[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 441 Enrolled Bill (ENR)]
H.R.441
One Hundred Sixth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday,
the sixth day of January, one thousand nine hundred and ninety-nine
An Act
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 ``Nursing Relief for Disadvantaged
Areas Act of 1999''.
SEC. 2. REQUIREMENTS FOR ADMISSION OF NONIMMIGRANT NURSES IN HEALTH
PROFESSIONAL SHORTAGE AREAS DURING 4-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 striking ``; or'' at the end and
inserting 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 (as defined in section 212(m)(6)) for which
the alien will perform the services; or''.
(b) Requirements.--Section 212(m) of the Immigration and
Nationality Act (8 U.S.C. 1182(m)) 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) or 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.
``(2)(A) The attestation referred to in section
101(a)(15)(H)(i)(c), with respect to a facility for which an alien will
perform services, is an attestation as to the following:
``(i) The facility meets all the requirements of paragraph (6).
``(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 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, the facility did not lay off and will not lay off a
registered nurse employed by the facility within the period
beginning 90 days before and ending 90 days after the date of
filing of any visa petition, 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 the registered nurses employed at the facility through posting
in conspicuous locations.
``(vii) The facility will not, at any time, employ a number of
aliens issued visas or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(i)(c) that exceeds 33 percent of the total
number of registered nurses employed by the facility.
``(viii) The facility will not, with respect to any alien
issued a visa or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(i)(c)--
``(I) authorize the alien to perform nursing services at
any worksite other than a worksite controlled by the facility;
or
``(II) transfer the place of employment of the alien from
one worksite to another.
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 the Nursing Relief for Disadvantaged Areas
Act of 1999. 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 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 one step if the facility can
demonstrate that taking a second step is not reasonable.
``(C) Subject to subparagraph (E), an attestation under
subparagraph (A)--
``(i) shall expire on the date that is the later of--
``(I) the end of the one-year period beginning on the date
of its filing with the Secretary of Labor; or
``(II) the end of the period of admission under section
101(a)(15)(H)(i)(c) of the last alien with respect to whose
admission it was applied (in accordance with clause (ii)); and
``(ii) shall apply to petitions filed during the one-year
period beginning on the date of its filing with the Secretary of
Labor 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 one 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. Subject to the
time limits established under this clause, this subparagraph shall
apply regardless of whether an attestation is expired or unexpired at
the time a complaint is filed.
``(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 one 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.
``(F)(i) The Secretary of Labor shall impose on a facility filing
an attestation under subparagraph (A) a filing fee, in an amount
prescribed by the Secretary based on the costs of carrying out the
Secretary's duties under this subsection, but not exceeding $250.
``(ii) Fees collected under this subparagraph shall be deposited in
a fund established for this purpose in the Treasury of the United
States.
``(iii) The collected fees in the fund shall be available to the
Secretary of Labor, to the extent and in such amounts as may be
provided in appropriations Acts, to cover the costs described in clause
(i), in addition to any other funds that are available to the Secretary
to cover such costs.
``(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
``(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 101(a)(15)(H)(i)(c) in each fiscal year
shall not exceed 500. The number of such visas issued for employment in
each State in each fiscal year shall not exceed the following:
``(A) For States with populations of less than 9,000,000, based
upon the 1990 decennial census of population, 25 visas.
``(B) For States with populations of 9,000,000 or more, based
upon the 1990 decennial census of population, 50 visas.
``(C) If the total number of visas available under this
paragraph for a fiscal year quarter exceeds the number of qualified
nonimmigrants who may be issued such visas during those quarters,
the visas made available under this paragraph shall be issued
without regard to the numerical limitation under subparagraph (A)
or (B) of this paragraph during the last fiscal year quarter.
``(5) A facility that has filed a petition under section
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing
services for the facility--
``(A) shall provide the nonimmigrant a wage rate and working
conditions commensurate with those of nurses similarly employed by
the facility;
``(B) shall require the nonimmigrant to work hours commensurate
with those of nurses similarly employed by the facility; and
``(C) shall not interfere with the right of the nonimmigrant to
join or organize a union.
``(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), the term `facility' means a subsection (d)
hospital (as defined in section 1886(d)(1)(B) of the Social Security
Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the following requirements:
``(A) As of March 31, 1997, the hospital was located in a
health professional shortage area (as defined in section 332 of the
Public Health Service Act (42 U.S.C. 254e)).
``(B) Based on its settled cost report filed under title XVIII
of the Social Security Act for its cost reporting period beginning
during fiscal year 1994--
``(i) the hospital has not less than 190 licensed acute
care beds;
``(ii) the number of the hospital's inpatient days for such
period which were made up of patients who (for such days) were
entitled to benefits under part A of such title is not less
than 35 percent of the total number of such hospital's acute
care inpatient days for such period; and
``(iii) the number of the hospital's inpatient days for
such period which were made up of patients who (for such days)
were eligible for medical assistance under a State plan
approved under title XIX of the Social Security Act, is not
less than 28 percent of the total number of such hospital's
acute care inpatient days for such period.
``(7) For purposes of paragraph (2)(A)(v), the term `lay off',
with respect to a worker--
``(A) means to cause the worker's loss of employment, other
than through a discharge for inadequate performance, violation
of workplace rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or contract; but
``(B) does not include any situation in which the worker is
offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer at
equivalent or higher compensation and benefits than the
position from which the employee was discharged, regardless of
whether or not the employee accepts the offer.
Nothing in this paragraph is intended to limit an employee's or an
employer's rights under a collective bargaining agreement or other
employment contract.''.
(c) Repealer.--Clause (i) of section 101(a)(15)(H) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)) is amended
by striking subclause (a).
(d) Implementation.--Not later than 90 days after the date of the
enactment of this Act, the Secretary of Labor (in consultation, to the
extent required, with the Secretary of Health and Human Services) and
the Attorney General shall promulgate final or interim final
regulations to carry out section 212(m) of the Immigration and
Nationality Act (as amended by subsection (b)).
(e) Limiting Application of Nonimmigrant Changes to 4-Year
Period.--The amendments made by this section shall apply to
classification petitions filed for nonimmigrant status only during the
4-year period beginning on the date that interim or final regulations
are first promulgated under subsection (d).
SEC. 3. RECOMMENDATIONS FOR ALTERNATIVE REMEDY FOR NURSING SHORTAGE.
Not later than the last day of the 4-year period described in
section 2(e), the Secretary of Health and Human Services and the
Secretary of Labor shall jointly submit to the Congress recommendations
(including legislative specifications) with respect to the following:
(1) A program to eliminate the dependence of facilities
described in section 212(m)(6) of the Immigration and Nationality
Act (as amended by section 2(b)) on nonimmigrant registered nurses
by providing for a permanent solution to the shortage of registered
nurses who are United States citizens or aliens lawfully admitted
for permanent residence.
(2) A method of enforcing the requirements imposed on
facilities under sections 101(a)(15)(H)(i)(c) and 212(m) of the
Immigration and Nationality Act (as amended by section 2) that
would be more effective than the process described in section
212(m)(2)(E) of such Act (as so amended).
SEC. 4. CERTIFICATION FOR CERTAIN ALIEN NURSES.
(a) In General.--
(1) Section 212 of the Immigration and Nationality Act (8
U.S.C. 1182) is amended by adding at the end the following new
subsection:
``(r) Subsection (a)(5)(C) shall not apply to an alien who seeks to
enter the United States for the purpose of performing labor as a nurse
who presents to the consular officer (or in the case of an adjustment
of status, the Attorney General) a certified statement from the
Commission on Graduates of Foreign Nursing Schools (or an equivalent
independent credentialing organization approved for the certification
of nurses under subsection (a)(5)(C) by the Attorney General in
consultation with the Secretary of Health and Human Services) that--
``(1) the alien has a valid and unrestricted license as a nurse
in a State where the alien intends to be employed and such State
verifies that the foreign licenses of alien nurses are authentic
and unencumbered;
``(2) the alien has passed the National Council Licensure
Examination (NCLEX);
``(3) the alien is a graduate of a nursing program--
``(A) in which the language of instruction was English;
``(B) located in a country--
``(i) designated by such commission not later than 30
days after the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999, based on such
commission's assessment that the quality of nursing
education in that country, and the English language
proficiency of those who complete such programs in that
country, justify the country's designation; or
``(ii) designated on the basis of such an assessment by
unanimous agreement of such commission and any equivalent
credentialing organizations which have been approved under
subsection (a)(5)(C) for the certification of nurses under
this subsection; and
``(C)(i) which was in operation on or before the date of
the enactment of the Nursing Relief for Disadvantaged Areas Act
of 1999; or
``(ii) has been approved by unanimous agreement of such
commission and any equivalent credentialing organizations which
have been approved under subsection (a)(5)(C) for the
certification of nurses under this subsection.''.
(2) Section 212(a)(5)(C) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(5)(C)) is amended by striking ``Any alien who
seeks'' and inserting ``Subject to subsection (r), any alien who
seeks''.
(b) Effective Date.--The amendments made by subsection (a) shall
take effect on the date of the enactment of this Act, without regard to
whether or not final regulations to carry out such amendments have been
promulgated by such date.
(c) Issuance of Certified Statements.--The Commission on Graduates
of Foreign Nursing Schools, or any approved equivalent independent
credentialing organization, shall issue certified statements pursuant
to the amendment under subsection (a) not more than 35 days after the
receipt of a complete application for such a statement.
SEC. 5. NATIONAL INTEREST WAIVERS OF JOB OFFER REQUIREMENTS FOR ALIENS
WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED
DEGREES OR ALIENS OF EXCEPTIONAL ABILITY.
Section 203(b)(2)(B) of the Immigration and Nationality Act (8
U.S.C. 1153(b)(2)(B)) is amended to read as follows:
``(B) Waiver of job offer.--
``(i) National interest waiver.--Subject to clause
(ii), the Attorney General may, when the Attorney General
deems it to be in the national interest, waive the
requirements of subparagraph (A) that an alien's services
in the sciences, arts, professions, or business be sought
by an employer in the United States.
``(ii) Physicians working in shortage areas or veterans
facilities.--
``(I) In general.--The Attorney General shall grant
a national interest waiver pursuant to clause (i) on
behalf of any alien physician with respect to whom a
petition for preference classification has been filed
under subparagraph (A) if--
``(aa) the alien physician agrees to work full
time as a physician in an area or areas designated
by the Secretary of Health and Human Services as
having a shortage of health care professionals or
at a health care facility under the jurisdiction of
the Secretary of Veterans Affairs; and
``(bb) a Federal agency or a department of
public health in any State has previously
determined that the alien physician's work in such
an area or at such facility was in the public
interest.
``(II) Prohibition.--No permanent resident visa may
be issued to an alien physician described in subclause
(I) by the Secretary of State under section 204(b), and
the Attorney General may not adjust the status of such
an alien physician from that of a nonimmigrant alien to
that of a permanent resident alien under section 245,
until such time as the alien has worked full time as a
physician for an aggregate of five years (not including
the time served in the status of an alien described in
section 101(a)(15)(J)), in an area or areas designated
by the Secretary of Health and Human Services as having
a shortage of health care professionals or at a health
care facility under the jurisdiction of the Secretary
of Veterans Affairs.
``(III) Statutory construction.--Nothing in this
subparagraph may be construed to prevent the filing of
a petition with the Attorney General for classification
under section 204(a), or the filing of an application
for adjustment of status under section 245, by an alien
physician described in subclause (I) prior to the date
by which such alien physician has completed the service
described in subclause (II).
``(IV) Effective date.--The requirements of this
subsection do not affect waivers on behalf of alien
physicians approved under section 203(b)(2)(B) before
the enactment date of this subsection. In the case of a
physician for whom an application for a waiver was
filed under section 203(b)(2)(B) prior to November 1,
1998, the Attorney General shall grant a national
interest waiver pursuant to section 203(b)(2)(B) except
that the alien is required to have worked full time as
a physician for an aggregate of three years (not
including time served in the status of an alien
described in section 101(a)(15)(J)) before a visa can
be issued to the alien under section 204(b) or the
status of the alien is adjusted to permanent resident
under section 245.''.
SEC. 6. FURTHER CLARIFICATION OF TREATMENT OF CERTAIN INTERNATIONAL
ACCOUNTING FIRMS.
Section 206(a) of the Immigration Act of 1990 (8 U.S.C. 1101 note)
is amended to read as follows:
``(a) Clarification of Treatment of Certain International
Accounting and Management Consulting Firms.--In applying sections
101(a)(15)(L) and 203(b)(1)(C) of the Immigration and Nationality Act,
and for no other purpose, in the case of a partnership that is
organized in the United States to provide accounting or management
consulting services and that markets its accounting or management
consulting services under an internationally recognized name under an
agreement with a worldwide coordinating organization that is
collectively owned and controlled by the member accounting and
management consulting firms or by the elected members (partners,
shareholders, members, employees) thereof, an entity that is organized
outside the United States to provide accounting or management
consulting services shall be considered to be an affiliate of the
United States accounting or management consulting partnership if it
markets its accounting or management consulting services under the same
internationally recognized name directly or indirectly under an
agreement with the same worldwide coordinating organization of which
the United States partnership is also a member. Those partnerships
organized within the United States and entities organized outside the
United States which are considered affiliates under this subsection
shall continue to be considered affiliates to the extent such firms
enter into a plan of association with a successor worldwide
coordinating organization, which need not be collectively owned and
controlled.''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.