The immigration issue burns long-term care, too.

President George W. Bush only briefly mentioned the topic of immigration reform in his 2006 State of the Union address. He stated that "Keeping America competitive requires an immigration system that upholds our laws, reflects our values, and serves the interests of our economy ... To meet this goal, we must have stronger immigration enforcement and border protection. And we must have a rational, humane guest worker program that rejects amnesty, allows temporary jobs for people who seek them legally, and reduces smuggling and crime at the border." Within weeks of his speech, however, President Bush had made immigration reform the centerpiece of his 2006 domestic legislation and, in the process, stirred up a cauldron of controversy that had yet to subside at press time.

Interest in revisiting immigration law has, in fact, been building in Washington for nearly 20 years. The last major overhaul of immigration practice was the Immigration Act of 1990, which generally continued policies in place since the 1950s. Specifically, the Immigration Act of 1990 created three categories of legal immigrants: family-sponsored immigrants, employer-based immigrants, and "diversity" immigrants who sponsor themselves. It also set annual limits on the number of visas for permanent residence to be issued for each category:

* 226,000 visas for family-sponsored immigrants

* 140,000 visas for employment-based immigrants

* 55,000 visas for self-sponsored immigrants

The Immigration Act of 1990 also continued a "quota" system that limits immigration from any single country or geographic area. In theory, the quota system would have capped the number of immigrants from Mexico in 1991 at slightly less than 30,000--approximately one-tenth of the number of Mexican nationals who actually crossed the border that year.

[ILLUSTRATION OMITTED]

The Immigration Act of 1990 also established a bipartisan Commission on Legal Immigration Reform whose members, after deliberating, were able to reach agreement on a few technical issues, but failed to achieve accord on overall principles for a rational immigration policy. In its final report in 1997, the commission recommended development of a more effective system for verifying work authorization as the single most effective step toward reducing illegal immigration, but did not address how the basic law could be modified to match U.S. employment and family reunification needs.

In sum, the 1990 legislation is at the root of today's illegal immigration uproar. Admittedly, its visa limits were set in the midst of the worst recession in 20 years. Almost immediately afterward, however, the U.S. economy embarked on nearly a decade of unprecedented expansion and massive growth in demand for workers. With unemployment now consistently below 5%, demand for low-income, hourly workers and seasonal employees has enticed at least 11 million foreign nationals to illegally seek jobs in the United States in recent years.

The small amendments that were made to immigration law from 1991 through 2001 came nowhere near reflecting these changed circumstances. For example, under revised quotas, the "brothers and sisters of U.S. citizens" immigration category now is allotted only 65,000 visas per year, with the result being that a waiting list has built up over the years--an application filed now would be granted a visa in approximately 2016. In addition, foreign nationals applying to legally visit our country are charged an application fee that can be the equivalent of a full year's wages in some countries--and they do not receive a refund if their visa application is denied.

As many long-term care operators know, their field has been unusually hard hit by the disconnect between the demand for new workers and the very restrictive limits on legal immigration. Both nursing homes and, in particular, assisted living facilities embarked on rapid expansion during the 1990s; they needed large numbers of skilled and practical nurses at a time when fewer U.S. nationals were pursuing nursing careers. They also needed large numbers of less-skilled personnel for laundry, food service, housekeeping, and other nonclinical tasks. It is in these areas that long-term care is beating the bushes for staff.

True, long-term care has been granted some relief from the restrictions imposed on legal immigration through the H-1B program. As described in earlier columns, the H-1B program provides a special resident visa for individuals in specific professions, including skilled nursing. The H-1B program must be renewed by congressional authorization every year, and the number of nurses admitted from overseas can change unpredictably. Ironically, foreign nationals who graduate from nursing and healthcare education programs in the United States are ineligible for the H-1B visas; foreign students who learn American methods and standards of care must return to their home country before they can apply their skills in the United States.

Even this limited relief is not available for the thousands of less-skilled workers who must be recruited to keep long-term care facilities operating. This is where the issue of legal immigration is most likely to affect nursing homes, either through direct hiring of foreign-born workers or through contracts with service vendors who employ foreign-born workers. A large percentage of these workers may well be "undocumented aliens" who have crossed U.S. borders illegally. Others may be illegal immigrants who arrived in the United States with visas that allowed them to legally visit or study in the country, but who violated the conditions of their stay (for example, by remaining in the United States after graduating from a college). Illegal immigrants also include a small number of people who arrived in the United States fraudulently by providing inaccurate information to obtain legal entry.

From 1996 through 2003, fewer than five or six bills per year were introduced annually in Congress to address immigration issues. Since 2003, 30 or more "immigration reform" bills have been introduced in each congressional session. The handful of those proposals that address global immigration issues tend to further restrict legal immigration while promising draconian criminal penalties for "illegals." Congressman Thomas Tancredo (R-Colo.), for example, has offered an act entitled Reducing Immigration to a Genuinely Healthy Total (RIGHT) that would virtually eliminate legal immigration during the next several years. In contrast, legislation that would permit temporary "guest workers" and allow some illegal permanent residents to obtain green cards does not address the question of total immigration levels and how, or whether, to accommodate those numbers.

One certainty is that long-term care facilities will be forced to accept new responsibilities for checking the immigration status of their employees. Virtually all of the legislation under serious consideration (at press time, a major compromise bill that had raised hope for a global solution had fallen through) requires employers seeking to fill vacancies to check with the Department of Homeland Security before hiring a worker. Employers who fail to comply will be subject to penalties.

These changes may go far to increase the effectiveness of workplace enforcement, but they will add to delays in the hiring process, and they will not reduce the immigration logjam that prevents long-term care facilities from having access to enough legal immigrants to reduce labor shortfalls. The President and Congress may now be more attentive to the reality of illegal immigrants, but the repeated Pollyanna declarations that our country "must keep an open door" masks the hard facts that led to today's immigration problems. It appears that long-term care stands to get more paperwork than genuine relief from the answers Washington is pursuing, at least at the moment.

To send your comments to the author and editors, e-mail [e-mail].