FILIPINO NURSES’ GUIDE TO U.S. IMMIGRATION
By REUBEN S. SEGURITAN
January 03, 2008
A. Nursing Shortage in the U.S.
- There are 126,000 RN vacancies in hospitals and 13,900 RN vacancies in nursing homes, according to recent studies by the American Hospital Association.
- More than 30 states are estimated to have RN shortages now and this will intensify over the next 12 years hitting all 50 states in 2020.
- The US Department of Labor projects 1.2 million new and replacement nurses will be needed by 2014, and it has identified RN as the top occupation in terms of job growth through 2012.
B. Immigrant Visa
I. The immigrant visa process for RNs starts with the I-140 petition.
- RNs are in Schedule A shortage occupation so they are exempted from labor certification.
- The I-140 may be filed even if there is visa retrogression.
- The following steps must be taken prior to filing:
- Obtain a prevailing wage from the State Workforce Agency (SWA)
- Post job notice for 10 business days or notify union.
- The I-140 must be filed between 30 and 180 days from the posting or from the union notification.
- The following documents must be attached:
- Form 9089
- CGFNS certificate or US license or proof of passing the NCLEX
- Prevailing wage determination
- Job Posting or Union notice
- Philippine credentials such as nursing diploma, transcript, license
- Proof of petitioner’s ability to pay such as tax returns
II. If RN is outside the US, USCIS sends approval to
National Visa Center (NVC) to start consular processing
- NVC takes the following steps:
- Collect visa fee
- Obtain DS 230 of RN
- Obtain final documents from RN such as original birth certificate, marriage certificate, police/NBI clearance and copy of passport
- Forward case to US embassy
- US embassy will schedule interview if visa number is currently available.
- Visa screen certificate, medical report and updated offer of employment required
- If visa screen certificate not submitted within a year from interview, application may be terminated.
III. Green Card application will be put on hold if visa numbers are not available.
- Visa numbers are available when the visa allocation in a given month exceeds or is equal to the number of applicants.
- Monthly visa allocations are determined by dividing the yearly allocation by 12.
- Worldwide yearly allocation for all employment visas is 140,000 and the Philippines is allotted 7% or 9,800. Unused family visas from previous year is added.
- Philippine Third preference which covers RNs gets 28.6% or 2,803 yearly, 234 monthly.
- Philippine allotment is increased if other countries do not use up their allocation.
- The number of documentarily qualified applicants each month is reported by visa processing posts and this will be compared with the allotment for the next month.
- If the visa allotment is sufficient to satisfy all applicants for that month, the category is current.
- If not sufficient, a cut-off date is set, and only those with priority dates earlier than the cut-off date will be issued visas.
- Priority date refers to the date the I-140 is filed.
- Retrogression occurs when the cut-off date moves backward or becomes completely unavailable due to exceedingly high demand.
- Cut-off dates or retrogressions are eliminated if more visa numbers are added to the visa pool.
- The AC21 Act of 2000 recaptured 130,107 unused visa numbers in 1999 and 2000 increasing visa pool and this eliminated the retrogression that occurred prior to July 2001. This is why the Philippines got more than the 9,800 usual yearly allotment after 2000. For instance, it got 15,497 employment visas in 2004 and 23,733 in 2006.
IV. Bills have recently been introduced to increase visa numbers for nurses.
- The Comprehensive Immigration Reform Act of 2006 which sought to exempt RNs from visa quota through 09/30/2017 was passed in the Senate but failed to become a law.
- The Rural Nursing Promotion Act (S.640) which exempts nurses from the quota through 09/30/2017 was introduced by Senator Norm Coleman on 02/15/2007and is still in the Judiciary Committee.
- Senator Hutchison proposed last March to recapture 61,000 unused numbers and this was amended by Senator Durbin to include a fee of $1,500 per nurse but failed to pass.
- Senator Schumer reintroduced last August the Hutchison-Durbin proposal but also failed.
- In October 2007, they reintroduced the proposal and the Senate passed it but the House did not approve it.
I. RNs do not qualify for H-1B visa unless:
- The position requires and the nurse has obtained advanced practice certification such as clinical nurse specialists, nurse practitioners, certified registered nurse anesthetist and certified nurse-midwife.The position requires higher degree of knowledge or skill than a typical RN such as critical care and peri-operative nurse specialists.
II. RNs are eligible for H-1C but the requirements are restrictive.
- The nurse must work in a health professional shortage area.
- Petitioner hospital must obtain a labor attestation.
- Only 14 are known to have been approved:
5 in Texas, 2 in California, 1 each in New Jersey (Elizabeth General), Georgia, Missouri, Maryland (Mercy Medical), New York (Peninsula Hospital), North Carolina (Southwestern Regional) and Illinois.
- Only 500 visas are given each year.
- 29 were issued in 2001; 111 in 2002; 48 in 2003; 70 in 2004; 31 in 2005; and 24 in 2006.
- Only 4 were issued to Filipino nurses in 2006.
- The program was implemented from September 21, 2000 to June 15, 2005 and reauthorized from December 20, 2006 to December 20, 2009.
D. Questionable Practices and Remedies
I. Some recruiters and employers have engaged in fraudulent and other questionable activities such as:
- Charging exorbitant placement fees
- Failing to provide agreed-upon recruitment incentives (airfare, free test reviews and RN license exam registration; assistance in securing SS and driver’s license, sign-in bonuses)
- Misrepresenting employment terms (rate of pay; work hours)
- Holding on to RN’s passports
- Reporting RNs to US immigration authorities when they leave the employer before contract expiration
Fraud occurs because:
- Distance makes it hard and expensive to verify information
- Wage differential exists between sending and receiving countries for the same occupation ; and
- Little skill and minimal capital needed to engage in recruitment business.
Recruitment practices are seldom monitored against fraud or unethical abuses such as charging exorbitant fees, substandard pay and confiscating nurse’s passports, according to Deborah Burger of the California Nurses’ Association.
II. Breach of Contract
- An RN breaches her contract by:
- Refusal to be deployed or moving to another employer during the contract period, after having received recruitment incentives
- A recruiter or employer commits breach by:
- Failing to comply with employment terms such as transportation costs; accommodations upon arrival; rate of pay; whether permanent or temporary employment; whether part-time or full-time; where the RN will be deployed, etc.
- An RN may protect herself/himself by:
- Insisting that a recruiter must have an actual address, not just a P.O. Box
- Checking the POEA license of recruiter/employer and dealing with the authorized representative only
- Paying the placement fee after contract signing and getting a receipt
- Examining and reviewing contract before signing
- Clarifying immigration matters
- Remedies are available in cases of breach:
- A recruiter or employer may:
- Sue the nurse in the Philippines for breach of contract. Enforcement of judgment by Philippine courts may be easier if the nurse is still in the Philippines.
- Sue for breach of contract as exemplified by the suit of Integral Care Providers, Inc. against 7 RNs filed in April 2004 in Kansas City.
- Enforcement of judgment may be difficult if the RN is already in the US, but cannot be located.
- In extreme cases as in the Sentosa case, the employer may file criminal charges against the nurse for abandoning patients abruptly, endangering the health and safety of the patients.
- File an administrative complaint against the employer’s local agent with the Philippine Overseas Employment Administration (POEA) (See Asian Placement Services, Inc. v. CA, G.R. No. 146249, February 4, 2002)
- Under Philippine law, the local agent in the Philippines assumes solidary liability with the foreign employer for all claims and liabilities arising from the overseas employment. This provision is required to be incorporated in the employment contract and is a condition for its approval.
- If dismissed without valid reason before contract term ended, sue employer and its local agent in the Philippines before the Migrant Worker’s Desk of the National Labor Relations Commission (NLRC) or the NLRC’s Regional Arbitration Branch.
- If not deployed, without RN’s fault, withdraw application from agency and claim reimburse-ment of placement fee, documentation and processing expenses with the help of POEA’s Legal Assistance Division.
- If terms of the employment contract are not satisfied, sue the employer in the US either for fraud, misrepresentation or breach of contract, or discrimination, depending on the circumstances of the case.
- A Missouri nursing home paid $2.1 million to settle a discrimination complaint by 65 Filipino RNs before the Equal Employment Opportunity Commission, according to a March 1999 Washington Post report.
- >A Texas nursing home operator and 4 nursing recruiters in California and New Jersey pleaded guilty in 1998 to participating in schemes to bring hundred of Filipino nurses who were paid $5 per hour and sent to healthcare facilities in 35 states
- A retirement community near Chicago paid more then $176,000 in back wages in civil penalties in 1997 for paying Filipino nurses only 8% of the prevailing wage.
- The Catholic Archdiocese of Chicago agreed to pay $50,000 in fines and more than $384,000 in back wages to 99 Filipino nurses who were underpaid at a church-operated nursing home.
- If RN is on H-1B visa, she/he may transfer to another employer pursuant to the portability rule, or if adjustment of status application has been pending for 6 months, she may move to another job.
Law Offices of Reuben S. Seguritan
450 Seventh Avenue, Suite 1400
New York, New York, USA
Tel. No. (212) 695-5281
Fax No. (212) 563-2664
Since 1975, the Law Offices of Reuben S. Seguritan has served the immigrant community’s legal needs.
The firm has represented multinational corporations, hospitals, schools, religious organizations and small businesses as well as top Philippine and international officials, scientists, renowned artists, nurses, therapists, doctors, teachers and other professionals, war veterans, and domestic workers. It has represented over 3,000 nurses and other health professionals and over 200 hospitals.
Reuben Seguritan has been a member of the New York Bar since 1975. Prior to that, he was accepted to the LL.M. program of Harvard Law School but opted instead to work for two large New York firms – Townley Updike Carter & Rodgers, a corporate litigation firm, and Jackson Lewis Schnitzler & Krupman which specializes in labor law. He was admitted to practice before the United States Supreme Court in 1978.
He currently serves as the general counsel of the biggest Filipino associations in the U.S. such as the NaFFAA, APPA, PMAA and PNA-NY. He was counsel for a national nursing alliance that won an agreement in the late seventies from the Immigration and Naturalization Service not to deport hundreds of nurses whose visas had expired.
He has written numerous articles published in law journals and in Filipino newspapers in the U.S. dealing with discrimination and immigration issues. He was formerly editor of the Common Law Lawyer, and has published a book on immigrant experiences, “We Didn’t Pass Through the Golden Door.”
He has served as President/Founder/Director of many Filipino American and Asian American associations. Sought for his firm grasp of immigration issues and deep understanding of the plight of immigrants in the U.S., he has spoken in international and national conferences and seminars before association of nurses, doctors, physical therapists, teachers, domestic workers and other immigrant groups.
He has received many professional awards such as the Who’s Who in American Law, Exemplary Achievement in Immigration Law and UPAAA’s Most Outstanding Alumni in Law. He has also received international and national awards for his immigrant advocacy such as the Banaag Award from President Fidel V. Ramos, the CFO Award under President Corazon Aquino and Outstanding Young Man of America.
Seguritan graduated from the University of the Philippines, where he was a student leader and an editor of the Philippine Law Journal and the Philippine Law Register. He was an entrance and college scholar and a member of the honor society (Order of the Purple Feather). Before coming to the U.S., he taught business law and international politics in a state university, edited law books and was the chief counsel of a major labor federation.
Seguritan has been a member of the American Immigration Lawyers Association since 1975.