Leading immigration attorney Carl Shusterman
recently hosted a chat on our site on:
The
New H-1C Nurse Regulations: Attestations and Visas
Jennifer Wipf: Welcome
to our chat on the new regulations for nurses, with guest expert Carl Shusterman. Please
wait until your Guide and moderator to Immigration Issues at Born Abroad asks for questions.
That's me! Only I will be able to see your questions once moderation is turned on. I will
be reading your questions to Mr. Shusterman, who will then answer them. I have Mr.
Shusterman on the phone now. Good evening Carl!
Carl Shusterman: Good
evening everyone. I'm looking forward to your questions. Let's get started.
Question #1: Which
kinds of hospitals or offices are allowed to sponsor for an H-1C?
Carl Shusterman: There
are a number of requirements that a hospital must fulfill in order to sponsor H-1C nurses.
1) The hospital must be located in a Health Professional Shortage Area as of March 30th,
1997 see:
Question # 2:
Are there new fees for attestations?
Carl Shusterman: Yes, the
fee is $250 per attestation.
Question # 3: Who determines what nurses are
eligible for H-1C? Is there an agency to review all the credentials from other countries?
Carl Shusterman: Yes.
The agency is the Commission on Graduates of Foreign Nursing Schools (CGFNS),
although the interim regulation allows for other organizations to designate in the future.
Question # 4: How long is an H-1C good for?
Carl Shusterman: For up to 3
years.
Jennifer Wipf:
Here's a popular question here tonight:
Question # 5: Is there any problem
transferring from an H-1C to Permanent Residence?
Carl Shusterman: The initial
visa can be extended after the 3 year period, however, since the law is in effect for 4
years, and hospitals may petition for H-1C nurses each year, it would certainly be
possible for a hospital to petition for a second 3-year H-1C visa, for a nurse.
For most nurses there is no problem in applying for a permanent visa petition and
adjustment of status within the initial 3 year period. At present, only nurses born in
India are subject to a country quota which exceeds 3 years. In general, I would urge
hospitals with H-1C nurses to submit petitions for permanent residence for these nurses
early in their tenure.
Question # 6: Can a nurse who has been
denied of Green Card can he work again as an H-1C in another hospital? and start all over
again in processing of Green Card in the new hospital?
Carl Shusterman: That
depends on why s/he was denied a green card.
Question # 7: How does a hospital qualify
for H-1Cs? What is the procedure?
Carl Shusterman: A hospital
must submit a properly completed and signed attestation form (ETA-9081) to the employment
training administration of the US Dept. of Labor accompanied by documentation
demonstrating that it complied with each of the attestation elements in addition to the
requirements cited in the answer to the first question of this chat, all of which are
included in the first element of the attestation. A hospital must also satisfy an
additional seven elements. For a section by section summary of these elements and of the
rest of the law, See:
In the early 90's a similar law entitled The Immigration Nursing Relief Act (INRA)
required health care providers to submit attestations in order to petition H-1A nurses.
Our law firm submitted several hundred attestations for hospitals, all of which were
approved by the Dept. of Labor.
It may be useful to read the documents that I prepared for The Hospital Counsel of
Southern California, called "How to Document the Nurse Attestation Form." I have
posted this document on line at:
(in order to view a file in PDF format, it is necessary to have Adobe Acrobat Reader on
your computer. If you wish to download the Adobe Acrobat Reader, for free, go to: http://shusterman.com/toc-forms.html )
Question # 8: How much chance is there of
obtaining an H-1C, since they are so limited?
Carl Shusterman: From the
hospital standpoint, Supplemental Information to the interim regulations estimates that
there are only 14 hospitals in the United States that are qualified to submit
attestations. A list of these hospitals appears on line at:
However, the government recognizes "that there may be other hospitals which may be
"... eligible to participate in the H-1C program." From a nurse's standpoint, it
is important to Jennifer Leavitt-Wipf to be petitioned as an H-1C nurse by one of these 14 hospitals
Although 500 nurses a year is a ridiculously small number of nurses when one considers the
many thousands of vacancies for registered nurses all across the United States (see:
http://shusterman.com/toc-rn.html
and scroll down to "National Shortage of Nurses.), it is clear to me
after studying these regulations in detail, that during the first 9 months after the
regulations go into effect, far fewer than 500 nurses will be available. This is because
the law limits each state to either 50 or 25 nurses annually.
The states with the largest populations are limited to 50 nurses yearly while the other
states are limited to 25. One half of the 14 hospitals listed by the Labor Dept. are in 2
states: Texas (5 hospitals) and California (2 hospitals). Since Texas and California are
limited to 100 H-1C nurses annually, these 7 hospitals will be forced to compete against
each other to be the first to obtain an approved attestation and to petition for 50 H-1C
nurses. It is entirely possible that one hospital in Texas and another one in California
could monopolize all 50 nurses allocated to each state. If you are a hospital, whose
attestation is not already completed, and you are located in California or Texas, you will
not be petitioning for H-1C nurses any time soon.
However, the law does give you a second chance. During the last quarter of the
government's fiscal year, which begins on July 1, 2001, unused H-1C numbers will be
allocated irrespective of per-state quotas.
Question # 9: Can you change from another
non-immigrant status to an H-1C?
Carl Shusterman: Yes
Question # 10: How long will the DOL
approximately take to approve attestation for hospitals?
Carl Shusterman: The interim
regulations limit the employment training administration of DOL to 30 days in approving or
denying an attestation. However, any "interested party" may challenge the --
granting of an attestation, including an unscrupulous competitor of the hospital, which
has yet to complete their attestation. I sincerely hope that such challenges do not come
to pass, but the interim regulations seem to invite such abuses.
Jennifer Wipf: This is an important one to many of you:
Question # 11: Would you recommend applying for an H-1C and also Green
card at the same time since it doesn't look very hopeful?
Carl Shusterman: Yes.
Question # 12: Does a nurse have to have a
Bachelor's degree in Nursing to qualify?
Carl Shusterman: No, but in
order for a nurse to qualify for H-1C status, she must:
1) Have obtained a full and unrestricted license to practice professional nursing in the
country where she received her nursing education (unless he obtained her nursing education
in the US);
2) Have passed the CGFNS examination or have a full and unrestricted license in the state
of intended employment; and
3) Be 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
unemployment to engage in the practice of professional nursing, as an RN immediately upon
admission to the US and is authorized under such laws to be employed by the facility.
Question # 13: My nursing position is not
working out. If I get another offer, can I transfer for a new position somewhere?
Carl Shusterman: The answer
to your question depends on your current immigration status in the United States. We
represent scores of employers who petition for permanent residence for registered nurses.
Once a nurse has applied for Adjustment of Status, based upon an approved visa petition,
s/he may apply for an Employment Authorization Document or "work card," which
allows her to work for any employer. However, if the nurse hopes to obtain permanent
residence, she must work for an employer for whom she has, or will have, an approved visa
petition by the INS. Since it takes between 2 and 3 years to be granted adjustment of
status, and anywhere from one to nine months to obtain the approval of an immigrant visa
petition, it is possible for a nurse who was originally petitioned by Hospital A, and who
has an EAD, to change employers and have a new visa petition approved by Hospital B, which
she can use for the purpose of obtaining permanent residence.
Question # 14: My position is being cut back
from full-time nurse to part-time. What will happen to my visa? Again, that depends on
what type of visa you possess. Be forewarned, however, that in order to become a permanent
resident of the US through employment your job must be full-time. If Hospital A insists on
a part-time basis only, it may be time for you to seek employment and be petitioned on a
full-time basis by Hospital B.
Jennifer Wipf: Mr.
Shusterman's time with us is up everyone. Afterwards, I will be happy to turn off
moderation so you can speak freely amongst yourselves. But first, Carl has a few more
words.
Carl Shusterman: Please
remember that the deadline for comments on the Labor Dept. attestation and H-1C
regulations (See: http://shusterman.com/h1cregs.html
) is this Thursday, September 21st, as Chairman of the Health Professionals Committee of
the American Immigration Lawyers Association (AILA).
I drafted AILA's comments to these regulations last weekend. I will post AILA's comments
on line before e-mailing the October issue of Shusterman's immigration update to
subscribers. I urge hospitals and nurses alike to carefully read these regulations and
make sure that DOL receives your comments before September 21st. The legislation to raise
the H-1B cap is expected to be voted upon this week and by the House of Representatives
shortly thereafter.
We anticipate that our next chat will be about the new H-1B legislation. Stay tuned!
Jennifer Wipf: We all look
forward to that one! Thank you Carl! Good night.
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