[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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \4\ INA sec. 212(m)(4).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \6\ INA section 212(m)(1)(A)-(C).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
          [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
---------------------------------------------------------------------------
    \8\ INA section 212(m)(2)(A).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \9\ INA section 212(m)(2)(E).
    \10\  Id.
---------------------------------------------------------------------------

         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.
---------------------------------------------------------------------------
          [T]he New York-City-Newark, Chicago, Houston, Los 
        Angeles, and Miami [areas] have accounted for two-
        thirds of all petitions filed * * * .13
---------------------------------------------------------------------------
    \13\ Id. at 22.
---------------------------------------------------------------------------
          [O]ver 80 percent of approved petitions * * * were 
        for nurses from the Philippines.14
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    \14\ Id. at 25.
---------------------------------------------------------------------------
          In the local labor markets studied * * * H-1A nurses 
        were [not] paid differently from U.S. 
        nurses.15
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
          [T]here was no evidence of systematic differences in 
        work assignments given to H-1A * * * 
        nurses.16
---------------------------------------------------------------------------
    \16\ Id. at 26.
---------------------------------------------------------------------------
          [T]here were no indications of problems with H-1A 
        nurses * * * in delivering care * * *.17
---------------------------------------------------------------------------
    \17\ Id. at 27.
---------------------------------------------------------------------------
          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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \20\ Id. at Appendix A, page 1.
    \21\ Id. at Appendix A, page 2.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \26\ Letter from Geri Marullo, Executive Director, American Nurses 
Association, to U.S. Representative Bobby Rush at 2 (October 31, 1997).
---------------------------------------------------------------------------

                                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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