Immigration strategies for hiring staff: congress hasn't been particularly helpful of late, but there remain a few strategies to consider. (Feature Article).

Nursing homes, like hospitals and other healthcare institutions, are facing a true crisis in terms of attracting and retaining qualified healthcare professionals. When this situation has arisen in the past (including as long ago as the late 1800s with railroad employees and as recently as the late 1990s with technology workers), Congress (and our country as a whole) has often looked outside of the United States to supplement the workforce with foreign nationals. Thus, one would think that when faced with this same scenario today in healthcare, our legislators would turn to these resources again. Such is not the case.

Immediately prior to the horrific incidents of September 11,2001, legislation was introduced in both the Senate and the House that would have allowed all healthcare providers to use our immigration system to recruit employees. Specifically, a provision entitled the "Rural and Urban Health Care Act of 2001" was introduced in both chambers (S 1259/ HR 2705) that would have allowed 195,000 foreign-born nurses to obtain H-1C nonimmigrant visas to work for healthcare institutions in the United States. Very importantly, this legislation made it clear that, before being issued such visas, the foreign nurses had to possess the appropriate academic training/background and secure the necessary licensure. This legislation was, of course, eagerly anticipated by all healthcare providers.

Unfortunately, and like many other progressive" immigration-related provisions, the expansion of the H-1C category was taken off the table shortly after September 11. Since that time, and despite attempts by (among others) lobbyists for the healthcare industry, both pieces of legislation remain dormant. As a result, all that we are left with is the former version of the H-1C visa that, in reality, is of little (or no) help at all. More specifically, under the current legislation, only 500 such visas are available each year. Moreover, only those healthcare providers who are located in "medically underserved areas" are eligible to use one of the coveted 500 visas. These and other similar restrictions have, in essence, made the H-1C category virtually useless for most, if not all, healthcare providers.

So what is our alternative? First and foremost, we need to urge our representatives in Congress to get the stalled H-1C legislation "dusted off" and moving forward. There are other very important hurdles that need to be addressed, as well. First and foremost is the overall anti-immigration sentiment arising from the events of September 11. Added to that, quite properly, are increased security-related concerns about people (from all fields) who obtain visas and enter the United States. That being said, and consistent with recently introduced procedures used by the Bureau of Citizenship and Immigration Services (BCIS), formerly the Immigration and Naturalization Service, and the various consulates around the world, additional security measures are being taken to reduce the risk of "undesirables" obtaining visas. Additional "visa screens" have been put in place as well to ensure such protection.

What happens, though, if the H-1C legislation is never adopted or implemented or, if it is, takes (as may well be the case) at least a year to go into effect? The remaining strategies available to healthcare providers would be to consider another nonimmigrant (temporary) visa category or, perhaps better, pursue permanent residence status (green cards) on behalf of foreign national employees.

Beginning with the temporary visa options, not many are even feasible. The best option is for healthcare providers to find either Canadian or Mexican nurses (and other selected healthcare professionals) who qualify for TN-nonimmigrant status under the provisions of the North American Free Trade Agreement (NAFTA). Job classifications that would support this type of application (and are found in nursing homes) include registered nurses, nutritionists, pharmacists, and physical, occupational, and recreational therapists. Canadian citizens truly get the benefit of this provision in that application for this visa status is made directly at the port of entry. In other words, the somewhat time-consuming process of filing an initial visa petition with the BCIS is avoided. Mexican citizens, on the other hand, are required to file a petition with the BCIS and, approximately three months later, can secure their TN status. In either event, TN status is valid for a period of one year and can generally be extended indefini tely in one-year increments.

If the TN category is not available, other temporary visa options must be considered. First, if a foreign national is pursuing a degree at a college or university in the United States and holds F-1 (student) status, he or she is entitled to one year of "postcompletion of studies" practical training. This allows a foreign national graduate to receive a full year of employment authorization, allowing him or her to work for any employer in his or her field in the United States. However, after the one-year postcompletion status expires, another temporary visa must be secured for the person to be able to remain in the United States.

Another option is the L-1 intracompany transferee visa. As the name reflects, this visa is available to foreign nationals who have worked for a related company/entity in a foreign country (for at least one year) in an executive, managerial, or "specialized knowledge" capacity and are transferring to fill a similar position with a U.S. employer. In the nursing home context, this would potentially apply if the employer was a multinational organization and the individual in question was a management-level employee. This visa is valid for three years, initially, and can be extended for either two years (for "specialized knowledge" personnel) or four years (for executives or managers).

The final nonimmigrant option is the H-1B visa. This particular visa appears to be very attractive, particularly for foreign nurses. Unfortunately, however, this is not the case. Specifically, in order to qualify for an H-1B visa, the foreign national must possess the equivalent of a bachelor's degree in a directly relevant academic discipline and must be filling a position that requires such a degree. Thus, even if the foreign national himself/herself possesses this degree, H-1B visas typically are not granted to foreign nurses since, according to the BCIS, a bachelor's degree is not a minimum job requirement. While there have been some recent announcements from the BCIS indicating that this might be modified, the H-1B visa is still not a good option for foreign nurses. It is, however, available to other "professionals" working in nursing homes (including, for example, pharmacists and nutritionists) who are able to satisfy these criteria. For these individuals, the visa is valid for a period of up to six yea rs.

Unless, therefore, the foreign national applicant is a Canadian or Mexican citizen and can fall under one of the enumerated TN/NAFTA job categories, there really are no particularly good nonimmigrant (temporary) visa options available. The better option, as many employers have elected, is to pursue a permanent (immigrant) visa on the foreign national's behalf. While, as a general rule, this process takes at least 18 months to complete, it is frankly better to have to wait for a permanent visa than to unsuccessfully attempt to obtain temporary visa status. Moreover, as the name reflects, immigrant visas are permanent, allowing the holder to remain in the country indefinitely. Also quite important to the foreign national employee is the fact that once he or she obtains permanent residence status, so do his or her spouse and children under 21.

Obtaining permanent residence status in the United States (based on employment) is a three-step process. First, the employer is required to file an application for alien employment certification with the Department of Labor. The employer must prove that by hiring the foreign national, it is not taking a job away from a qualified and interested U.S. worker applicant. To do so, the employer must complete a 30-day recruitment campaign that includes placement of an advertisement in a newspaper/journal, posting the position internally, and placing an ad at the local job center. This process can take from six months to three years to complete.

There are, however, some cases where the employer can avoid labor certification altogether. One such situation involves an employer seeking registered nurses, whom the Department of Labor has concluded are working in a "shortage occupation," i.e., one where there is a predetermined insufficient supply of "qualified and interested" U.S. worker applicants. As a result, nursing home employers seeking nurses can bypass the entire first step and, in so doing, save a significant amount of time.

The next step (and, for nurses, the first step) is the filing of an immigrant (permanent) visa petition with the BCIS. These particular petitions are filed under one of several categories including, for example, for positions requiring bachelor's degrees and those requiring two years of experience/training. Importantly, for registered nurse positions, these petitions can only be filed if the nurse has satisfied both credentialing and licensure requirements enumerated under the law. For this reason, employers have to plan ahead and be certain that these particular requirements are satisfied as early as possible in the recruitment process. Immigrant visa petitions are typically processed in six to nine months.

Once these petitions are approved, the foreign national/applicant can proceed to complete the permanent residence process, and actually obtain his or her green card, through either "adjustment of status" or "consular processing." Adjustment of status is completed while the foreign national is physically present in the United States in another (temporary) visa status. Consular processing, on the other hand, is completed through the applicable United States Consulate or Embassy outside of the United States. While both routes are possible, consular processing is faster and, particularly for healthcare providers who have such an intense demand for these employees, is typically the better option.

Clearly, there are no quick fixes currently available under our immigration laws that adequately address the acute employment shortage faced by our nation's nursing homes. There are, however, some options available that, with proper planning and counsel, can be successful in helping alleviate this problem.

Lawrence M. Lebowitz, Esq., an attorney with Cohen & Grigsby, PC, based in Pittsburgh, chairs the firm's Immigration Group, serves as Adjunct Professor of Immigration Law at the University of Pittsburgh School of Law, and is Listed in Best Lawyers in America for immigration Law. For further information, phone [phone], e-mail [e-mail], or visit www.cohenlaw.com.

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