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.  

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 Compliance Group 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.

2. The Conundrum of Employer Compliance: Do I Have Any Choices?

By Amber Easton - Contributing Writer

NOTE: This article is an introduction to what will be a new area of our website and a new consulting service that Immigration Compliance Group will be offering to its USA-based corporate clients. More will come on this topic in the future months...

While Congress has been working to reform our nation's immigration laws, the Department of Homeland Security ("DHS"), through its Immigration and Customs Enforcement Bureau ("ICE"), has been more aggressively auditing companies to investigate their compliance with the Immigration Reform and Control Act of 1986 ("IRCA"). In response to 9/11, the government has increased its security measures and electronic initiatives to address national security concerns. As a result, we have seen increased audits and criminal investigations of U.S. employers. Search warrants, worksite raids and audits have become standard investigative tools to aid the Government in enforcing immigration laws.

While immigration can be a divisive issue today, employers must remain focused on complying with the law. Under IRCA, all employers must verify that every person hired after November 6, 1986, is either a U.S. citizen, permanent resident, or a foreign national authorized to work in the United States. Employers should reacquaint themselves with their duty to verify employees' eligibility to work in the United States and take steps to review and, if necessary, strengthen their compliance programs.

In February 2008, ICE issued a Workforce Enforcement Advisory to familiarize employers with common fraud schemes relating to an employee's eligibility to work.

Employment Verification Procedures

The mechanism for employment verification compliance is the I-9 Employment Verification Form which every worker must complete on the day of hire or earlier. The employee must complete the first section of the I-9 form and must provide the required supporting documents within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together).

USCIS recently released a new edition of Form I-9, Employment Eligibility Verification, dated 6/16/08 and have revised the Form I-9 page on its website to indicate that it is accepting the "Rev. 6/5/07" edition of the form.

For a copy of Form I-9, Employment Eligibility Verification with detailed Instructions, visit the USCIS website.

I-9 Record Keeping Requirements : Form I-9 is not submitted to the government. Instead, employers must retain completed I-9 forms for three years after the employee's date of hire or one year after the date that employment is terminated, whichever is later. Form I-9 may be completed and stored in hard copy or electronically.

IRCA Anti-Discrimination Rules : While all employers should be diligent about complying with IRCA's employment verification rules, they should also be cautious not to overstep boundaries such that qualified prospective employees are penalized. IRCA requires employers to refrain from unfair immigration-related employment practices ("UIREP"). The Act prohibits employers from committing employment discrimination against a worker because of his or her citizenship status or national origin. Employers are also prohibited from committing "document abuse" in the employment verification process. Document abuse occurs when an employer requests more or different documentation of a worker's identity or employment authorization, or refuses to accept proper documents. IRCA's antidiscrimination rules are very clear and its sanctions could be very severe. Under IRCA, employers cannot refuse to employ or terminate the employment of individuals based on their national origin or citizenship status. UIREP violations are investigated and litigated by the Office of Special Counsel, a Civil Rights Division of the Department of Justice. The Office of Special Counsel has caused employers to pay over $1 million in back-pay to workers, has required employers to rehire workers, and has levied fines totaling hundreds of thousands of dollars.

Mergers & Acquisitions : While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed I-9s for an acquired company invalid. If the acquiring company does not assume all the assets and liabilities, then the I-9s will likely not transfer. In a merger case where the acquiring entity is a successor-in-interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure the acquired I-9s are in good shape. Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand.

Penalties : IRCA provides an array of penalties for employment violations. An employer who has committed "paperwork violations" for mistakes in completing I-9 forms or failure to maintain I-9 records is subject to penalties of $110 to $1,100 for each violation. An employer who knowingly hires or continues to employ foreign nationals not authorized to work in the United States is subject to first offense civil fines of $250 to $2,200 for each unauthorized worker, and fines of up to $11,000 for subsequent offenses. In addition, if it is established that the employer had a "pattern or practice" of knowingly hiring or continuing to employ unauthorized workers, criminal penalties, including fines and prison terms, are possible. Employers who commit document fraud - e.g., fraudulently completing an I-9 form or knowingly accepting a forged or counterfeit document for verification purposes - are subject to first offense fines of up to $2,200 for each occurrence and up to $5,500 for subsequent offenses. In addition, employers who knowingly hire or continue to employ unauthorized workers may be barred from participating in contracting relationships with the federal government. Note that IRCA penalties may also be assessed against an employer who used unauthorized workers through a relationship with an independent contractor and who knew or had reason to know that the workers were ineligible for employment in the United States.

For more information on employer compliance:
Read this from the Immigration Compliance Group

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3. Democrats Block Amendment to Extend E-Verify

Last week, Congressman Ken Calvert (R-CA) introduced an amendment to the Homeland Security Appropriations Bill that would extend E-Verify for ten years.   E-Verify is the ONLY tool available to employers to check the work status of new employees, and is set to expire Nov. 30, 2008.

However, the amendment was challenged immediately when Subcommittee Chairman Price (D-NC) and Chairman Obey (D-WI) stated that the Judiciary Committee had sent a letter asking the Appropriations Committee to NOT pass the amendment and allow the committee to mark up and report Rep. Calvert's bill to reauthorize E-Verify.  

For more information on the Democrat's push to block the Calvert amendment:
Read this press release from Congressman Calvert's Website

4. Competing Globally for Talent - The Legal Side of Immigration

By Nicholas Cifuentes - Marketing Analyst

...immigrants have always been, and always will be, one of our greatest economic and cultural assets.

--Michael Bloomberg, New York City Mayor, at 2008 University of Pennsylvania commencement exercises.

Mayor Bloomberg is not the only advocate of more effective immigration policies to provoke the country's leaders to take action. The debate over immigrant worker systems has become heated, but many questions remain unanswered. For example, the H-1B visa classification system that allows highly skilled degreed workers into the United States is a process begging for reform.

Many argue that the legislative cap of 65,000 H-1B visas is reached too quickly. In 2008, the cap was reached by April 8, just seven days after filing applications began. Applications for advanced degree exemptions, capped at 20,000, were also filled by that date. With more than 160,000 H-1B applications submitted, and the program disintegrating into what amounts to an annual lottery, concern and irritation with the program is growing.

Proponents of the system argue that increasing the H-1B quota would be in the vital interest of American principles and values. Creating jobs and keeping them here is a key objective in maintaining national economic competitiveness on a global scale. The scientific, engineering and technology communities must maintain a position of global leadership rather than abandoning the opportunity to grow and conceding the best and the brightest talent, regardless of national origin, to other nations.  

Google, eBay, Yahoo, and Sun Microsystems, familiar powers in the IT industry, have paved the way for the United States in global advancement--all were founded by immigrants. Many immigrant workers with H-1B status have contributed greatly to the development, design and implementation of many services that enhance the daily lives of Americans.  

For more information on the legal side of immigration:
Read this article from Immigration Compliance Group  

5. Do You Remeber Your First July 4th?

By Random Blogger

I know someone who will this year.

This past week, I had the rare opportunity to attend a swearing-in ceremony for one of my co-workers who recently became an American citizen. It was a very exciting day - our entire department traveled to Memorial Auditorium and as we waited for the ceremony to begin, listened to the speaker go through each country represented that day and how many people from those countries were being sworn in. The countries with the most amounts of people being sworn in were China, India and the biggest one we heard, Mexico, with 548 people being sworn in as citizens. The judge eventually arrived and as the ceremony progressed, all 1900 people stood and raised their right hands, vowing to stand up for this country if they were ever needed and pledging their allegiance. Once the swearing in was complete, everyone clapped and cheered, and some cried. It was quite an emotional day, but so wonderful at the same time. I never really thought about how lucky we really are, with all of our freedoms, until that day - these people came from all over the world to find a better life for themselves and their families, and this was the day that they were finally able to call themselves citizens. You couldn't help but feel happiness for every single one of them.

And we were most excited for Cam, who I'm sure will always remember this 4th of July: her first one as an American citizen.

After this week, I won't be taking my citizenship for granted anymore.   For more information on this post:

Read this blog entry at My Place in The World

6. Healthcare Certification - The VisaScreen Process

Health care professionals and nurses that seek entry into the United States as employees in the health care field MUST obtain a VisaScreen Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS). The International Commission on Healthcare Professionals (ICHP), a division of CGFNS, issues the certificate.   Foreign-born nurses, even those educated in the United States, must complete VisaScreen certification in order to qualify for permanent resident status. The current fee for the initial VisaScreen certificate is US $448.00.

The VisaScreen Certificate encompasses three parts, with a fourth part necessary for nurses. The first part of the process is an educational review, which ensures that the applicant's education meets all applicable, regulatory, and statutory requirements for the profession in which the applicant intends to practice.  

The following are the educational requirements necessary for the VisaScreen Certificate:

1. Successfully completed a senior secondary school education that is separate from their primary education;
2. Graduated from a government-approved, professional, two-year health care program
3. Successfully completed a minimum number of clock/credit hours in specific theoretical and clinical areas during their professional programs

The second component required for the VisaScreen Certificate is the licensure review, which validates all current and past licenses.

The third component is the English language proficiency assessment, which confirms that that applicant has successfully passed the required oral and written tests approved by the U.S. Departments of Education and Health and Human Services.  

The fourth component is applicable only to health care workers who wish to obtain an employment-based visa to practice nursing in the USA. The CGFNS Certificate, which is different from the VisaScreen Certificate, only applies to nurse applicants. The VisaScreen certificate applies to all seven categories of health care professionals as listed in the below link. For more information on the VisaScreen Certificate and how to apply:

Read this FAQ sheet from the USCIS

7. California Program Helps Internationally Trained Physicians Become RNs

Becoming licensed to practice in the United States is a long and expensive process - especially for foreign-educated health care professionals.

The amount of time, money and resources that go into the process can exceed many individuals' resources, and most end up taking up a job unrelated to health care in order to make ends meet.

However, help is on the way - a new federally funded program in California is offering medical professionals a chance to stay in their chosen field. If you are a physician or any other internationally trained health worker living in California, you may take advantage of a variety of options that will allow you to practice medicine in the U.S. through the Welcome Back Center . Since 2004, the Center has helped foreign-trained health care professionals with their education and licensing requirements needed to practice in America.  

What the Welcome Back Center does, is work with community college and state universities throughout California, helping nurses, dentists, doctors and allied health care professionals with their transfer to the U.S. medical field. Since physicians have to go through the most difficult process to obtain their license, the center offers a special alternative program for international doctors to become registered nurses.  

For more information on the program:
Read this article from NurseZone

8. Obama, McCain Chase the Hispanic Voters at Latino Conference

Now that the presumptive presidential candidates for the 2008 election have been chosen, let the immigration games begin! Both candidates have clashed over their commitment to immigration reform.

At a recent conference of Hispanic American officials, both made separate comments on the topic.

Stepping up their efforts to court the Hispanic vote, Senator Obama accused his opponent of walking away from an earlier commitment to support foreign workers without documents on the path towards U.S. citizenship.  

However, Senator McCain, who had his immigration bill blocked by the Senate last year, said that such a proposal would not make it through Congress unless the American people were convinced the issue of border security had been adequately addressed, and that should be the priority.

For more information on Obama and McCain courting Hispanic voters:
Read this article from The Statesman.com

9. Arizona Senate Rejects Bill for Day Laborers

The Arizona Senate has rejected a bill that prohibits day laborers from seeking work on public streets, sidewalks, and private property under some circumstances.

The vote late last week followed a May defeat of the bill that was previously approved by the House.

Republican Rep. John Kavanagh of Fountain Hills says the bill was intended to reduce the traffic disruptions caused by the day laborers and help lessen the problems with illegal immigration.  

Day laborers, many of who are illegal immigrants, tend to gather on street corners, near home improvement stores and other places to seek short-term construction and landscaping work.  

For more information on the bill:
Read this article from the Arizona Daily Star

10. Minuteman Leader Opposes Path of Certain Anti-illegal Immigration Groups

Jim Gilchrest, founder of the Minutemen Project, is upset at the fact that some of his followers taking on "Saddam Hussein mentalities" toward illegal immigrants.

After seeing some online videos that encouraged border violence, he claims to feel responsible for what began as a public campaign, and since then has fallen to internal feuding and rampant controversy.

Gilchrest, a retired accountant, began his movement in 2005 when he led civilians on a border-watching mission.   He appeared on several news and TV programs across the country, and took it one step further months later when he ran against Rep. John Campbell, R-Irvine, to represent California's 48 th Congressional district.  

Looking back, Gilchrest said he wished he had done more to eliminate the troublemakers in the organization, both who opposed him politically and wished to ensure violence.

For more information on the Minutemen leader lamenting:
Read this article from the OC Register