As hospitals and medical centers continue to face enormous challenges in staffing, employers are looking for alternatives to meet these seemingly unfillable positions. The high demand for foreign nurses has contributed to a growing backlog of cases creating significantly increased processing times. Currently, applications in the pipeline are delayed up to two years or more.
The most common type of employment-based permanent residence category is based upon obtaining a PERM Labor Certification from the Department of Labor (DOL), certifying the unavailability of U.S. workers for the offered position. However, for the “Schedule A” occupations of registered nurses and physical therapists, DOL has pre-determined there are not a sufficient number of U.S. workers in these occupations domestically, and therefore hiring a foreign national nurse or physical therapist would not displace available U.S. workers.
The Schedule A occupations allow the employer to bypass the first step in the employment-based green card process, the PERM Labor Certification application, which can take more than a year, and proceed straight to filing an I-140 immigrant visa petition to USCIS, which is a streamlined process available to those categories of employees listed on DOL’s “Schedule A.”
Professional nurses who are licensed and meet certain educational qualifications fall under Schedule A, which means an employer may file an I-140 petition (sponsoring the nurse for a green card) directly to USCIS once they have obtained a Prevailing Wage Determination from the Department of Labor. A nurse can be sponsored while on an F-1/OPT status and while working on his/her Employment Authorization Document (EAD) under the Optional Practical Training period. Employers may also recruit internationally and sponsor a nurse outside of the U.S. by filing an I-140 petition to be processed via a U.S. Consulate abroad for purposes of the nurse entering on an Immigrant Visa (Permanent Resident Visa) to begin work with the sponsoring employer.
The Process for Hiring Foreign Nurses
- Prevailing Wage Determination (PWD) – although the employer is able to skip the PERM process, they must first obtain a Prevailing Wage Determination from the DOL to proceed with a Schedule A I-140 petition. The PWDs are filed online and are currently taking 6-8 months for DOL to process due to backlogs. The PWD must be included with the I-140 petition. Employers can structure their process so that PWDs are regularly filed to ensure there will always be a valid certified PWD to use in connection with the I-140 petition.
Union positions – where the position falls under a Collective Bargaining Agreement, the employer must provide copies of the relevant portions of the Collective Bargaining Agreement (CBA), as well as notice to the union representative in order to submit the PWD. In these cases, the DOL will defer to the wage provisions in the CBA when assigning the prevailing wage for the offered position, instead of assigning the prevailing wage amount based on the DOL’s Occupational Employment Statistics wage database. We are, however, seeing additional delays, sometimes exceeding one year, in the processing of PWDs based on a CBA.
- Prepare and file the I-140 petition – the Schedule A nurse petition (I-140) can be filed with United States Citizenship and Immigration Services (USCIS) once the PWD has been received. This is the employer’s petition verifying certain terms of employment, showing ability to pay the prevailing wage, and requesting that the USCIS recognize the position as a Schedule A shortage position and allow the employee to file his/her I-485 Adjustment of Status (AOS) application seeking Lawful Permanent Resident, or “green card” status. Premium processing is available for the I-140 petition (USCIS will process in 15 days).
- I-485 Adjustment of Status application – the individual employee and any eligible family members (spouse or children under age 21) may each send in the I-485 green card applications along with the I-140 petition if the priority date is current, or after the I-140 petition has been approved. For individuals from certain countries where visa numbers are unavailable/backlogged, such as China and India, they may have to wait to submit the I-485 until those visa numbers are available again under the per-country limits.
- International Nurse Recruitment – Immigrant Visa via U.S. Consulate abroad – if the nurse is not currently in the United States in another valid nonimmigrant visa status (typically an F-1 student in their authorized work period (OPT) after graduation), the employer may submit an I-140 petition to be Consular Processed through the National Visa Center. The nurse would then have to wait for an Immigrant Visa appointment in his/her home country, or country of current residence, to enter the United States in Permanent Resident status and begin work for the sponsoring employer.
The Strategy and Timing of Hiring Foreign Nurses
Prevailing Wage Determinations are taking six to eight months for the DOL to issue, and even longer if the position is subject to a Collective Bargaining Agreement. Therefore, we recommend filing a Prevailing Wage Request on a rotating basis (every 4-6 months) so there is one continually pending and valid. An employer may have a valid PWD in place for a position without being obligated to file a green card petition. Having an already valid and approved PWD determination in place for a registered nurse position eliminates a long wait for that process; so that if and when an employer is ready to hire a nurse needing sponsorship, they may do so directly to USCIS without having to wait for prevailing wage delays.
The I-140 petition can be premium processed and approved in 15 business days, but the nurse cannot start working until issued an immigrant visa at the U.S. Consulate in their home country (if outside the U.S.), or until an EAD (Employment Authorization Document) is issued after filing the I-485 application (if they are legally present in the U.S.). In other words, the I-140 petition approval alone does not grant any work authorization or status to the sponsored employee. The EAD applications are filed concurrently with the I-485 applications and take several months to get approved. In most cases, however, the nurse candidate will likely be outside the United States and must wait to enter the country until the process is complete.
Given the enormous surge in EB-3 green card filings, employers are experiencing significant backlogs in immigrant visa (green card) availability. See our prior blog post on the Visa Bulletin. Currently, it can take two years or more to get through the process.
In the best-case scenario, where the nurse is not from a country experiencing a visa backlog and where he/she may be able to submit an I-485 concurrently with the I-140, the employer could be able to employ the nurse under the terms of an EAD less than one year from when they start the process. However, if the PWD is not yet in place, this could take a year or more before an EAD is issued and the nurse could begin his or her work.
