[106th Congress Public Law 95]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ095.106]
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NURSING RELIEF FOR DISADVANTAGED AREAS ACT OF 1999
[[Page 113 STAT. 1312]]
Public Law 106-95
106th Congress
An Act
To amend the Immigration and Nationality Act with respect to the
requirements for the admission of nonimmigrant nurses who will practice
in health professional shortage areas. <<NOTE: Nov. 12, 1999 - [H.R.
441]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Nursing Relief for
Disadvantaged Areas Act of 1999.>> assembled,
SECTION 1. <<NOTE: 8 USC 1101 note.>> SHORT TITLE.
This Act may be cited as the ``Nursing Relief for Disadvantaged
Areas Act of 1999''.
SEC. 2. REQUIREMENTS FOR ADMISSION OF NONIMMIGRANT NURSES IN HEALTH
PROFESSIONAL SHORTAGE AREAS DURING 4-YEAR PERIOD.
(a) Establishment of a New Nonimmigrant Classification for
Nonimmigrant Nurses in Health Professional Shortage Areas.--Section
101(a)(15)(H)(i) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)) is amended by striking ``; or'' at the end and
inserting the following: ``, or (c) who is coming temporarily to the
United States to perform services as a registered nurse, who meets the
qualifications described in section 212(m)(1), and with respect to whom
the Secretary of Labor determines and certifies to the Attorney General
that an unexpired attestation is on file and in effect under section
212(m)(2) for the facility (as defined in section 212(m)(6)) for which
the alien will perform the services; or''.
(b) Requirements.--Section 212(m) of the Immigration and Nationality
Act (8 U.S.C. 1182(m)) is amended to read as follows:
``(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), with respect to an alien who is coming to the
United States to perform nursing services for a facility, are that the
alien--
``(A) has obtained a full and unrestricted license to
practice professional nursing in the country where the alien
obtained nursing education or has received nursing education in
the United States;
``(B) has passed an appropriate examination (recognized in
regulations promulgated in consultation with the Secretary of
Health and Human Services) or has a full and unrestricted
license under State law to practice professional nursing in the
State of intended employment; and
``(C) is fully qualified and eligible under the laws
(including such temporary or interim licensing requirements
which authorize the nurse to be employed) governing the place of
intended employment to engage in the practice of professional
[[Page 113 STAT. 1313]]
nursing as a registered nurse immediately upon admission to the
United States and is authorized under such laws to be employed
by the facility.
``(2)(A) The attestation referred to in section 101(a)(15)(H)(i)(c),
with respect to a facility for which an alien will perform services, is
an attestation as to the following:
``(i) The facility meets all the requirements of paragraph
(6).
``(ii) The employment of the alien will not adversely affect
the wages and working conditions of registered nurses similarly
employed.
``(iii) The alien employed by the facility will be paid the
wage rate for registered nurses similarly employed by the
facility.
``(iv) The facility has taken and is taking timely and
significant steps designed to recruit and retain sufficient
registered nurses who are United States citizens or immigrants
who are authorized to perform nursing services, in order to
remove as quickly as reasonably possible the dependence of the
facility on nonimmigrant registered nurses.
``(v) There is not a strike or lockout in the course of a
labor dispute, the facility did not lay off and will not lay off
a registered nurse employed by the facility within the period
beginning 90 days before and ending 90 days after the date of
filing of any visa petition, and the employment of such an alien
is not intended or designed to influence an election for a
bargaining representative for registered nurses of the facility.
``(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(c), notice of
the filing has been provided by the facility to the bargaining
representative of the registered nurses at the facility or,
where there is no such bargaining representative, notice of the
filing has been provided to the registered nurses employed at
the facility through posting in conspicuous locations.
``(vii) The facility will not, at any time, employ a number
of aliens issued visas or otherwise provided nonimmigrant status
under section 101(a)(15)(H)(i)(c) that exceeds 33 percent of the
total number of registered nurses employed by the facility.
``(viii) The facility will not, with respect to any alien
issued a visa or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(i)(c)--
``(I) authorize the alien to perform nursing
services at any worksite other than a worksite
controlled by the facility; or
``(II) transfer the place of employment of the alien
from one worksite to another.
Nothing in clause (iv) shall be construed as requiring a
facility to have taken significant steps described in such
clause before the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999. A copy <<NOTE: Deadline.>>
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:
[[Page 113 STAT. 1314]]
``(i) Operating a training program for registered nurses at
the facility or financing (or providing participation in) a
training program for registered nurses elsewhere.
``(ii) Providing career development programs and other
methods of facilitating health care workers to become registered
nurses.
``(iii) Paying registered nurses wages at a rate higher than
currently being paid to registered nurses similarly employed in
the geographic area.
``(iv) Providing reasonable opportunities for meaningful
salary advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be
an exclusive list of the significant steps that may be taken to meet the
conditions of subparagraph (A)(iv). Nothing in this subparagraph shall
require a facility to take more than one step if the facility can
demonstrate that taking a second step is not reasonable.
``(C) Subject to subparagraph (E), an attestation under subparagraph
(A)--
``(i) shall <<NOTE: Expiration date.>> 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 <<NOTE: Applicability.>> 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) <<NOTE: Records. Public information.>> 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 <<NOTE: Procedures.>> 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) <<NOTE: Deadlines.>> 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
[[Page 113 STAT. 1315]]
the interested parties and an opportunity for a hearing on the complaint
within 60 days of the date of the determination.
``(iv) If the Secretary of Labor finds, after notice and opportunity
for a hearing, that a facility (for which an attestation is made) has
failed to meet a condition attested to or that there was a
misrepresentation of material fact in the attestation, the Secretary
shall notify the Attorney General of such finding and may, in addition,
impose such other administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per nurse per violation,
with the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such notice, the
Attorney General shall not approve petitions filed with respect to a
facility during a period of at least one year for nurses to be employed
by the facility.
``(v) In addition to the sanctions provided for under clause (iv),
if the Secretary of Labor finds, after notice and an opportunity for a
hearing, that a facility has violated the condition attested to under
subparagraph (A)(iii) (relating to payment of registered nurses at the
prevailing wage rate), the Secretary shall order the facility to provide
for payment of such amounts of back pay as may be required to comply
with such condition.
``(F)(i) The Secretary of Labor shall impose on a facility filing an
attestation under subparagraph (A) a filing fee, in an amount prescribed
by the Secretary based on the costs of carrying out the Secretary's
duties under this subsection, but not exceeding $250.
``(ii) Fees collected under this subparagraph shall be deposited in
a fund established for this purpose in the Treasury of the United
States.
``(iii) The collected fees in the fund shall be available to the
Secretary of Labor, to the extent and in such amounts as may be provided
in appropriations Acts, to cover the costs described in clause (i), in
addition to any other funds that are available to the Secretary to cover
such costs.
``(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
``(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 101(a)(15)(H)(i)(c) in each fiscal year
shall not exceed 500. The number of such visas issued for employment in
each State in each fiscal year shall not exceed the following:
``(A) For States with populations of less than 9,000,000,
based upon the 1990 decennial census of population, 25 visas.
``(B) For States with populations of 9,000,000 or more,
based upon the 1990 decennial census of population, 50 visas.
``(C) If the total number of visas available under this
paragraph for a fiscal year quarter exceeds the number of
qualified nonimmigrants who may be issued such visas during
those quarters, the visas made available under this paragraph
shall be issued without regard to the numerical limitation under
subparagraph (A) or (B) of this paragraph during the last fiscal
year quarter.
``(5) A facility that has filed a petition under section
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing services
for the facility--
[[Page 113 STAT. 1316]]
``(A) shall provide the nonimmigrant a wage rate and working
conditions commensurate with those of nurses similarly employed
by the facility;
``(B) shall require the nonimmigrant to work hours
commensurate with those of nurses similarly employed by the
facility; and
``(C) shall not interfere with the right of the nonimmigrant
to join or organize a union.
``(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), the term `facility' means a subsection (d) hospital
(as defined in section 1886(d)(1)(B) of the Social Security Act (42
U.S.C. 1395ww(d)(1)(B))) that meets the following requirements:
``(A) As of March 31, 1997, the hospital was located in a
health professional shortage area (as defined in section 332 of
the Public Health Service Act (42 U.S.C. 254e)).
``(B) Based on its settled cost report filed under title
XVIII of the Social Security Act for its cost reporting period
beginning during fiscal year 1994--
``(i) the hospital has not less than 190 licensed
acute care beds;
``(ii) the number of the hospital's inpatient days
for such period which were made up of patients who (for
such days) were entitled to benefits under part A of
such title is not less than 35 percent of the total
number of such hospital's acute care inpatient days for
such period; and
``(iii) the number of the hospital's inpatient days
for such period which were made up of patients who (for
such days) were eligible for medical assistance under a
State plan approved under title XIX of the Social
Security Act, is not less than 28 percent of the total
number of such hospital's acute care inpatient days for
such period.
``(7) For purposes of paragraph (2)(A)(v), the term `lay
off', with respect to a worker--
``(A) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace rules,
cause, voluntary departure, voluntary retirement, or the
expiration of a grant or contract; but
``(B) does not include any situation in which the
worker is offered, as an alternative to such loss of
employment, a similar employment opportunity with the
same employer at equivalent or higher compensation and
benefits than the position from which the employee was
discharged, regardless of whether or not the employee
accepts the offer.
Nothing in this paragraph is intended to limit an employee's or
an employer's rights under a collective bargaining agreement or
other employment contract.''.
(c) Repealer.--Clause (i) of section 101(a)(15)(H) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)) is amended
by striking subclause (a).
(d) Implementation.--Not <<NOTE: Deadline. Regulations. 8 USC 1182
note.>> later than 90 days after the date of the enactment of this Act,
the Secretary of Labor (in consultation, to the extent required, with
the Secretary of Health and Human Services) and the Attorney General
shall promulgate final or interim final regulations to carry out section
212(m) of the Immigration and Nationality Act (as amended by subsection
(b)).
[[Page 113 STAT. 1317]]
(e) Limiting <<NOTE: Applicability. 8 USC 1182 note.>> Application
of Nonimmigrant Changes to 4-Year Period.--The amendments made by this
section shall apply to classification petitions filed for nonimmigrant
status only during the 4-year period beginning on the date that interim
or final regulations are first promulgated under subsection (d).
SEC. 3. <<NOTE: 8 USC 1182 note.>> RECOMMENDATIONS FOR ALTERNATIVE
REMEDY FOR NURSING SHORTAGE.
Not <<NOTE: Deadline.>> later than the last day of the 4-year
period described in section 2(e), the Secretary of Health and Human
Services and the Secretary of Labor shall jointly submit to the Congress
recommendations (including legislative specifications) with respect to
the following:
(1) A program to eliminate the dependence of facilities
described in section 212(m)(6) of the Immigration and
Nationality Act (as amended by section 2(b)) on nonimmigrant
registered nurses by providing for a permanent solution to the
shortage of registered nurses who are United States citizens or
aliens lawfully admitted for permanent residence.
(2) A method of enforcing the requirements imposed on
facilities under sections 101(a)(15)(H)(i)(c) and 212(m) of the
Immigration and Nationality Act (as amended by section 2) that
would be more effective than the process described in section
212(m)(2)(E) of such Act (as so amended).
SEC. 4. CERTIFICATION FOR CERTAIN ALIEN NURSES.
(a) In General.--
(1) Section 212 of the Immigration and Nationality Act (8
U.S.C. 1182) is amended by adding at the end the following new
subsection:
``(r) Subsection (a)(5)(C) shall not apply to an alien who seeks to
enter the United States for the purpose of performing labor as a nurse
who presents to the consular officer (or in the case of an adjustment of
status, the Attorney General) a certified statement from the Commission
on Graduates of Foreign Nursing Schools (or an equivalent independent
credentialing organization approved for the certification of nurses
under subsection (a)(5)(C) by the Attorney General in consultation with
the Secretary of Health and Human Services) that--
``(1) the alien has a valid and unrestricted license as a
nurse in a State where the alien intends to be employed and such
State verifies that the foreign licenses of alien nurses are
authentic and unencumbered;
``(2) the alien has passed the National Council Licensure
Examination (NCLEX);
``(3) the alien is a graduate of a nursing program--
``(A) in which the language of instruction was
English;
``(B) located in a country--
``(i) <<NOTE: Deadline.>> designated by such
commission not later than 30 days after the date
of the enactment of the Nursing Relief for
Disadvantaged Areas Act of 1999, based on such
commission's assessment that the quality of
nursing education in that country, and the English
language proficiency of those who complete such
programs in that country, justify the country's
designation; or
``(ii) designated on the basis of such an
assessment by unanimous agreement of such
commission and any
[[Page 113 STAT. 1318]]
equivalent credentialing organizations which have
been approved under subsection (a)(5)(C) for the
certification of nurses under this subsection; and
``(C)(i) which was in operation on or before the
date of the enactment of the Nursing Relief for
Disadvantaged Areas Act of 1999; or
``(ii) has been approved by unanimous agreement of
such commission and any equivalent credentialing
organizations which have been approved under subsection
(a)(5)(C) for the certification of nurses under this
subsection.''.
(2) Section 212(a)(5)(C) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(5)(C)) is amended by striking ``Any alien
who seeks'' and inserting ``Subject to subsection (r), any alien
who seeks''.
(b) Effective Date.--The <<NOTE: 8 USC 1182 note.>> amendments made
by subsection (a) shall take effect on the date of the enactment of this
Act, without regard to whether or not final regulations to carry out
such amendments have been promulgated by such date.
(c) Issuance <<NOTE: Deadline. 8 USC 1182 note.>> of Certified
Statements.--The Commission on Graduates of Foreign Nursing Schools, or
any approved equivalent independent credentialing organization, shall
issue certified statements pursuant to the amendment under subsection
(a) not more than 35 days after the receipt of a complete application
for such a statement.
SEC. 5. NATIONAL INTEREST WAIVERS OF JOB OFFER REQUIREMENTS FOR ALIENS
WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES
OR ALIENS OF EXCEPTIONAL ABILITY.
Section 203(b)(2)(B) of the Immigration and Nationality Act (8
U.S.C. 1153(b)(2)(B)) is amended to read as follows:
``(B) Waiver of job offer.--
``(i) National interest waiver.--Subject to
clause (ii), the Attorney General may, when the
Attorney General deems it to be in the national
interest, waive the requirements of subparagraph
(A) that an alien's services in the sciences,
arts, professions, or business be sought by an
employer in the United States.
``(ii) Physicians working in shortage areas or
veterans facilities.--
``(I) In general.--The Attorney
General shall grant a national interest
waiver pursuant to clause (i) on behalf
of any alien physician with respect to
whom a petition for preference
classification has been filed under
subparagraph (A) if--
``(aa) the alien physician
agrees to work full time as a
physician in an area or areas
designated by the Secretary of
Health and Human Services as
having a shortage of health care
professionals or at a health
care facility under the
jurisdiction of the Secretary of
Veterans Affairs; and
``(bb) a Federal agency or a
department of public health in
any State has previously
determined that the alien
physician's work in
[[Page 113 STAT. 1319]]
such an area or at such facility
was in the public interest.
``(II) Prohibition.--No permanent
resident visa may be issued to an alien
physician described in subclause (I) by
the Secretary of State under section
204(b), and the Attorney General may not
adjust the status of such an alien
physician from that of a nonimmigrant
alien to that of a permanent resident
alien under section 245, until such time
as the alien has worked full time as a
physician for an aggregate of five years
(not including the time served in the
status of an alien described in section
101(a)(15)(J)), in an area or areas
designated by the Secretary of Health
and Human Services as having a shortage
of health care professionals or at a
health care facility under the
jurisdiction of the Secretary of
Veterans Affairs.
``(III) Statutory construction.--
Nothing in this subparagraph may be
construed to prevent the filing of a
petition with the Attorney General for
classification under section 204(a), or
the filing of an application for
adjustment of status under section 245,
by an alien physician described in
subclause (I) prior to the date by which
such alien physician has completed the
service described in subclause (II).
``(IV) Effective date.--The
requirements of this subsection do not
affect waivers on behalf of alien
physicians approved under section
203(b)(2)(B) before the enactment date
of this subsection. In the case of a
physician for whom an application for a
waiver was filed under section
203(b)(2)(B) prior to November 1, 1998,
the Attorney General shall grant a
national interest waiver pursuant to
section 203(b)(2)(B) except that the
alien is required to have worked full
time as a physician for an aggregate of
three years (not including time served
in the status of an alien described in
section 101(a)(15)(J)) before a visa can
be issued to the alien under section
204(b) or the status of the alien is
adjusted to permanent resident under
section 245.''.
SEC. 6. FURTHER CLARIFICATION OF TREATMENT OF CERTAIN INTERNATIONAL
ACCOUNTING FIRMS.
Section 206(a) of the Immigration Act of 1990 (8 U.S.C. 1101 note)
is amended to read as follows:
``(a) Clarification of Treatment of Certain International Accounting
and Management Consulting Firms.--In applying sections 101(a)(15)(L) and
203(b)(1)(C) of the Immigration and Nationality Act, and for no other
purpose, in the case of a partnership that is organized in the United
States to provide accounting or management consulting services and that
markets its accounting or management consulting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is collectively owned and controlled by
the member accounting and management consulting firms or by the elected
[[Page 113 STAT. 1320]]
members (partners, shareholders, members, employees) thereof, an entity
that is organized outside the United States to provide accounting or
management consulting services shall be considered to be an affiliate of
the United States accounting or management consulting partnership if it
markets its accounting or management consulting services under the same
internationally recognized name directly or indirectly under an
agreement with the same worldwide coordinating organization of which the
United States partnership is also a member. Those partnerships organized
within the United States and entities organized outside the United
States which are considered affiliates under this subsection shall
continue to be considered affiliates to the extent such firms enter into
a plan of association with a successor worldwide coordinating
organization, which need not be collectively owned and controlled.''.
Approved November 12, 1999.
LEGISLATIVE HISTORY--H.R. 441:
---------------------------------------------------------------------------
HOUSE REPORTS: No. 106-135 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 145 (1999):
May 24, considered and passed House.
Oct. 22, considered and passed Senate, amended.
Nov. 2, House concurred in Senate amendment.
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