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Edition:  þ FLORIDA   o  METRO (DC-MD-VA-NY)
US IMMIGRATION UPDATES IMMIGRATION Q AND A / MAR 2002
Immigrant Processing of Foreign Nurses
By Vanessa S. Barcelona
It has been quite some time now since we had discussed the immigration of foreign nurses in the United States. The critical need for them continues. This article will attempt to provide much needed information to assist the foreign nurse in having a clear strategy of how to successfully navigate through the process.
Foreign nurses, whether educated in the U.S. or abroad, qualify for immigrant visas without the necessity of having a labor certification application approved by the Department of Labor. A labor certification application is filed with the U.S. DOL for most employment-based petitions leading to a green card for a foreign worker. In the case of a Registered Nurse, however, the U.S. employment Service has already made a determination that there are not sufficient American workers who are interested and qualified to fill the available need for professional nursing care. Thus, for a Registered Nurse, we can go straight to the Immigrant Visa petition. There are essentially 2 steps to bringing a Registered Nurse into the U.S.: (1) the immigrant visa petition (filed with the U.S. INS regional office with jurisdiction over the Petitioner's location) and (2) consular processing, which culminates in the interview at the U.S. Consulate abroad (if the nurse is outside the U.S.) or adjustment of status, filed with the INS, if the nurse is in the United States.
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Immigrant Visa Petition: A. Forms to be filed This petition is filed on form I-140. In addition to the I-140, the following forms are filed with the regional office of the INS serving the jurisdiction of the Petitioner (the 4 regional INS offices are: Texas, Nebraska, Vermont, and California): ETA 750 A&B. These are the forms that would have been filed with the Department of Labor had a labor certification application been necessary. It is only necessary, for the registered nurse petition, to fill these forms out and submit them with the I-140. Among other documents proving professional credentials, the nurse will submit a copy of his or her CGFNS certificate or copy of RN license to practice in the State of intended employment (i.e. proof that the nurse has taken and passed the NCLEX-RN examination). If submitting the CGFNS certificate, it is important to remember that it is not sufficient that the nurse provide a copy of the CGFNS letter confirming passing scores on the CGFNS qualifying examination. While in the past, successfully passing this examination was sufficient to obtain the old CGFNS certificate, today the certificate cannot be issued until the nurse has successfully passed the CGFNS and the TOEFL exams. Note, however, that INS will accept both the old and new CGFNS certificates. B. Important Considerations: The registered nurse is required to obtain a license to practice as a registered nurse in the State where that nurse will be placed. Passing the NCLEX-RN is a requirement for state licensure. Note, however, that a state license is NOT REQUIRED as a pre-requisite for entry as an immigrant. As you will note from our discussion above, a CGFNS certificate can be submitted in lieu of the NCLEX. A nurse can enter the United States, and so long as steps were taken to apply for registration in advance, that nurse can take the NCLEX within 30 days of entry into the United States. It is important for the foreign nurse to take the necessary steps to register for state licensure well before entry into the United States. Some state licensing offices are so backlogged at this time, given the high volume of applications, that the procedure may take months and months. If the nurse waits to take care of the registration process when they enter the United States, then this will cause undue delays in obtaining a license and commencing employment full time as a licensed registered nurse. Practically speaking, from the standpoint of the employer at least, it is best to have the nurse enter the U.S. after they have already taken and passed the NCLEX. A Philippine nurse immigrating from the Philippines will have the opportunity to take the NCLEX in either Saipan or Guam. Note, however, that travel to Guam requires a U.S. visa while travel to Saipan does not. The U.S. Embassy in the Philippines will issue a visa for travel to Guam with proof of the nurse's Authority to Test, obtained after successful registration for the NCLEX exam. There have been sufficient cases of nurses arriving in the United States and having difficulty passing the NCLEX the first time. Much of this may have to do with the added pressures of being in a foreign country and starting full-time employment in a new environment while that nurse is studying for and taking such an important examination. The cases have been sufficiently numerous to be "problematic". Petitioning hospitals must keep this in mind when deciding whether or not to require the nurse to take the NCLEX prior to travel to the U.S. If the nurse is not in possession of evidence of having taken and passed the NCLEX, the contract of employment submitted at the U.S. Embassy at the time of the interview will need to address this issue. The Embassy Consuls in the Philippines will require that the contract provide for employment (in a non-professional capacity paying at least the minimum wage) until such time as the nurse can begin full time professional work as a Registered Nurse. It must be understood by the Petitioning hospital that non-requirement on their part of the NCLEX prior to U.S. arrival will entail an agreement to provide the nurse with full-time employment prior to obtaining the RN license. On the same token, nurses being petitioned must also clarify this matter early on, so that the nurse can determine whether or not budgeting will require allocating funds towards the NCLEX, an NCLEX review course, and of course, travel to a location where the NCLEX will be offered. C. Processing Time Processing time varies, depending on the INS service center handling the case. It can run from 2-8 months. INS will issue a Receipt Notice upon receipt of the petition. So long as the documents submitted are complete and the forms filled out correctly, what usually follows after the Receipt Notice is issued is the Approval Notice. Once issued, the INS is done with the file. If the nurse is outside the country, then INS will forward the file to the National Visa Center (an office of the U.S. State Department) for further processing. If on notice that the nurse is in the U.S., INS will keep the file, in anticipation of the nurse's application for adjustment of status. Consular Processing Packet 3 documents are signed by the nurse and returned for submission (either directly to the Embassy or to the NVC. Consular processing steps will differ depending on which country the nurse is located and/or will be processed. There are 10 posts designated as Alpha posts (essentially high volume posts) where in an effort to ensure that all documents have been correctly filed prior to issuance of the interview, the State Department will require that documents be submitted to the NVC for review before they are sent by the NVC to the Embassy for interview. The Philippines is one of these posts. There is a fee of $260 for the nurse and for each accompanying family member if that nurse will be processed in an Alpha post (i.e., NVC review is required). This fee is sent to the NVC together with the Packet 3 documents once they have been signed by the nurse. When processed in a non-Alpha post, there is no requirement of the $260 fee. Also, packet 3 documents are sent directly to the U.S. Embassy processing the case. NVC involvement usually adds approximately 2-4 months to the processing time prior to interview. So long as all documents are complete, if requiring an interview in the Philippines, expect an interview within 4-6 months of filing the Packet 3 with the NVC. So long as all documents are complete, expect an interview as early as 2 weeks following submission of documents to a non-Alpha post. This will of course depend on the volume of cases handled by the post at the time. Once an interview date has been sent, the nurse will receive, directly from the Embassy, the Packet 4 documents. This packet will contain the appointment for the medical examination which must be taken (and whose results must be obtained) prior to the embassy interview. The form to be submitted to the Embassy on that day will consist of the DS-230 Part II, also essentially biographic in nature.
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Adjustment of Status Processing If in the United States, the registered nurse, upon approval of the immigrant visa petition, will file the adjustment of status application. All accompanying family members (spouse and unmarried minor children) in the United States will be filing separate applications as well. The applications for employment authorization (or work permit) can be filed at this time. The work permit will be issued within 90 days of filing, thus enabling the nurse to work for the Petitioning hospital while the adjustment of status application is pending. The application will take approximately one (1) year. The Visa Screen Certificate, while not necessary to file the application, is a requirement for approval. The Visa Screen Certificate is a requirement for a nurse wishing to immigrate to the United States. VSC issuance requirements depend on the country where the nurse was educated. Aside from submitting transcripts, diplomas, professional documents at the time of registration (essential for the equivalency evaluation to be performed by ICHP, a division of CGFNS and the organization which will issue the VSC), the nurse will be required to take and pass the following exams: 1. For English language proficiency: MELAB (Michigan English Language Assessment Battery) or the TOEFL/TSE/TWE " Proof of English proficiency is not required for VSC issuance if the nurse was educated in the UK, Ireland, Canada (except Quebec), Australia, New Zealand and the U.S. 2. Nursing proficiency CGFNS or NCLEX Contact information for registration and inquiries regarding processing times, exam dates, etc. can be made with the following: For the TOEFL/TSE/TWE: TOEFL/ETS Services P.O. Box 6151 Princeton, NJ 08541-6151 609-771-7100 tel. 609-771-7500 fax e-mail: toefl@ets.org For the MELAB: English Language Institute Testing and Certification Division 3020 N. University Building University of Michigan Ann Arbor, MI 48109 734-764-2416 or 734-763-3452 tel. 734-763-0369 fax e-mail: melabelium@umich.edu For the Visa Screen Certificate: International Commission on Healthcare Professions (ICHP) 3600 Market St., Suite 400 Philadelphia, PA 19104 215-349-6721 tel. 215-349-0026 fax e-mail: admini@ichp.org It is important for the nurse to work on their VSC requirements while waiting for the I-140 to be adjudicated and prior to the Embassy interview until such time as the VSC is issued. If adjusting in the United States, the VSC will have to be submitted before the adjustment of status application is approved, usually following a Request for Evidence, if the document was not submitted with the original application for adjustment. Important Websites: www.toefl.org (for info on TOEFL/TSE/TWE) www.ncsbn.org (for info on the NCLEX) www.lsa.umich.edu (for MELAB) www.cgfns.org (for the Visa Screen Certificate) To each and every nurse seeking to immigrate to the United States, this is my message: Nursing continues to be a viable employment-based option. While the examinations seem daunting at first glance, there are more than enough "success stories" to provide encouragement. Hospitals and nursing homes in the United States are offering to pay for most, if not all, of the expenses involved in the recruitment process, along with other benefits not available to other professions. You are in a very good position right now, unlike many professions where industry indicators are not so positive at this time. Choose a hospital in the intended place of relocation, offering the best possible benefits obtainable. Weigh carefully the offers presented to you, and the financial obligations, if any, incurred in accepting an offer. Do your research! Take the time to inquire into the reputation of any hospital representative seeking to recruit, whether a direct employee of the hospital or a contract representative. Many hospitals have websites now. Look for their website and look at their recruitment needs, policies, and offers. This is not only your next employer, but a starting point from which your career, your future and your family's future will be determined. As you will see, there is enough of a need at this time so you can reasonably immigrate to the U.S. without incurring any financial costs at all, except maybe the additional costs of bringing in family members with you. On the same token, it is hoped that you will, upon making a commitment to a petitioning hospital or nursing home, make good on that commitment. Remember that when you agree to work for a petitioner upon entry into the U.S., or until issuance of your work permit, there is the reliance on the part of the petitioner that their nursing needs will be met in part by your employment as soon as you are able to do so. Look at all your options, take the time to decide, and when you have, accept an offer in good faith. It reflects on you, your profession, and your country. Remember that not all hospitals at this time, despite the critical need for nurses, are choosing to meet their needs by recruiting from foreign countries. Some have chosen instead to offer scholarship programs to local nursing schools. Those who choose to recruit have done so in large part because of the good experiences they have had with the Filipino nurses already in their employ. Do not forget this. And in the coming months, as you study for your examinations and may from time to time experience some setbacks, just remember that this is all a part of what life is about in America. Success does not come overnight, but it comes. You will work hard. And you, and your children, will benefit from your hard work.
VANESSA BARCELONA is a partner with the law offices of Barcelona & Pilarski, P.A. She obtained her law degree from the University of Florida. She is a member of the American Immigration Lawyers Association, the American Bar Association, and the Florida Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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