. The student must have pursued a full-time course of study for nine consecutive months prior to obtaining optional practical training and is limited to one year of employment.

Optional practical training may only be pursued at the following four times during a course of study: 1) during the school year while classes are in session (part-time only), 2) during the times when school is not in session (i.e. summer vacations or other regularly scheduled vacations), 3) after all course requirements are completed if the student is pursuing a bachelor’s, master’s or doctoral degree and 4) after the degree is obtained.

The student must apply to the INS for an employment authorization document. S/he must have the EAD in hand before starting work – the notice from the INS confirming receipt of the application for the EAD is not enough. The EAD would be a List A document for I-9 purposes. An important item to remember with optional practical training is that if the INS grants work authorization for optional practical training and the student decides not to work or cannot find employment they have lost their opportunity to pursue optional practical training in the future and they will not be able to apply later. In addition, the employment should be related to the student’s field of study.

The H-1B visa is available to those individuals whose services are sought by a U.S. employer in a "specialty occupation." To qualify for an H-1B temporary worker status, the foreign national must have at least a bachelor’s level degree, the foreign equivalent or have the equivalent of a degree in professional work experience in a field which is regarded by the INS as professional.

Nurses generally do not qualify for H-1B unless the position requires a person who has a four year university degree in nursing. As most hospitals do not require their RNs to possess a Bachelors degree, requesting one would be restrictive. However, there are some supervisory/managerial and teaching positions which would qualify for H-1B status. Common medical professions for H-1B status include physician, physical therapist, occupational therapist, and nutritionist, among others.

The I-94 showing entry in H-1B status for employment with the sponsoring employer plus the foreign passport would together be the List A document for purposes of completing the I-9 form. In order to qualify for H-1B status, when a profession requires a license, the individual must have a license to practice the profession in the state of intended employment. Medical professionals including nurses have very specific licensing requirements and certificates required for state licensing and visa issuance that are outside the scope of this article but should be addressed by anyone considering the H-1B program for nurses.

The North American Free Trade Agreement provides that Canadian and Mexican citizens can apply to enter the U.S.. for employment in certain professional occupations listed in a NAFTA appendix. The individual must meet the requirements for the listed occupation in which he/she is being employed in the U.S. Generally a bachelors degree in a field related to the occupation is required. The TN designation is employer specific. If someone presents an I-94 designated for TN status for another employer, he/she cannot work for a second employer.

Canadian citizens can be processed at the U.S. border. So a Canadian with an offer letter from the employer could apply for TN status at the border and start work quickly. Mexican citizens are required to go through a process very similar to the H-1B, which can take several months (paying an extra $1,000 premium processing fee to the INS will expedite this process resulting in a wait of several weeks instead of several months).

Common medical occupations for TN status are registered nurse, physical therapist, occupational therapist, medical laboratory technologist, pharmacist, psychologist, and physician (teaching or research only). Nurses must have a license to practice nursing in the state of intended employment prior to entry. The I-94 stamped for TN for the employer plus the Canadian or Mexican passport together would be the List A document for I-9 purposes.

The H-1C visa was established to provide registered nurses with an opportunity to work in health professional shortage areas for a period of 3 years. This is a non-immigrant visa that is currently limited to 500 nurses annually. It is limited to 50 nurses per state with a population of more than 9 million and 25 nurses per state with a population less than 9 million.

The Immigration and Naturalization Service (INS) will determine who receives an H-1C visa based on the following requirements. A nurse must:

• have a full and unrestricted license to practice professional nursing in the country where they obtained their nursing education or home country
• have passed an appropriate examination (CGFNS), or have a full and unrestricted license to practice as a registered nurse in the state of intended employment; and
• be fully qualified and eligible under the state laws and regulations of the state of intended employment to practice as a registered nurse immediately upon admission to the United States.

On October 11, 2002, INS proposed a regulation that would require nonimmigrants, as well as immigrants, coming to the U.S. to act as health care workers, including those seeking a change of status, to submit a certification. Previously, the certification requirement was limited to those health care workers applying for permanent residence in the U.S. The proposed rule establishes a procedure for obtaining certification and designates organizations that can issue certification for particular occupations. Those medical occupations currently covered include nurses, physical therapists, occupational therapists, speech-language pathologists, medical technologists, medical technicians and physician assistants.

Generally, before an employer can offer a position to a foreign national on a permanent basis, the local labor market must be tested to see if there are any Americans willing, qualified, available and able to take the position. If not, the position can be certified by the U.S. Department of Labor. This process is called "alien labor certification". Because of the documented shortage of nurses and physical therapists in the U.S., the Department of Labor in regulations has waived the labor certification requirement for these two occupations, so there is a shortened process. For physicians, this process can be bypassed if the physician will be employed in an underserved area and petitions for a National Interest Waiver on that basis.

For nurses, the following must be shown when filing the immigrant visa petition with the INS on Form I-140, the first step of the process:

1. The prospective employee will be working as a professional nurse.
2. Documentation that the applicant has passed the Examination of the Commission on Graduate of Foreign Nursing Schools (CGFNS) or that the applicant holds a full and unrestricted license to practice professional nursing in the state of intended employment.
3. Nursing diploma or degree
4. Nursing registration from country where the nurse received nursing education if educated outside the U.S.

For physical therapists, the following must be shown:

1. The prospective employee will be working as a physical therapist.
2. The applicant has all of the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy. The application must include a letter from the authorized state physical therapy licensing official stating that the alien is qualified to take the state’s written licensing examination for physical therapists.

Once the immigrant petition is approved, if the applicant is in the U.S., he/she can apply to adjust status from nonimmigrant to lawful resident. If the applicant is not in the U.S., which is the case for most nurses, the applicant will be processed for an immigrant visa at a U.S. consulate or embassy overseas. As indicated above, medical professionals in seven occupations are required to have certification before they can be approved for permanent residence or green card status. These occupations include nurses and physical therapists but exclude physicians.

Before the immigrant visa is granted by the consulate or adjustment of status approved by the INS, the VisaScreen certificate or certified statement must be obtained for nurses from the International Commission on Healthcare Professionals (ICHP), which is part of CGFNS. Physical therapists must obtain the Visa Screen from the Foreign Credentialing Commission on Physical Therapy (FCCPT). Visa Screen reviews educational credentials, licensure documentation and English language skills assessment and predictive examination.

The examination that must be passed for nurses is the CGFNS Qualifying Examination or the National Council Licensure Examination (NCLEX-RN). There is an exception to the VisaScreen requirement for nurses who complete their nursing education in English. CGFNS may issue a certified statement for nurses who completed their education in Australia, Canada (except Quebec), Ireland, New Zealand, the U.K. and the U.S. The certified statement by CGFNS can only be issued if the nurse is licensed in the state of intended employment and has passed the NCLEX.

Most lawful resident cases for nurses are processed using consular processing. Upon approval of the immigrant visa petition, the INS notifies the National Visa Center (NVC). The NVC sends the immigrant visa application forms to the foreign national or his/her attorney. The forms are submitted to the NVC or the consulate and the foreign national is then scheduled for a visa interview. At the interview, the nurse must present the final application forms, police certificates, medical examination results, birth certificate and marriage certificate, if married, passport, photographs, job letter, filing fees, and VisaScreen certificate.

To ensure that all possible nonimmigrant and immigrant options are considered and the best strategy developed, human resource professionals in this field should consider consulting with immigration counsel.

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