As published in the July 2008 Newsletter

By Thomas J. Joy, Esq.

The following comments have recently been heard from healthcare facilities and staffing agencies:

"We have put our nurse recruitment program and all immigration filings for nurses on hold until retrogression lifts."

"We can't do anything to get the nurses into the United States until retrogression lifts."

"We just don't want to spend money recruiting nurses and filing their immigration cases until retrogression lifts and we can see some results."

With the current unavailability of the EB-3 immigrant visa quota for nurses through September 30, 2008 and with an expected quota cutoff date of 2006 to be re-established at the start of the next fiscal year on October 1st, these comments are certainly understandable. However, these comments are the result of certain misconceptions and are counterproductive.

Retrogression affects only the ability of the nurse to complete the second step of the immigration process, i.e., the interview at the US embassy or consulate and arrival into the US.

Recruiting of nurses should continue and the first step of filing the Schedule A I-140 immigrant visa petition can and should be done as soon as the nurse has been recruited and a job offer has been accepted. This first step in the immigration legal process is NOT affected by retrogression.

By doing so as soon as possible, a place in the immigrant visa quota waiting line is established (priority date). This will place the employer and the nurse ahead of the competition and give them a running start for when retrogression finally lifts.

We remain confident that retrogression will eventually lift. Our confidence is based on several reasons. First, a healthcare system can not operate effectively without an appropriate number of nurses. Historically, the government has periodically addressed the shortage of nurses in the past, most recently with the recapture of 50,000 immigrant visas in 2005. Finally, as we have commented for the past several months, there is pending legislation that addresses the nurse shortage and the unreasonably long immigrant visa waiting times.

The consequences of not continuing to file Schedule A immigrant visa cases during retrogression are counterproductive and not in the best interest of the employer or the nurse. When retrogression lifts, the employer and the nurse will be further behind the competition. Huge backlogs of already approved immigrant visa petitions have been forming during retrogression as most employers continue to recruit foreign nurses and file the first step in the immigration legal process. Even after retrogression lifts, it will take a substantial period of time for the government to clear the backlog that is increasing daily. In addition, by waiting to recruit and file, the employer opens itself up to the risks of more restrictive laws being enacted, government fees increasing and processing times increasing.

There are some temporary solutions that can be pursued and implemented while waiting for retrogression to lift, as we have discussed in previous articles. Canadian and Mexican citizen nurses can obtain TNs under NAFTA in order to enter and work in the US sooner. Other occupations eligible for TN classification are: Physicians, Pharmacists, Physical Therapists, Occupational Therapists, Medical Lab Techs. A proposed regulation, if enacted, will increase the initial entry and extension periods from 1 to 3 years for TNs.

H-1B visas may be available in certain very limited circumstances where the employer is exempt from the H-1B quota, i.e., advanced practice nurses, positions involving very complex job duties and teaching and managerial nurses. Finally, E-3 visas may be available to Australian citizen nurses under the same criteria as H-1B visas but without the current quota problem.

In summary, it is strongly advised that healthcare facilities and staffing agencies continue to recruit nurses and file Schedule A immigrant visa petitions during retrogression in order to best position themselves and the nurses they hire for when retrogression lifts. In addition, consider taking advantage of the temporary solutions suggested above.

Immigration Solutions is readily available to step in and handle your casework no matter where you are in the process. Please do not hesitate to call us to discuss your specific needs or concerns. We are fully capable of designing a personalized, solution-based immigration program to suit your specific needs - right now.