[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 455 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                 S. 455

   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 SENATE OF THE UNITED STATES

                           February 24, 1999

 Mr. Durbin (for himself and Mrs. Hutchison) introduced the following 
    bill; which was read twice and 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 ``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 
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.
                                 <all>