[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2759 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 2759

   To amend the Immigration and Nationality Act with respect to the 
requirements for the admission of nonimmigrant nurses who will practice 
                 in health professional shortage areas.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 29, 1997

   Mr. Rush introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Immigration and Nationality Act with respect to the 
requirements for the admission of nonimmigrant nurses who will practice 
                 in health professional shortage areas.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Health Professional Shortage Area 
Nursing Relief Act of 1997''.

SEC. 2. REQUIREMENTS FOR ADMISSION OF NONIMMIGRANT NURSES IN HEALTH 
              PROFESSIONAL SHORTAGE AREAS DURING 5-YEAR PERIOD.

    (a) Establishment of a New Nonimmigrant Classification for 
Nonimmigrant Nurses in Health Professional Shortage Areas.--Section 
101(a)(15)(H)(i) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)(H)(i)) is amended by adding at the end the following: ``, 
or (c) who is coming temporarily to the United States to perform 
services as a registered nurse, who meets the qualifications described 
in section 212(m)(1) and with respect to whom the Secretary of Labor 
determines and certifies to the Attorney General that an unexpired 
attestation is on file and in effect under section 212(m)(2) for the 
facility described in section 212(m)(1)(5) for which the alien will 
perform the services, or''.
    (b) Requirements.--Subsection (m) of section 212 of the Immigration 
and Nationality Act (8 U.S.C. 1182) is amended to read as follows:
    ``(m)(1) The qualifications referred to in section 
101(a)(15)(H)(i)(c), with respect to an alien who is coming to the 
United States to perform nursing services for a facility, are that the 
alien--
            ``(A) has obtained a full and unrestricted license to 
        practice professional nursing in the country where the alien 
        obtained nursing education or has received nursing education in 
        the United States;
            ``(B) has passed an appropriate examination (recognized in 
        regulations promulgated in consultation with the Secretary of 
        Health and Human Services), has obtained a certificate from the 
        Commission on Graduates of Foreign Nursing Schools (in this 
        subsection referred to as `CGFNS') certifying that the alien 
        has fulfilled the necessary requirements for the CGFNS 
        Qualifying Examination and has passed both the Nursing and 
        English Language Proficiency sections of the CGFNS Qualifying 
        Examination, or has graduated from a nursing school in the 
        United States and has a full and unrestricted license under 
        State law to practice professional nursing in the State of 
        intended employment; and
            ``(C) is 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 engage in the practice of 
        professional nursing as a registered nurse immediately upon 
        admission to the United States and is authorized under such 
        laws to be employed by the facility.
The qualification described under subparagraph (B) concerning the CGFNS 
Qualifying Examination shall only apply prior to the date of 
promulgation of regulations under section 212(a)(5)(C).
    ``(2)(A) The attestation referred to in section 
101(a)(15)(H)(i)(c), is an attestation as to the following:
            ``(i) The facility meets all the requirements of paragraph 
        (4).
            ``(ii) The employment of the alien will not adversely 
        affect the wages and working conditions of registered nurses 
        similarly employed.
            ``(iii) The alien employed by the facility will be paid the 
        wage rate for registered nurses similarly employed by the 
        facility.
            ``(iv) The facility has taken and is taking timely and 
        significant steps designed to recruit and retain sufficient 
        registered nurses who are United States citizens or immigrants 
        who are authorized to perform nursing services, in order to 
        remove as quickly and as reasonably possible the dependence of 
        the facility on nonimmigrant registered nurses.
            ``(v) There is not a strike or lockout in the course of a 
        labor dispute, nor has the facility laid off registered nurses 
within the previous year other than terminations for cause, and the 
employment of such an alien is not intended or designed to influence an 
election for a bargaining representative for registered nurses of the 
facility.
            ``(vi) At the time of the filing of the petition for 
        registered nurses under section 101(a)(15)(H)(i)(c), notice of 
        the filing has been provided by the facility to the bargaining 
        representative of the registered nurses at the facility or, 
        where there is no such bargaining representative, notice of the 
        filing has been provided to registered nurses employed at the 
        facility through posting in conspicuous locations.
Nothing in clause (iv) shall be construed as requiring a facility to 
have taken significant steps described in such clause before the date 
of the enactment of this subsection. A copy of the attestation shall be 
provided, within 30 days of the date of filing, to registered nurses 
employed at the facility on the date of filing.
    ``(B) For purposes of subparagraph (A)(iv), each of the following 
shall be considered a significant step reasonably designed to recruit 
and retain registered nurses:
            ``(i) Operating a training program for registered nurses at 
        the facility or financing (or providing participation in) a 
        training program for registered nurses elsewhere.
            ``(ii) Providing career development programs and other 
        methods of facilitating health care workers to become 
        registered nurses.
            ``(iii) Paying registered nurses wages at a rate higher 
        than currently being paid to registered nurses similarly 
        employed in the geographic area.
            ``(iv) Providing adequate support services to free 
        registered nurses from administrative and other non-nursing 
        duties.
            ``(v) Providing reasonable opportunities for meaningful 
        salary advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be 
an exclusive list of the significant steps that may be taken to meet 
the conditions of subparagraph (A)(iv). Nothing in this subparagraph 
shall require a facility to take more than 1 step if the facility can 
demonstrate that taking a second step is not reasonable.
    ``(C) Subject to subparagraph (E), an attestation under 
subparagraph (A) shall--
            ``(i) expire at the end of the 1-year period beginning on 
        the date of its filing with the Secretary of Labor; and
            ``(ii) apply to petitions filed during such 1-year period 
        if the facility states in each such petition that it continues 
        to comply with the conditions in the attestation.
    ``(D) A facility may meet the requirements under this paragraph 
with respect to more than 1 registered nurse in a single petition.
    ``(E)(i) The Secretary of Labor shall compile and make available 
for public examination in a timely manner in Washington, D.C., a list 
identifying facilities which have filed petitions for nonimmigrants 
under section 101(a)(15)(H)(i)(C) and, for each such facility, a copy 
of the facility's attestation under subparagraph (A) (and accompanying 
documentation) and each such petition filed by the facility.
    ``(ii) The Secretary of Labor shall establish a process, including 
reasonable time limits, for the receipt, investigation, and disposition 
of complaints respecting a facility's failure to meet conditions 
attested to or a facility's misrepresentation of a material fact in an 
attestation. Complaints may be filed by any aggrieved person or 
organization (including bargaining representatives, associations deemed 
appropriate by the Secretary, and other aggrieved parties as determined 
under regulations of the Secretary). The Secretary shall conduct an 
investigation under this clause if there is reasonable cause to believe 
that a facility fails to meet conditions attested to.
    ``(iii) Under such process, the Secretary shall provide, within 180 
days after the date such a complaint is filed, for a determination as 
to whether or not a basis exists to make a finding described in clause 
(iv). If the Secretary determines that such a basis exists, the 
Secretary shall provide for notice of such determination to the 
interested parties and an opportunity for a hearing on the complaint 
within 60 days of the date of the determination.
    ``(iv) If the Secretary of Labor finds, after notice and 
opportunity for a hearing, that a facility (for which an attestation is 
made) has failed to meet a condition attested to or that there was a 
misrepresentation of material fact in the attestation, the Secretary 
shall notify the Attorney General of such finding and may, in addition, 
impose such other administrative remedies (including civil monetary 
penalties in an amount not to exceed $1,000 per nurse per violation, 
with the total penalty not to exceed $10,000 per violation) as the 
Secretary determines to be appropriate. Upon receipt of such notice, 
the Attorney General shall not approve petitions filed with respect to 
a facility during a period of at least 1 year for nurses to be employed 
by the facility.
    ``(v) In addition to the sanctions provided for under clause (iv), 
if the Secretary of Labor finds, after notice and an opportunity for a 
hearing, that a facility has violated the condition attested to under 
subparagraph (A)(iii) (relating to payment of registered nurses at the 
prevailing wage rate), the Secretary shall order the facility to 
provide for payment of such amounts of back pay as may be required to 
comply with such condition.
    ``(3) The period of admission of an alien under section 
101(a)(15)(H)(i)(c) shall be for an initial period of not to exceed 3 
years, subject to an extension for a period or periods, not to exceed a 
total period of admission of 5 years.
    ``(4) For purposes of this subsection and section 
101(a)(15)(H)(i)(c), the term `facility' means an employer who--
            ``(A) is located in a health professional shortage area (as 
        such term is defined in section 332 of the Public Health 
        Service Act (42 U.S.C. 254e) as of March 31, 1997;
            ``(B) is a subsection (d) hospital as described in section 
        1886(d) of the Social Security Act (42 U.S.C. 1395ww(d)) with 
        at least 190 licensed acute care beds as reported by the Health 
        Care Financing Administration in its PPS XI data report;
            ``(C) has at least 35 percent of its hospital acute care 
        inpatient days reimbursed under the medicare program under 
        title XVIII of the Social Security Act (42 U.S.C. 1395 et. 
        seq.) as reported by the Health Care Financing Administration 
        in its PPS XI data report; and
            ``(D) has at least 28 percent of its hospital acute care 
        inpatient days reimbursed under the medicaid program under 
        title XIX of the Social Security Act (42 U.S.C. 1396 et. seq.) 
        as reported by the Health Care Financing Administration in its 
        PPS XI data report.''.
    (c) Implementation.-- Not later than 90 days after the date of 
enactment of this Act, the Secretary of Labor (in consultation, to the 
extent required, with the Secretary of Health and Human Services) and 
the Immigration and the Naturalization Service shall publish final or 
interim final regulations to carry out section 212(m)(1) of the 
Immigration and Nationality Act (as added by subsection (b)), except 
that in the event any such regulations are not published within 90 days 
after the date of enactment of this Act, the regulations published to 
carry out and implement the Immigration Nursing Relief Act of 1989, in 
effect on September 30, 1995 (specifically including part 504 of title 
29, Code of Federal Regulations and parts 621 and 655 of title 20, Code 
of Federal Regulations) shall continue to apply.
    (d) Limiting Application of Nonimmigrant Changes to 5-Year 
Period.--The amendments made by this section shall apply to 
classification petitions filed for nonimmigrant status only during the 
5-year period beginning on the date of enactment of this Act.
    (e) Annual Limitation on Petitions Granted.--The total number of 
nonimmigrant visas issued pursuant to petitions granted under section 
101(a)(15)(H)(i)(c) of the Immigration and Nationality Act in each 
fiscal year shall not exceed 500, not including extensions of 
nonimmigrant status under that section. The number of petitions granted 
under such section 101(a)(15)(H)(i)(c) for each State in each fiscal 
year shall not exceed the following:
            (1) For States with populations of less than 10,000,000 
        based upon the 1992 Census, 25 petitions, not including 
        extensions of nonimmigrant status under that section.
            (2) For States with populations of 10,000,000 or more based 
        upon the 1992 census, 50 petitions, not including extensions of 
        nonimmigrant status under that section.
            (f) Full Prior Disclosure to Nonimmigrant Nurses.--Prior to 
        contracting with a nonimmigrant under section 
        101(a)(15)(H)(i)(c) of the Immigration and Nationality Act, an 
        employer sponsoring such a nonimmigrant must provide the 
        potential nonimmigrant nurse with detailed information on the 
        neighborhood, hospital, and working conditions under which the 
        nonimmigrant will be working.
    (g) Working Conditions.--An employer sponsoring a nonimmigrant 
under section 101(a)(15)(H)(i)(c) of the Immigration and Nationality 
Act shall--
            (1) provide a wage rate and working conditions commensurate 
        with those of nurses similarly employed by the hospital; and
            (2) require the nonimmigrant to work hours commensurate 
        with those of nurses similarly employed by the hospital; and
            (3) not interfere with the right of the nonimmigrant to 
        join or organize a union.
    (h) Technical Amendment.--Section 212(a)(5)(C) of the Immigration 
and Nationality Act (8 U.S.C. 1182(a)(5)(C)) is amended in the matter 
preceding clause (i) by striking ``physician,'' and inserting 
``physician, and, until such time as final regulations are published 
concerning this section, other than nonimmigrant health care workers 
pursuant to section 101(a)(15)(H)(i)(C),''.
                                 <all>