[House Report 105-668]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-668
_______________________________________________________________________
HEALTH PROFESSIONAL SHORTAGE AREA NURSING RELIEF ACT OF 1998
_______________________________________________________________________
August 3, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2759]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(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,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 5
Background and Need for Legislation.............................. 5
Hearings......................................................... 9
Committee Consideration.......................................... 9
Vote of the Committee............................................ 9
Committee Oversight Findings..................................... 10
Committee on Government Reform and Oversight Findings............ 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Estimate............................. 10
Constitutional Authority Statement............................... 11
Section-by-Section Analysis...................................... 12
Agency Views..................................................... 15
Changes in Existing Law Made by the Bill, as Reported............ 16
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Health Professional Shortage Area
Nursing Relief Act of 1998''.
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 has not 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.
``(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 Health Professional Shortage Area Nursing
Relief Act of 1998. 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 one step if the facility can
demonstrate, and the Attorney General determines, 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 petitions granted under section
101(a)(15)(H)(i)(c) for each State in each fiscal year shall not exceed
the following:
``(A) For States with populations of less than 10,000,000,
based upon the 1990 decennial census of population, 25
petitions.
``(B) For States with populations of 10,000,000 or more,
based upon the the 1990 decennial census of population, 50
petitions.
``(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.''.
(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 regulation 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. EXEMPTION FOR CERTAIN NURSES AND PHYSICAL THERAPISTS FROM
CERTIFICATION REQUIREMENTS FOR FOREIGN HEALTH-CARE
WORKERS.
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 or an alien who has a
full and unrestricted license as a nurse or physical therapist in the
State of intended employment,''.
Purpose and Summary
H.R. 2759 would create a new ``H-1C'' temporary visa
program for registered nurses that would sunset after four
years. The new program would be modeled after the expired ``H-
1A'' program but would limit the number of visas that could be
issued to 500 a year and would only allow ``in-need'' hospitals
who meet certain criteria to petition for alien nurses.
Background and Need for the Legislation
I. The H-1A Registered Nurse Temporary Visa Program
The H-1A program was created by the Immigration Nursing
Relief Act of 1989 [INRA] 1 and expired on September
1, 1995. Legislation enacted in the 104th Congress allowed
nurses who had entered the United States under the program to
stay and work as registered nurses until September 30, 1997.
2 However, amendments to extend the H-1A program for
6 months were defeated both in the Judiciary Committee and on
the House floor during consideration of immigration reform
legislation in the 104th Congress. 3
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\1\ Pub. L. No. 101-238 (1989). See sections 101(a)(15)(H)(i)(a)
and 212(m) of the Immigration and Nationality Act (hereinafter cited as
``INA'').
\2\ Pub. L. 104-302 (1996).
\3\ See Congressional Quarterly Almanac: 1996 at H-30.
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The H-1A program had no numerical cap. In 1993, a
representative year, 6,506 aliens were admitted pursuant to the
H-1A program. Nurses could stay for an initial period of 3
years, subject to extension up to a total of 5 years (6 years
in case of extraordinary circumstances). 4
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\4\ INA sec. 212(m)(4).
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INRA was enacted in response to a number of contrasting
factors, including the existence of ``[a] nationwide nursing
shortage severe enough to disrupt the delivery of services to
patients in some U.S. health care institutions and potentially
place patients in jeopardy'' and ``[c]oncern among labor
organizations * * * that foreign workers [entering under the
then-existing temporary visa program] were having, or, given
their rate of entry, might come to have, a detrimental effect
on the pay and working conditions of the domestic work force *
* * .'' 5
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\5\ Immigration Nursing Relief Advisory Committee, Report to the
Secretary of Labor on the Immigration Nursing Relief Act of 1989 11
(1995)(``Report'').
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Under the H-1A program, an alien had to:
[have] 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 or Canada;
[have] passed an appropriate examination * * * or
[have] a full and unrestricted license under State law
to practice professional nursing in the State of
intended employment; and
is fully qualified and eligible under the laws * * *
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. 6
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\6\ INA section 212(m)(1)(A)-(C).
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Under the H-1A program, the intending employer had to
attest that:
[t]here would be a substantial disruption through no
fault of the [employer] in the delivery of health care
services * * * without the services of such an alien[,]
7
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\7\ In order to meet the terms of this attestation, the employer
generally could not have laid off registered nurses within the previous
year. INA sec. 212(m)(2)(A).
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[t]he employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed[,]
[t]he alien employed by the [employer] will be paid
the wage rate for registered nurses similarly employed
by the [employer,]
[e]ither * * * the [employer] 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 [employer]
on [H-1A] registered nurses, or * * * the [employer] is
subject to an approved State plan for the recruitment
and retention of nurses[,]
[t]here is not a strike or lockout in the course of a
labor dispute, and the employment of an [H-1A] alien is
not intended or designed to influence an election for a
bargaining representative for registered nurses of the
[employer, and]
* * * notice of the [petitioning for H-1A nurses] has
been provided * * * to the bargaining representative of
the registered nurses at the [employer], or where there
is no such bargaining representative, notice of the
filing has been provided to the registered nurses
employed at the [employer's] facility * * * .
8
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\8\ INA section 212(m)(2)(A).
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The Labor Department had the responsibility of
investigating complaints that an employer did not meet the
conditions attested to or misrepresented a material fact in the
attestation. 9 If an employer was found to have
committed a violation, the employer would be barred from
getting new H-1A petitions approved for at least one year,
could be fined up to $1,000 per violation, and could be
required to provide back pay if H-1A nurses were underpaid.
10
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\9\ INA section 212(m)(2)(E).
\10\ Id.
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II. The Immigration Nursing Relief Advisory Committee
INRA established the Immigration Nursing Relief Advisory
Committee to measure the impact of INRA on the nursing shortage
and to advise on whether the H-1A program should be extended.
The Committee found that:
H-1A nurses * * * do not constitute a significant
national presence.11 They fill multiple
roles in the United States, working in a variety of
positions: [1] Positions that are difficult to fill or
for which they have special qualifications: e.g.,
intensive care units, labor and delivery units,
operating rooms, psychiatric units, and long term care
facilities; [2] Regular, bedside staff positions in
hospitals and nursing homes; [3] Evening, night, and
weekend shifts; and [4] Positions where their language,
race, or ethnicity is considered of value in providing
services to multi-ethnic patients.12
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\11\ There were over 1.85 million registered nurses working in
nursing in the United States in 1992. Report at Appendix F, page 45.
\12\ Id. at 21.
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[T]he New York-City-Newark, Chicago, Houston, Los
Angeles, and Miami [areas] have accounted for two-
thirds of all petitions filed * * * .13
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\13\ Id. at 22.
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[O]ver 80 percent of approved petitions * * * were
for nurses from the Philippines.14
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\14\ Id. at 25.
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In the local labor markets studied * * * H-1A nurses
were [not] paid differently from U.S.
nurses.15
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\15\ Id. The national average salary for full-time staff nurses
working in hospitals was $35,200 in 1992. Id. at Appendix F, page 64.
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[T]here was no evidence of systematic differences in
work assignments given to H-1A * * *
nurses.16
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\16\ Id. at 26.
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[T]here were no indications of problems with H-1A
nurses * * * in delivering care * * *.17
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\17\ Id. at 27.
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Although the national [nursing] shortage of the late
1980s has abated, this change could not be attributed
to INRA. Market adjustments--increasing wages,
increasing numbers of nursing graduates, and changing
demand--were much more powerful and, ultimately,
effective in ending the national shortage.18
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\18\ Id. at 30.
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The future labor market for registered nurses is
highly uncertain. * * * The most recent projections of
employment for RNs by the Bureau of Labor Statistics
indicate an increase of 40 percent by 2005, far greater
than the growth projected for employment generally.
Decreases in the number of nursing graduates may be
ahead in this decade with the possibility of RN
shortages again in the 21st century.19
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\19\ Id. at 31-32 (footnotes omitted).
Three Committee members--representing the AFL-CIO, the
American Nurses Association, and the Service Employees
International Union--filed dissenting views. They found that
``[t]he overwhelming preponderance of evidence indicates that
the nursing shortage of the 1980s was a transitory phenomenon.
If anything, today there is a slight oversupply of nurses and
that oversupply is likely to increase in the future.''
20 They also found that ``since 1990, the health
care industry has been actively restructuring, a process that
has been dominated by hospital downsizing. Today, hospitals are
laying off nurses or restructuring their jobs to reduce or
eliminate their bedside responsibilities.'' 21
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\20\ Id. at Appendix A, page 1.
\21\ Id. at Appendix A, page 2.
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The Committee recommended that:
[The H-1A program should be extended with
modifications] to balance both the continuing need for
foreign nurses in certain specialties and localities
for which there are not adequate domestic RNs and the
need to continue to lessen employers' dependence on
foreign RNs and protect the wages and working
conditions of U.S. RNs. In addition * * * the
uncertainty about future demand for RNs and the
possibility of future shortages as evidenced by the
cyclical nature of past RN shortages, argues for a more
cautious approach to the elimination or reduction in
temporary foreign RN entry into the United
States.22
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\22\ Id. at 35.
The dissenters recommended that the H-1A program be allowed
to sunset. However, ``[i]f the H-1A Visa program is retained
then hospitals should be restricted to using H-1A nurses
limited to those specific shortage areas or to meet special
requirements, such as language ability.'' 23
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\23\ Id. at Appendix A, page 7.
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III. H.R. 2759
There does not appear to be a national nursing shortage
today; however, a number of hospitals with unique circumstances
are still experiencing great difficulty in attracting American
nurses.24 Hospitals serving mostly poor patients
have special difficulties. Some hospitals in rural areas might
also. For example:
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\24\ Neil Sampson, Acting Associate Administrator for Health
Professions, Health Resources and Services Administration, U.S.
Department of Health and Human Services, has stated that ``[t]he best
information currently available indicates that there is not a national
shortage of registered nurses. There are a few areas in which specialty
and locality shortages persist.'' Hearing Before the Immigration and
Claims Subcomm. of the House Judiciary Comm., 105th Cong., 1st Sess.
(Nov. 5, 1997).
St. Bernard Hospital and Health Care Center * * * is
located on the South side of Chicago in the Englewood
Community. It is the only remaining hospital in an area
with a census in excess of 100,000 and the patient base
is almost entirely poverty care or charity care. * * *
St. Bernard almost closed its doors in 1992,
primarily because of its inability to attract health
care professionals, most importantly registered
nurses.25
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\25\ Id. (statement on behalf of St. Bernard Hospital and Mercy
Regional Medical Center).
H.R. 2759 bill has been drafted very narrowly to help
precisely these kinds of hospitals. Thus, it is built around
the area of consensus between the majority and dissenting
members of Immigration Nursing Relief Advisory Committee.
H.R. 2759 would create a new temporary registered nurse
visa program designated ``H-1C'' that would provide up to 500
visas a year and that would sunset in four years. To be able to
petition for an alien, an employer would have to meet four
basic conditions. First, the employer would have to be located
in a health professional shortage area as designated by the
Department of Health and Human Services. Second, the employer
would have to have at least 190 acute care beds. Third, a
certain percentage (35%) of the employer's patients would have
to be Medicare patients. Fourth, a certain percentage (28%) of
patients would have to be Medicaid patients. The bill contains
the most important safeguards found in the H-1A program and has
added ones of its own.
The American Nursing Association has written that:
As proposed, [H.R. 2759] * * * is narrowly
constructed as only to apply to hospital facilities
which are most likely to have difficulty in recruiting
registered nurses, and contains critical protections
for both domestic and foreign registered nurses. Thus,
the ANA has decided not to oppose the proposed
legislation, however; we will adamantly oppose any
amendments which seek to broaden the application of
this visa or would lessen the protections afforded
registered nurses under this measure.26
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\26\ Letter from Geri Marullo, Executive Director, American Nurses
Association, to U.S. Representative Bobby Rush at 2 (October 31, 1997).
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Hearings
The Committee's Subcommittee on Immigration and Claims held
one day of hearings on H.R. 2759 on November 5, 1997. Testimony
was received from U.S. Representative Bobby Rush; Neil Sampson,
Acting Associate Administrator for Health Professions, Health
Resources and Services Administration, U.S. Department of
Health and Human Services; Ron Campbell, Vice President for
Patient Care Services, St. Bernard Hospital and Health Care
Center, Chicago, Illinois; Cheryl Peterson, Associate Director
for Federal Government Relations, American Nurses Association;
and Mark Stauder, President and Chief Operating Officer, Mercy
Regional Medical Center, Laredo, Texas.
Committee Consideration
On February 4, 1998, the Subcommittee on Immigration and
Claims met in open session and ordered reported the bill H.R.
2759, as amended, by a voice vote, a quorum being present. On
March 24, 1998, the Committee met in open session and ordered
reported favorably the bill H.R. 2759 with amendment by a voice
vote, a quorum being present.
Vote of the Committee
Voice Votes.--An amendment by Mr. Conyers was adopted by
voice vote. The amendment changed the period in which an
attestation would apply, provided for a filing fee for H-1C
attestations, provided that the period of admission for H-1C
nonimmigrants would be three years, provided that the H-1C
program would last for four years, provided for a study to be
completed by the Secretary of Health and Human Services and the
Secretary of Labor that would provide a permanent solution to
the shortage of registered nurses by certain hospitals and
describe an alternative enforcement mechanism for the H-1C
program, and provided that the certification requirement for
alien health care workers found in section 212(a)(5)(C) of the
INA would not apply to aliens who hold full and unrestricted
licenses as nurses or physical therapists in the State of
intended employment.
The bill as amended was reported favorably by voice vote.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 2759, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 14, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2759, the Health
Professional Shortage Area Nursing Relief Act of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for costs of the Immigration and Naturalization
Service), Christi H. Sadoti (for costs of the Department of
Labor), and Leo Lex (for the state and local impact).
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 2759--Health Professional Shortage Area Nursing Relief Act of 1998
CBO estimates that enacting H.R. 2759 would have a
negligible net impact on the federal budget. Enacting H.R. 2759
would affect direct spending and receipts, so pay-as-you-go
procedures would apply. However, we estimate that the amounts
involved would be much less than $500,000 a year. This
legislation contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act of
1995.
H.R. 2759 would establish a new nonimmigrant category for
nurses who would work in areas of the United States with
shortages of health professionals. The bill would provide 500
nonimmigrant visas annually over the next four years, and
recipients could stay in the United States for three years.
Fees charged for these visas would range from $50 to $155,
depending on the current immigration status of the applicant.
Thus, enacting the bill could increase the amount of fees
collected by the Immigration and Naturalization Service (INS)
by between $25,000 and $75,000 annually if all 500 visas are
granted. The INS would spend the fees (without appropriation
action), mostly in the year in which they are collected, so
enacting H.R. 2759 would result in at most a negligible net
budgetary impact on annual spending by the INS.
The bill would require the Department of Labor (DOL) to
charge fees of up to $250 to facilities that file applications
to hire immigrant nurses. This provision would result in the
collection of fees totaling between $15,000 and $50,000
annually, assuming all visas are granted and petitioning
facilities apply to hire more than one worker. Spending of fees
collected by DOL would be subject to appropriation actions.
In addition, the bill would increase civil monetary
penalties for violations of certain laws relating to the hiring
of nonimmigrant nurses. This action could result in the
collection of additional receipts, but we estimate that any
such amounts would be less than $500,000 per year.
By creating a new nonimmigrant visa program for nurses, the
bill would allow certain health facilities, some of them
operated by state and local public agencies, to increase the
number of nurses they employ. In order to participate, these
facilities would have to satisfy criteria established in the
bill and pay the fee to DOL as described above. However, their
participation in the program would be voluntary.
The CBO staff contacts are Mark Grabowicz (for INS costs),
Christi H. Sadoti (for DOL costs), and Leo Lex (for the state
and local impact). This estimate was approved by Robert A.
Sunshine, Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis
Section 1. Short title
The Act may be cited as the ``Health Professional Shortage
Area Nursing Relief Act of 1998.''
Section 2. Requirements for admission of nonimmigrant nurses in health
professional shortage areas during 4-year period
Section 2(a) of the bill amends section 101(a)(15)(H)(i) of
the Immigration and Nationality Act by adding a subclause (c)
creating a nonimmigrant visa program for aliens to perform
services as registered nurses. To qualify for an ``H-1C'' visa,
an alien would have to meet the three qualifications set forth
in section 2(b) of the bill and the facility for which the
alien will perform nursing services must have an unexpired
attestation on file and in effect with the U.S. Secretary of
Labor, as described in section 2(b) of the bill.
Section 2(b) of the bill amends section 212(m)(1) of the
INA in order that it set forth the three qualifications an
alien must possess. First, the alien must have 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. Second, the
alien must have passed an appropriate examination or has a full
and unrestricted license under State law to practice nursing in
the State of intended employment. Third, the alien must be
fully qualified and eligible under the laws governing the place
of intended employment to engage in the practice of nursing as
a registered nurse immediately upon admission to the United
States and is authorized under such laws to be employed by the
facility.
Section 2(b) amends section 212(m)(2)(A) of the INA in
order that it describe the attestation that a facility must
make. The facility must attest that (1) it meets the
requirements of section 212(m)(6) of the INA, (2) the
employment of the alien will not adversely affect the wages and
working conditions of registered nurses similarly employed, (3)
the alien will be paid the wage rate for registered nurses
similarly employed by the facility, (4) the facility has taken
(after the date of enactment of this bill) and is taking timely
and significant steps designed to recruit and retain sufficient
registered nurses who are U.S. 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, (5) there is not a strike or
lockout in the course of a labor dispute, the facility has not
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, (6) at the time of the filing of the petition for H-
1C nurses, 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 bargaining
representative, notice of the filing has been provided to
registered nurses employed at the facility through posting in
conspicuous locations, (7) the facility will not, at any time,
employ a number of aliens issued H-1C visas or otherwise
provided H-1C nonimmigrant status that exceeds 33% of the total
number of registered nurses employed by the facility, and (8)
thefacility will not, with respect to any alien issued an H-1C
visa or otherwise provided H-1C status, authorize the alien to perform
nursing services at any worksite other than a worksite controlled by
the facility or transfer the place of employment of the alien from one
worksite to another. A copy of the attestation shall be provided to
registered nurses employed at the facility.
Section 2(b) amends section 212(m)(2)(B) of the INA so that
it provides a non-exclusive list of ``significant steps'' to
recruit and retain registered nurses: (1) operating a training
program for registered nurses at the facility or financing (or
providing participation in) a training program for registered
nurses elsewhere, (2) providing career development programs and
other methods of facilitating health care workers to become
registered nurses, (3) paying registered nurses wages at a rate
higher than currently being paid to registered nurses similarly
employed in the geographic area, (4) providing adequate support
services to free registered nurses from administrative and
other non-nursing duties, and (5) providing reasonable
opportunities for meaningful salary advancement by registered
nurses. A facility does not need to take more than one step if
it can demonstrate, and the Attorney General determines, that
taking a second step is not reasonable.
Section 2(b) amends section 212(m)(2)(C) of the INA to
provide that attestations shall expire on the later of (1) the
end of the one-year period beginning on the date of its filing,
or (2) the end of the period of admission of the last alien
with respect to whose admission it was applied, and shall apply
to petitions filed during the one-year period beginning on the
date of its filing if the facility states in each such petition
that it continues to comply with the conditions of the
attestation.
Section 2(b) amends section 212(m)(2)(D) of the INA to
provide that a facility may meet the requirements of paragraph
212(m)(2) with respect to more than one registered nurse in a
single petition.
Section 2(b) of the bill amends section 212(m)(2)(E) of the
INA to provide that the Secretary of Labor shall compile and
make available for public examination a list identifying
facilities that have filed attestations for H-1C nonimmigrants
(along with copies of attestations, accompanying documentation
and petitions filed).
Section 212(m)(2)(E) is also amended to provide that 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 attested to conditions or misrepresentation of a material
fact in an attestation. Complaints may be filed by aggreived
persons or organizations (including bargaining
representatives). The Secretary shall conduct an investigation
if there is reasonable cause to believe that a violation has
occurred. The Secretary shall provide for a determination as to
whether or not a basis exists to make a finding that a
violation has occurred, and provide notice and opportunity for
a hearing to interested parties if the Secretary finds that a
basis does exist. If the Secretary finds that a violation
(failure to meet attested to conditions or misrepresentation of
a material fact in an attestation) has occurred, theSecretary
shall notify the Attorney General of such finding, and may, in
addition, impose other appropriate administrative remedies (including
civil monetary penalties not to exceed $1,000 per nurse per violation
with a total penalty not to exceed $10,000 per violation). The
Secretary shall order the payment of back pay as may be necessary to
put a facility in compliance with the prevailing wage requirement. Upon
receipt of notice that a violation has occurred, the Attorney General
shall not approve H-1C petitions filed with respect to a facility
during a period of at least one year.
Section 2(b) of the bill creates a new section 212(m)(2)(F)
of the INA providing for a filing fee for attestations (based
on the costs to the Secretary of Labor of operating the H-1C
program but not to exceed $250).
Section 2(b) of the bill amends section 212(m)(3) of the
INA to provide that the period of admission of an H-1C
nonimmigrant shall be three years.
Section 2(b) of the bill amends section 212(m)(4) of the
INA to provide that the total number of nonimmigrant visas
issued pursuant to H-1C petitions in a fiscal year shall not
exceed 500. The number of petitions granted for each state in a
fiscal year shall not exceed 25 for states with populations of
less than 10,000,000 and 50 for states with larger populations.
Section 2(b) of the bill amends section 212(m)(5) of the
INA to provide that a facility participating in the H-1C
program shall provide H-1C nonimmigrants with a wage rate and
working conditions commensurate with those of nurses similarly
employed by the facility, shall require H-1C nonimmigrants to
work hours commensurate with those of nurses similarly employed
by the facility, and shall not interfere with the right of H-1C
nonimmigrants to join or organize a union.
Section 2(b) of the bill creates a new section 212(m)(6) of
the INA providing that for a facility to be able to participate
in the H-1C program, it must be a hospital defined in section
1886(d)(1)(B) of the Social Security Act, be located in a
health professional shortage area (as of March 31, 1997, and as
defined in section 332 of the Public Health Service Act), have
not less than 190 acute care beds, and have not less than 35%
of its total number of acute care inpatient days made up of
patients who were entitled to benefits under Part A of title
XVIII of the Social Security Act and have not less than 28%
made up of patients who were eligible for assistance under a
State plan approved under title XIX of the Social Security
Act).
Section 2(c) of the bill strikes the designation (at
section 101(a)(15)(H)(i)(a) of the INA) of the expired ``H-1A''
nonimmigrant nursing program.
Section 2(d) of the bill provides that not later than 90
days after the bill's enactment, the Secretary of Labor (in
consultation with the Secretary of Health and Human Services)
and the Attorney General shall promulgate final or interim
final regulations to carry out the H-1C program.
Section 2(e) of the bill provides that facilities may file
H-1C petitions only during the four year period beginning on
the date that interim final or final regulations are first
promulgated.
Section 3. Recommendations for alternative remedy for nursing shortage
Section 3 of the bill provides that by no later than the
conclusion of the H-1C program, the Secretary of Health and
Human Services and the Secretary of Labor shall jointly submit
to Congress recommendations as to how to eliminate the need for
the H-1C program by providing for a permanent solution to the
shortage of citizen and permanent resident registered nurses
and as to a more effective enforcement system for the H-1C
program than that set out in the bill.
Section 4. Exemption for certain nurses and physical therapists from
certification requirements for foreign health care workers
Section 4 of the bill exempts those aliens who have full
and unrestricted licenses as nurses or physical therapists in
the State of intended employment from the certification
requirements for alien health care workers found in section
212(a)(5)(C) of the INA. The Committee is disturbed that the
Immigration and Naturalization Service has not yet issued final
regulations implementing section 212(a)(5)(C)--which was
enacted almost two years ago on September 30, 1996.
Agency Views
Department of Labor,
Washington, DC, March 23, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Chairman Hyde: We are writing to again express the
Administration's strong opposition to H.R. 2759, the ``Health
Professional Shortage Area Nursing Relief Act,'' which is
scheduled for markup by your Committee on March 24. This
legislation would establish a new temporary foreign nurses
program under the Immigration and Nationality Act (INA). For
the reasons set out below, the Department believes such a new
temporary foreign nurses program is neither necessary nor
advisable. We urge that you do not report the bill.
First, there is no national shortage of nurses. As brought
out at a November 5, 1997, hearing by the Subcommittee on
Immigration and Claims, the Department of Health and Human
Services--which offers the best information currently
available--indicates that there is no national shortage of
registered nurses. This has been the case for some time. In
addition, the Immigration Nursing Relief Advisory Committee--in
its 1995 report--unanimously agreed that there was no national
nursing shortage.
Second, employers facing specialty or locality shortages in
the nursing profession already have several means of access to
foreign nurses. To meet any such shortages, current law already
allows foreign nurses to enter and work in the U.S. under four
separate existing programs. These include as permanent
employment-based immigrants, as temporary workers under the
temporary entry provisions of the North American Free Trade
Agreement, as temporary workers under the H-1B provisions of
the INA if the job requires a bachelor's degree (or
equivalent), and as temporary workers under the H-2B provisions
of the INA if the job itself is ``temporary'' (less than one
year) in duration. Immigration should not be our principal
public policy response to temporary labor shortages. And in
light of the existing array of programs that already allow
access to foreign nurses, there is simply no justification for
the establishment of yet another program intended to serve a
narrow, special interest.
Third, the Department believes that special legislation of
this type is not appropriate. Such a narrowly drawn new program
to address a ``perceived'' local shortage in the nursing
profession can only make our immigration law more complex and
confusing. Moreover, new temporary nonimmigrant programs almost
inevitably become feeder programs for permanent residency.
Also, the bill is seriously inadequate in terms of the
protections it would afford both U.S. and temporary foreign
nurses.
In summary, the Department of Labor firmly believes a new
temporary foreign nurses program is unnecessary and
inadvisable. The need for such a special foreign nurses program
has been considered and rejected on several recent occasions in
the House and the Administration strongly urges that your
Committee reject H.R. 2759 as well.
We believe the first step that needs to be taken to address
any current local shortage of nurses is to make the unfilled
job opportunities more attractive for domestic workers, such as
through increased salaries and benefits, improved work schedule
flexibility, and enhanced training and educational
opportunities. And where these steps fail, the other mechanisms
which we have already described as available in existing law
can be used to meet staffing needs. There is simply no
justification for yet another temporary foreign nurses program.
We appreciate your Committee's consideration of our views.
The Office of Management and Budget advises that there is
no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Alexis M. Herman, Secretary.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) * * *
* * * * * * *
(15) The term ``immigrant'' means every alien except an alien
who is within one of the following classes of nonimmigrant
aliens--
(A) * * *
* * * * * * *
(H) an alien (i)[(a) 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 each
facility (which facility shall include the petitioner
and each worksite, other than a private household
worksite, if the worksite is not the alien's employer
or controlled by the employer) for which the alien will
perform the services, or] (b) subject to section
212(j)(2), who is coming temporarily to the United
States to perform services (other than services
described in subclause (a) during the period in which
such subclause applies and other than services
described in subclause (ii)(a) or in subparagraph (O)
or (P)) in a specialty occupation described in section
214(i)(1) or as a fashion model, who meets the
requirements for the occupation specified in section
214(i)(2) or, in the case of a fashion model, is of
distinguished merit and ability, and with respect to
whom the Secretary of Labor determines and certifies to
the Attorney General that the intending employer has
filed with the Secretary an application under section
212(n)(1)[; or], 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 (ii)(a) having
a residence in a foreign country which he has no
intention ofabandoning who is coming temporarily to the
United States to perform agricultural labor or services, as defined by
the Secretary of Labor in regulations and including agricultural labor
defined in section 3121(g) of the Internal Revenue Code of 1954 and
agriculture as defined in section 3(f) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal nature, or (b)
having a residence in a foreign country which he has no intention of
abandoning who is coming temporarily to the United States to perform
other temporary service or labor if unemployed persons capable of
performing such service or labor cannot be found in this country, but
this clause shall not apply to graduates of medical schools coming to
the United States to perform services as members of the medical
profession; or (iii) having a residence in a foreign country which he
has no intention of abandoning who is coming temporarily to the United
States as a trainee, other than to receive graduate medical education
or training, in a training program that is not designed primarily to
provide productive employment; and the alien spouse and minor children
of any such alien specified in this paragraph if accompanying him or
following to join him;
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, aliens
who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to
the United States:
(1) * * *
* * * * * * *
(5) Labor certification and qualifications for
certain immigrants.--
(A) * * *
* * * * * * *
(C) Uncertified foreign health-care
workers.--Any alien who seeks to enter the
United States for the purpose of performing
labor as a health-care worker, other than a
[physician,] physician or an alien who has a
full and unrestricted license as a nurse or
physical therapist in the State of intended
employment, is inadmissible unless the alien
presents to the consular officer, or, in the
case of an adjustment of status, the Attorney
General, a certificate from the Commission on
Graduates of Foreign Nursing Schools, or a
certificate from an equivalent independent
credentialing organization approved by the
Attorney General in consultation with the
Secretary of Health and Human Services,
verifying that--
(i) * * *
* * * * * * *
[(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(a), 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 or Canada;
[(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)(a) is an attestation as to the following:
[(i) There would be a substantial disruption through
no fault of the facility in the delivery of health care
services of the facility without the services of such
an alien or aliens.
[(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) Either (I) 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, or (II) the facility
is subject to an approved State plan for the
recruitment and retention of nurses (described in
paragraph (3)).
[(v) There is not a strike or lockout in the course
of a labor dispute, 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)(a),
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
beenprovided to registered nurses employed at the
facility through posting in conspicuous locations.
A facility is considered not to meet clause (i) (relating to an
attestation of a substantial disruption in delivery of health
care services) if the facility, within the previous year, laid
off registered nurses. Notwithstanding the previous sentence, a
facility that lays off a registered nurse other than a staff
nurse still meets clause (i) if, in its attestation under this
subparagraph, the facility has attested that it will not
replace the nurse with a nonimmigrant described in section
101(a)(15)(H)(i)(a) (either through promotion or otherwise) for
a period of 1 year after the date of the lay off. 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. In the case of an
alien for whom an employer has filed an attestation under this
subparagraph and who is performing services at a worksite other
than the employer's or other than a worksite controlled by the
employer, the Secretary may waive such requirements for the
attestation for the worksite as may be appropriate in order to
avoid duplicative attestations, in cases of temporary,
emergency circumstances, with respect to information not within
the knowledge of the attestor, or for other good cause.
[(B) For purposes of subparagraph (A)(iv)(I), 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
nonnursing 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)(I). Nothing herein 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) 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 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)(a) 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 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 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 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 Secretary of Labor shall provide for a process under
which a State may submit to the Secretary a plan for the
recruitment and retention of United States citizens and
immigrants who are authorized to perform nursing services as
registered nurses in facilities in the State. Such a plan may
include counseling and educating health workers and other
individuals concerning the employment opportunities available
to registered nurses. The Secretary shall provide, on an annual
basis in consultation with the Secretary of Health and Human
Services, for the approval or disapproval of such a plan, for
purposes of paragraph (2)(A)(iv)(II). Such a plan may not be
considered to be approved with respect to the facility unless
the plan provides for the taking of significantsteps described
in paragraph (2)(A)(iv)(I) with respect to registered nurses in the
facility.
[(4) The period of admission of an alien under section
101(a)(15)(H)(i)(a) 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
(or a total period of admission of 6 years in the case of
extraordinary circumstances, as determined by the Attorney
General).
[(5) For purposes of this subsection and section
101(a)(15)(H)(i)(a), the term ``facility'' includes an employer
who employs registered nurses in a home setting.]
(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 has not 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.
(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 Health
Professional Shortage Area Nursing Relief Act of 1998. 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 one step if the facility can demonstrate, and
the Attorney General determines, 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 whoseadmission 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 petitions
granted under section 101(a)(15)(H)(i)(c) for each State in
each fiscal year shall not exceed the following:
(A) For States with populations of less than
10,000,000, based upon the 1990 decennial census of
population, 25 petitions.
(B) For States with populations of 10,000,000 or
more, based upon the the 1990 decennial census of
population, 50 petitions.
(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.
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