Chat For Nurses: H-1C's, TN's and Permanent Residence

Transcript

Chat For Nurses: H-1C's, TN's and Permanent Residence, with Carl Shusterman, Esq.

Jennifer Wipf:  Welcome to our chat for Nurses: H-1C's, TN's and Permanent Residence. Our host tonight is Carl Shusterman, leading immigration attorney, and your guide to this site, Jennifer Wipf, will moderate.

Carl Shusterman:  Carl Shusterman: Good evening all :) 

Jennifer Wipf: Please remember that all questions and answers are of a general nature and should not be construed as legal advice. :)

Question #1: Who's eligible for H1C Visa? 

Carl Shusterman: To be qualified for an H-1C visa, an RN must be petitioned by a hospital with an approved attestation (more about this later) and have a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) and:

#1 have a valid, unrestricted license as a nurse in the state where s/he will be employed.

The State must verify that any foreign licenses are authentic and unencumbered;

#2 the nurse has passed the NCLEX (state board examination) and;

#3: the nurse is a graduate of an English language nursing program in a country that is designated by CGFNS (i.e U.S., Canada, Great Britain, Ireland, South Africa, Australia and New Zealand) and the nursing school must have been in operation on or before Nov 12, 1999. OR must have been approved by unanimous agreement by CGFNS and any other approved credentialing organizations.

Question #2:   I'm studying for my BSN in the US how do I go about finding an employer to sponsor me for a permanent visa? Are there any agencies?

Carl Shusterman: Yes, there are a number of agencies. Rather than give any advertisements on line :), if you e-mail me, at:

carl.shusterman@gte.net ,

I would be happy to refer you to a hospital or registry which sponsors RNs for green cards.

Question #3:  My wife is on H-4 now and is going to take CGFNS exam this summer. If she passes the exam and receives her CGFNS certificate, will it be sufficient to apply for the permanent residence? Does she need to find an employer first? Does she need a VisaScreen too?

Carl Shusterman:  No RN receives either a temporary visa or permanent residence through her employment without being petitioned by a US employer.

Jennifer Wipf: Thanks Carl, here's our next question:

Question #4:  Will there be a problem if I'm holding an H4 visa if I would take the NCLEX-RN exam?

Carl Shusterman:   No, there is no problem with that.

Question #5: What is Schedule A?

Carl Shusterman: Schedule A is a list of categories designated by the US Dept. of Labor as not requiring an alien labor certification. Schedule A, group 1 is a list of occupations which the Secretary of Labor has deemed to be in short supply in the United States. For the last decade, there have been only two occupations on this list.

#1: Physical therapists and

#2 - Registered nurses.

That is why it is easier and less expensive for physical therapists and nurses to obtain green cards, than it is for anyone else applying through their employment.

Question #6: On TN nearly 5 yrs. Was 1st staff RN to be turned down for labor cert. for H-1b in Northwest. Ready to file I-140. My hospital is not eligible for H-1C. My TN expires Dec. 2.

What do I do if my I-140 is not processed--do I file an extension via mail for the TN with Nebraska so I don't leave the USA? Will I lose my TN & be in trouble. Out of work?

Carl Shusterman: This problem occurs frequently in my practice. The TN status means that you are representing to the INS that you have no intentions of residing permanently in the US. However, the filing of an I-140 on your behalf demonstrates the opposite that you intend to apply for permanent residence in the US.

Therefore, the best strategy is to wait a minimum of 60 days after you receive TN status before having an I-140 submitted on your behalf.

If you have the I-140 filed sooner than 60 days, you risk having INS determine that you misrepresented your original intention to return to Canada (or Mexico). However, given the long processing times that prevail in all INS service centers, with the exception of the Vermont service center, it is also a risk if you file an I-140 months after receiving your one year TN status.

Therefore, assuming that your I-140 is filed within the designated time period, and is not approved before your TN status is set to expire, I advise you to not leave the country, but to apply for an extension of your TN status at the Nebraska Service Center... no more than 1 week before your TN status is set to expire.

Make sure to indicate on your TN extension application that a visa petition has been filed on your behalf.

The mere submission of your application for an extension of your TN status buys you an additional 240 days of work authorization. Hopefully, your I-140 will be approved during this period and/or your TN extension will be approved.

However, if worst comes to worst, Section 245k of the Immigration Law allows you to adjust status in an employment based category, as long as you have not been out of status, for more than 180 days.

Question #7: Is RN still in group 1 list now?  

Carl Shusterman: As we discussed earlier in the chat, nurses are still on Schedule A, group 1, and are not subject to the requirement that they obtain individual labor certifications.

Jennifer Wipf:  This next question shares a popular underlying theme with many that I see here tonight:

Question #8: Providing that RN does not need EAD, how long does it take to obtain GN? Consular process vs. AOS (from H-4)?

Carl Shusterman: Employment based green cards even for registered nurses are taking around three years to approve. However, as soon as the application for adjustment of status is submitted to the INS you are eligible to apply for an employment authorization document (EAD). The length of time that it takes to obtain an EAD varies according to service center, usually from 30 to 90 days. See:

http://shusterman.com/toc-sc.html

Jennifer Wipf: For all those sending me questions, please keep in mind that we are only taking questions related to immigration issues for nurses right now.

Question #9: How do I as an RN on LULAC get a green card?

Carl Shusterman:  The problem with adjusting status to permanent residence for persons on LULAC, CSS and other late amnesty cases, is that unless the nurse qualifies for adjustment of status under section 245i, by virtue of having a priority date prior to January 15th, 1998, it is impossible to adjust status because, by definition, late amnesty filers
under LULAC have been illegal in the United States prior to January 1st, 1982.

Question #10:  How do I find the shortage area?

Carl Shusterman: The Health Professional Shortage Areas as of March 30, 1997, the date required by the new nurse law may be found on line at:

http://shusterman.com/hpsa.html    :)

Question #11: When should I submit a VisaScreen certificate for nurses?

Carl Shusterman: The VisaScreen certificate issued by ICHP should be submitted along with your application for adjustment of status, or, if you have not received your certificate at that time, simply bring your VisaScreen certificate with you to your interview for adjustment of status.

If there is no interview, the INS will request the certificate by mail.

For more information about the VisaScreen, and the new nursing law, see:

http://shusterman.com/toc-rn.html

Question #12:  What is the best way for a nurse to file, through AOS or consular process?

Carl Shusterman:  Whether to adjust status in the United States or to consular process depends on a number of factors.

For example, if you are from the Philippines, there are a tremendous number of nurses in line to consular process. If you are from Canada, Britain, or most European countries, there is no line at all to consular process.

However, in general, I would advise nurses to adjust their status in the United States unless their case is squeaky clean :)

If anything could go wrong, it probably will, and it's a great comfort for most nurses to have their attorney sitting next to them during the interview.

Our firm has obtained green cards for over 5,000 RNs :) during the past 18 years,  mostly by adjustment of status. I believe that most of my clients would agree with me that this is the better way to obtain permanent residence.

Jennifer Wipf:   For those who have missed anything, the transcript will be on line within the month. It will be posted on the front page and in our newsletter.

Question #13:  What about nurses who will be entering for the 1st time on their green card? How do I take the NCLEX if I'm not in the US?

Carl Shusterman: Most of our nurses who consular process, do so because they are not in the United States. If the nurse has passed the CGFNS exam, she may be petitioned by a US employer.

At her immigrant visa interview abroad, she presents her VisaScreen certificate. Only when she arrives in the United States as a permanent resident does she take the NCLEX examination. Prior to passing the NCLEX, the nurse may work using an interim permit.

Question #14:  What is the VisaScreen certificate?

Carl Shusterman:  The VisaScreen is a certification by the ICHP that the nurse is proficient in written and spoken English, that her license and educational certificates are authentic and that her competency is equivalent to that of a nurse who was born and trained in the US.

Although nurses who received their education in English in the US, Canada, Great Britain, Ireland, New Zealand, Australia, or South Africa are exempt from the English requirement, no foreign-born nurses are exempt from the credentialing requirements, even if they were educated in the United States.

In other words, the law requires foreign born US-educated nurses to pay a private organization $325 to assure the government that their US education is equivalent to a US education!!!!!

Question #15: I am in US now on H-4. Where and how to obtain VisaScreen certificate and is this certificate enough for applying for permanent residence?    

Carl Shusterman:  The VisaScreen application may be obtained from the International Commission on Health Care Professions (ICHP). We link with ICHP at:

http://shusterman.com/toc-rn.html

Click on ICHP's Visa Screen, then click on "How to Contact Us" and you will find that you can request a VisaScreen application on line. :)

Although the VisaScreen certificate is required to obtain permanent residence for an RN, it takes several months to obtain such a certificate. If you have passed either the CGFNS examination, or the NCLEX, my advice is to have your employer or potential employer submit a visa petition on your behalf immediately, and then to apply for a VisaScreen certificate.

Jennifer Wipf:  We have time for one last question:

Question #16:  I thought Sec 343 says that nurses must have a full unencumbered license to enter with an immigrant visa. If the NCLEX hasn't been taken before entering the US for employment, how can an interim permit to practice be considered fully unencumbered?

Carl Shusterman: Section 343 requires that the RN have a visa screen certificate before becoming a permanent resident of the United States, not that she has passed the NCLEX as a condition of entering the United States. Since the NCLEX examination is not given abroad, such a policy would prevent US Health Care providers from hiring nurses from abroad. For a list of over a dozen articles dealing with section 343 and its proper interpretation, see:

http://shusterman.com/toc-rn.html

and scroll down to "Health Care Workers: continuing impact of the 1996 law."

Jennifer Wipf:  OK, unfortunately we have run overtime and Mr. Shusterman needs to leave. As always, we are delighted you came Carl, and it's been a huge help for the nurses who joined us tonight.

Carl Shusterman: Thank you Jennifer, for inviting me. I am so used to fielding nurse questions from immigration attorneys, across the US, that this chat has been a lot of fun for me. Now that the AFL-CIO has called for a general amnesty for illegal immigrants, and an end to employer sanctions, and a repeal of most of the 1996 law, I look forward to our March 6th chat on amnesty.

Perhaps this will be of assistance to the persons with LULAC cards who asked questions during this chat.

Good night. :)

Jennifer Wipf:  Good night, Carl :)

click here for a quick & easy FAQ style recap

Remember to follow-up with these popular and informative articles:

Registered Nurses and Other Health Care Workers compiled by Carl Shusterman, Esq.

Immigration Advocacy compiled by your immigration guides at Born Abroad

Daily Immigration Headlines at Born Abroad

and  Nursing at Born Abroad, the most comprehensive web site on nursing.                                                                           

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