Retrogression and Visa OPtion for Registered Nurses

Susan V. Perez's Immigration Legal Blogs

Licensed for 23 years

Attorney in San Diego, CA

More than three (3) years since the Registered Nurse (RN) visa numbers had dried up, the US Government has not addressed the lack of visas for RN.  This is despite the fact that the U.S. has a shortage of foreign trained and educated RNs.  In 2003 there was a shortage of approximately 168,000 RNs. A study made by the Bureau of Labor Statistics (BLS) states that the United States will require 1.2 million new Registered Nurses by 2014 to meet the nursing needs of the country; 500,000 to replace those retiring and an additional 700,000 to meet the growing demands for nursing services.  Before discussing the visa options for RNs, it is good to know why currently there are no immigrant visas available to them.  Retrogression is the term used by the US Government to describe when more people apply in a certain category than there are visas available.  The U.S. Department of State (DOS) establishes the cut-off date, which is the priority date of the first applicant who could not be issued a visa within the numerical limits.  Visa numbers are available only to those applicants with priority dates before the cut-off date.  Although many nurses may now be unable to meet the rigid requirements for professionals under the present third preference for lack of a university degree, nurses should nevertheless qualify in the third preference as “skilled workers.”   In December 2004, DOS determined that the EB-3 category applicants (skilled and professional workers) from mainland China, India, and Philippines exceeded the per-country numerical limits in that category.  For this reason, DOS set the cut-off date for this category for these countries at January 1, 2002.  This means they may not apply for or receive their green cards through adjustment of status or through consular processing unless their priority date is before January 1, 2002.  In May 2005, President Bush signed a Bill that included an amendment to recapture 50,000 unused immigrant visas to be used for Schedule A occupations, which include RNs and Physical Therapists.  By the end of the first week of August 2005, the US Consulates in the Philippines and India were once again issuing visas to nurses.  By November 2006, the 50,000 visas were gone and immigration went into retrogression again stating priority dates of 2001.  In July 2007, there were no cut-off dates for the EB-3 category for all countries.  Nurses who were able to properly file their adjustment of status by July 31, 2007, were allowed to stay and work.  In June 2008, the cut-off date worldwide was March 2006.  In October 2009, the cut-off date for all countries, except India, China and Mexico was June 1, 2002.  As of March 2010, the cut-off date for EB-3 for Philippines is December 2002.           

            Because of the current retrogression, a lot of RNs are stuck in their home countries waiting for a visa number while those who are in the United States are looking for options how to stay in the country legally.  RNs usually come to the United States on a visitor or B-2 visa.  As such, they are allowed to stay no more than six months with a chance to extend their status for another six months.  If they stay in the United States beyond the date of their authorized stay as stated in their I-94, they become deportable.  In addition, they cannot change into a non-immigrant status or employment-based immigrant status.  To remain in status, an RN can enroll in a master’s degree program or in any advanced course that will improve their credentials and obtain F-1 or student visa.  This will allow them to stay in the U.S. for as long as they are enrolled in the program or course.  They can work part-time while studying and can apply for optional practical training (OPT) after graduation.  If visa numbers are still not available by the time of they finish the course, H-1B is an option.  Strictly, RNs are not eligible for H-1B unless the position offered requires something more than just performing the duties of a staff nurse such as nurse supervisors or managers, advanced practice nurses, nurse practitioners, clinical nurse specialists and other RN specialists.       

 The H-3 or trainee visa is a rarely used option available to temporary workers including nurses.  For nurses, the basic requirements are: 1) the proposed training is unavailable in the home country, 2) the training is designed to benefit the applicant in pursuing her career in the home country, 3) the nurse has passed the licensure exam in the country where she obtained his or her nursing education, and 4) a statement from the petitioning employer that the applicant is fully qualified to engage in the training.  The training program should not be longer than two years.  H-3 visa holders are given social security numbers and will be paid while undergoing the training.  The limitation of this visa is the alien cannot change to H or L status granted after two years unless he or she is physically present outside the United States for six months.

The H1C visa is for RNs who wish to work in health professional shortage areas. Only 500 H1C visas are granted annually. The visa is valid for three years and cannot be extended. In order to qualify for the H1C visa, the nurse must have a full and unrestricted license to practice professional nursing in the country where he/she obtained his/her nursing education, or have received nursing education in the US; have passed an appropriate examination (determined by the Dept. of Health and Human Services), or have a full and unrestricted license to practice as a registered nurse in the state of intended employment; and be fully qualified and eligible under the state laws and regulations of the state of intended employment to practice as a registered nurse immediately upon admission to the United States.  The Department of Labor identifies the hospitals who are eligible to participate in the H1C program.

If you have any questions, please feel welcome to email me at susan@law-usimmigration.com or call (619) 819 -8648 to arrange a telephone consultation. 

 

San Diego Immigration Attorney Website – http://law-usimmigration.com

Because of the current retrogression, a lot of RNs are stuck in their home countries waiting for a visa number while those who are in the United States are looking for options how to stay in the country legally. 

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