[Congressional Record Volume 145, Number 29 (Wednesday, February 24, 1999)]
[Senate]
[Pages S1928-S1931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself and Mrs. Hutchison):
  S. 455. 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; to the 
Committee on the Judiciary.


           nursing relief for disadvantaged areas act of 1999

  Mr. DURBIN. Mr. President, I rise today with by colleague, Senator 
Kay Bailey Hutchison to introduce the Nursing Relief for Disadvantaged 
Areas Act of 1999. Today, some of our nation's poorest rural and inner-
city communities face a crisis--they may soon have inadequate or no 
hospital healthcare because nurses are unwilling to work in these 
neighborhoods. The Nursing Relief for Disadvantaged Areas Act of 1999 
will ensure that hospitals located in these desperately underserved 
areas can continue to provide adequate healthcare to our most needy 
communities.
  Hospitals located in underprivileged areas often experience severe 
difficulty in attracting nurses. These hospitals operate in the middle 
of some of the harshest poverty and crime in our country. The employees 
of these hospitals often treat the worst and most troubling cases.

[[Page S1929]]

  The condition of the surrounding area imperils the ability of these 
hospitals to recruit and maintain an adequate nursing staff. These 
circumstances have pushed some hospitals into a financial crisis, 
threatening the quality of healthcare to those most in need.
  For the past eight years, this problem has been addressed by the 
H(1)(a) visa program which has allowed these hospitals to hire 
nonimmigrant nurses. Unfortunately, the H(1)(a) visa program sunset in 
1997, and so once again such hospitals are in crisis. By replacing the 
H(1)(a) visa, the Nursing Relief Act will alleviate this crisis.
  The true beneficiary of this program will not be the hospitals, but 
the underprivileged communities which rely on the hospitals' services. 
Let me tell you a story about the role that this program can play in 
the health of a community. The story is about the St. Bernard Hospital 
on the South Side of Chicago.
  St. Bernard Hospital is the only remaining hospital in the Englewood 
community, which serves over 100,000 people. It is located in one of 
the poorest and most crime ridden neighborhoods in the country. Over 
the years, St. Bernard has become indispensable to its community. Even 
though it has not been designated as a trauma center, St. Bernard 
receives the second highest number of ambulance runs from the Chicago 
Fire Department. St. Bernard also provides free vision exams and free 
screening for blood pressure, cholesterol, diabetes, and sickle cell 
anemia. In addition, schoolchildren receive free physicals and 
inoculations.
  St. Bernard Hospital also offers a great number of outreach and 
community services. A food pantry is stocked, and clothes are made 
available for patients in need. St. Bernard is sponsoring a project for 
affordable housing in the community. The hospital has opened four 
family clinics in Englewood to provide safe and easy access to 
healthcare for community residents. Physicians from St. Bernard visit 
senior housing facilities on a regular basis, and the hospital has been 
recognized by Catholic Charities for its work with senior housing and 
healthcare.
  In addition, St. Bernard is by far the largest employer in the 
Englewood area. When the hospital faces a crisis, many jobs in the 
community are placed at risk.
  Even though the health of Englewood relies on this hospital, St. 
Bernard almost had to close its doors in 1992. After aggressive 
recruitment efforts, the hospital was unable to attract enough 
healthcare professionals to maintain its services. The hospital was 
especially in need of registered nurses.
  The problem had been solved in part by hiring foreign nurses through 
the H(1)(a) visa program. The hospital had gone through great lengths 
to hire domestic nurses, and was using the H(1)(a) program only as a 
last alternative to closing its doors.
  In the first half of 1997, for example, the hospital placed want ads 
in the Chicago Tribune and received approximately 200 responses. 
However, almost 75 percent of the responses declined to interview when 
they learned where the hospital was located. St. Bernard has also tried 
to hire nurses through nurse registries. However, the rates of the 
registries would cost the hospital more than $2 million a year, an 
unsustainable expense for an already financially burdened hospital.
  Clearly, the H(1)(a) visa program had been offering St. Bernard a way 
to maintain its service to the community when no other option was 
available. In 1997, even that option was eliminated.
  The Nursing Relief for Disadvantaged Areas Act will ensure that 
hospitals like St. Bernard can keep their doors open to the public and 
continue to support their community. In addition, however, the bill has 
been designed to protect the jobs of domestic nurses and to ensure that 
hospitals use the visa program faithfully and only as a last resort 
solution.
  This bill is more narrowly targeted than the old H(1)(a) visa 
program. The measure ensures that nurses can only be brought into the 
United States by hospitals that have no alternative. In short, we have 
made every effort to ensure that no American nurse will lose his or her 
job as a result of this bill. While we want to assure that these 
hospitals have an adequate nursing staff, we must also guarantee that 
foreign nurses are not taking away jobs from domestic nurses.
  Let me tell you what this bill does:
  It establishes a nonimmigrant classification for nurses in health 
professional shortage areas. The program provides non-immigrant visas 
for 500 nurses each year to work in hospitals where there are severe 
nursing shortages.
  The Nursing Relief Act protects the jobs of domestic nurses in three 
separate ways:
  First, the measure requires that a hospital must certify that it has 
gone through great lengths to hire and retain domestic nurses before it 
can use this visa program to hire nonimmigrant nurses.
  Second, the measure requires that nonimmigrant nurses must be paid 
the same wages and work under the same conditions as domestic nurses. 
In addition, nonimmigrant nurses cannot be hired in order to disrupt 
the activities of labor unions. These provisions ensure that hospitals 
cannot undercut the working conditions of domestic nurses.
  And third, the measure limits the number of nonimmigrant nurses who 
may enter the United States in any given year. The Act provides spaces 
for only 500 nonimmigrants each year, and it caps the number of nurses 
who may enter each state.
  In addition, the Nursing Relief Act provides for serious penalties 
for abuse, thus ensuring that hospitals will not misuse this new visa 
category. Moreover, the bill guarantees that hospitals use this program 
faithfully by narrowly defining the hospitals which are eligible. In 
order to hire nonimmigrant nurses through this visa program, hospitals 
must fulfill four strict requirements.
  First, the hospital must be located in an area which has been defined 
by the Department of Health and Human Services as having a shortage of 
health care professionals.
  Second, the hospital must have at least 190 acute care beds.
  Third, the hospital must have at least 35 percent of its in-patient 
days reimbursed by Medicare.
  Fourth, the hospital must have at least 28 percent of its in-patient 
days reimbursed by Medicaid.
  All of these measures ensure that the Nursing Relief Act will serve 
as a relief to our communities rather than a loophole in the 
immigration laws.
  Thank you, Mr. President, for the opportunity to introduce this 
important and very timely initiative. I hope that my colleagues will 
join me and support the Nursing Relief for Disadvantaged Areas Act of 
1999 so that every hospital can maintain an adequate nursing staff 
regardless of its location.
  Mr. President, I ask unanimous consent that a copy of the legislation 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 455

       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

[[Page S1930]]

     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

[[Page S1931]]

     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.
                                 ______