Major Nursing Shortages? Foreign National Nursing Intervention as a Plan of Care.

Originally published in Healthcare Michigan, Volume 40,  No. 11

The nursing profession’s vital signs are unstable and require an intervention. The single largest occupation of health care workers is Registered Nurses (RN). It is also the fifth largest profession nationally.[1] Yet the nursing profession is facing extreme shortages as the need for health care workers grows. Specifically, according to data projections, the United States (US) will have a shortage of RNs resulting from an aging population and significant numbers of nurses nearing retirement age.[2] Compounding the situation is US nursing schools’ limited capacity to enroll nursing students into programs due to the lack of faculty, limited clinical placements for the nursing students, and a shortage of preceptors, who can supervise nursing students at health care providers.[3]

How can the US health system sustain itself in the short and/or long-term? As nurses prepare a plan of care for patients, health care providers need to prepare a plan of care for attracting and retaining nurses. Part of the assessment and diagnosis will depend in part on bringing foreign national health care workers into the US.  Certainly, Detroit based Henry Ford Health has focused significant efforts in recruiting up to 600 registered nurses from the Phillippines between 2023 to 2025.  In addition, Grand Blanc-based McLaren Health Care has Canadian health care workers and is recruiting nurses and medical technologists from the Phillippines, Nigeria, Kenya, Qatar, the United  Arab Emirates, and Saudi Arabia.[4]  Since 2020, Michigan has apparently lost 1,700 staffed hospital beds because of a lack of staffing.

Where Immigration Laws and Labor Needs Don’t Meet

It is interesting to see the efforts to focus on Philippine nurse recruitment again.  In 1989[5], Congress created the H-1A nonimmigrant category in response to the determination by the Department of Labor (DOL) that there was a shortage of nurses.  The program required nurses to:

• be licensed where they had been originally trained or to have been trained in the US or Canada; and
• have passed an appropriate examination or to have licenses and be otherwise eligible to practice immediately in the state of intended employment.

The visa classification was eventually eliminated by the Nursing Relief for Disadvantaged Areas Act of 1999 (P.L. 106-95) (Nursing Relief Act)  and the last H-1A visas were issued in fiscal year 2000.  The vast majority of the nurses benefitting from the program were from the Philippines.[6]

The H-1C nonimmigrant classification was another historical fix for nurses.  It had a limit of 500 visas annually and the category expired on December 20, 2009.

For immigrant visas (permanent residence/green card),  registered nurses have been a designated shortage occupation by the DOL under Schedule A for many years allowing employers to skip the normal required test of the US labor market to seek permanent residence for them in the US.  Schedule A currently includes only nurses and physical therapists.[7]

Even with the benefit of Schedule A streamlining, a major stumbling block for the longer term plan of hiring foreign nurses from abroad into positions conveying permanent residence is the availability of immigrant visa numbers.  While some nursing positions may require a Bachelor’s of Science degree in Nursing, most positions still only require an Associate’s degree.  Thus, for immigrant visa categories, the application is filed for an Employment Based third preference category (EB-3).  Employers must have a clear understanding of the annual allocation of immigrant visa numbers to make sense of this next point.  Each month, the Department of State (DOS) publishes the Visa Bulletin, which dictates when applicants have reached the front of the line to continue with immigrant visa processing.  In addition, for those outside of the US, they must secure an immigrant visa appointment with the appropriate US consular post abroad.  To put things in perspective, the present Visa Bulletin for December 2023, reflects that a registered nurse from the Philippines may easily wait over three to four years to obtain an immigrant visa to enter the US to commence work for a sponsoring employer.

There have been several legislative proposals over the past ten years plus trying various ways to address this challenge including setting aside immigrant visa numbers for nurses, exempting immigrant visa nurses from the annual immigrant visa numeric caps, or recapturing immigrant visa numbers unused due to agency processing delays.  These good faith efforts have failed even in the face of the ever increasing need for nurses.

In some cases, states have stepped in with innovative programs to fund recruitment and training of foreign nurses, streamlined licensing procedures including states that give licensure reciprocity,[8] scholarships to foreign nurses to prepare for the NCLEX exam, and the enactment of exemptions from the NCLEX exam or temporary licensure options, for example.

Certainly, the future cure for nursing shortages must involve creative solutions at the state and federal legislative levels.  The article will outline other examples of the inability of our existing immigration strategies to meet the legitimate health care needs of the US.

H-1B Program

 The H-1B visa program allows employers to temporarily hire foreign nationals in “specialty occupations” that require a minimum of the US equivalent of a bachelor’s degree for entry into the position, with limited exceptions. Since the H-1B visa program’s creation in 1990, Congress has limited the number of visas available each fiscal year. The current annual statutory cap is 65,000 visas, with an additional 20,000 visas allocated for foreign nationals who earned a master’s or doctorate from a US institution of higher learning. See our blog post on H-1B Cap Season.

Employers considered as “cap subject” are generally for profit organizations. There is an exception for “cap exempt” employers. This includes workers employed at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965, as amended), or a related or affiliated nonprofit entity, or nonprofit or governmental research organization, are exempt from the cap. The cap exemption is an “expected outcome” from Congress as a recognition of the shortage or need for certain professions. As a result, hospitals are often the beneficiary of the H-1B cap exemption.

Nursing as a “Specialty Occupation”?

The H-1B is a “specialty occupation” visa. As mentioned above, it requires a minimum of the US equivalent of a bachelor’s degree for entry into the position. This imposes limitations on the type of nursing positions that may be sponsored for an H-1B visa. While Licensed Practical Nurses (LPN), Licensed Vocational Nurses (LVN), and Registered Nurses are all covered health care occupations listed in the regulations 8 CFR §212.15(c) that defines health care workers, these occupations do not all require a minimum of a US bachelor’s degree for entry into the position. Most nursing positions including LPN/LVN’s typically require a minimum of an Associate’s degree or vocational training. As such, these nursing positions do not readily qualify for an H-1B sponsorship.

H-1B Visas as a Nursing Intervention

H-1B sponsorship is only available for Registered Nurses filling a nursing position, which can establish that:

• A minimum of a bachelor’s degree for entry into the position.
• Must satisfy state licensure criteria before an H-1B petition can be approved by the USCIS. Each state has their own licensure requirements to be assessed and evaluated.
• Obtain the Healthcare Worker Certificate also known as the VisaScreen issued by the Commission on Graduates of Foreign Nursing Students (CGFNS), which is a private company certified by the US government or the Visas4NURSES Certification issued by Josef Silny & Associates Inc.

Healthcare Worker Certificate

The purpose of the Healthcare Worker Certificate is to confirm that the foreign national nurse has the required education, training, and professional licenses to work in the US that is comparable with an American healthcare worker. It also serves as confirmation that the RN has not had any professional licenses around the world suspended or revoked. The Certificate is even required for US educated foreign nationals and may require an English language exam, i.e. TOEFL or IELTS.

Foreign healthcare workers trained in the US may be eligible for certain accommodations. A nurse may satisfy the English language and/or educational comparability requirements if they meet the following requirements:

• Graduates of health professional programs in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States.
• Alien nurses who are presenting the Alternate Certified Statement under section 212(r) of the Act. The 212(r) Certified Statement is an alternative to standard VisaScreen certification for those Registered Nurse applicants who meet the following criteria: (1) Licensed (active) in one of five states: Florida, Georgia, Illinois, Michigan, or New York. (2) Passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam.
• Graduation from an entry-level program accredited by the National League for Nursing Accreditation Commission (NLNAC) or the Commission on Collegiate Nursing Education (CCNE).

TN USMCA Occupation

One of the most common nonimmigrant visa solutions for many US hospitals and care facilities includes TN (Trade Nafta) visa sponsorship based on the US-Mexico-Canada Agreement (USMCA). It is common to find nurses crossing the border daily for work from places like Windsor, Ontario, Canada, to Detroit, Michigan, as these two are neighboring cities. Nursing is a professional occupation on USMCA Profession List. It is only available for citizens of Canada or Mexico because of the trade agreement. The nurse must possess a bachelor or licenciatura degree in nursing or state/provincial license. In addition, the RN must have a healthcare worker certificate.

Immigrant Visas: Schedule A, Group 1

The H-1B and TN work sponsorship solutions discussed above are temporary nonimmigrant work visas. It is also possible to sponsor professional nurses for immigrant visas (commonly referred to as a greencard). As noted above, there are two health care worker occupations covered under the US Department of Labor’s (DOL) Schedule A, Group I program: professional nurses and physical therapists.

For nurses to qualify for Schedule A, Group I processing, a nurse must be employed as a professional nurse; must have an employer sponsor; must possess a degree from a nursing school; must possess a license in a foreign country or in a US state; and, must either hold a full and unrestricted (permanent) license to practice nursing in the state of intended employment, a CGFNS certificate, or have passed the NCLEX-RN.

Plan of Care

Ultimately, each US employer will assess and evaluate their needs and goals, and devise a plan of care to fill nursing positions within their organizations. The decision to sponsor a nurse for a nonimmigrant visa, i.e. H-1B, H-1B1, E-3, TN, or for an immigrant visa (greencard), may depend on a number of factors, but ultimately may hinge on the state licensure issue. It can take just as long for a foreign national to meet the state licensure requirements for a nonimmigrant visa as it does to meet the certificate requirements for an immigrant visa. As a result, most employers may opt for immigrant visa processing for nursing positions. In the end, it is wise to consult with your immigration counsel to devise the appropriate plan of care to meet your needs and goals.

Related Services:

Health Care | Immigration

About the Authors:

Kathleen Campbell Walker is chair of the Immigration Practice Group of Dickinson Wright PLLC.  She is a national past president and general counsel of the American Immigration Lawyers Association (AILA).  She began practicing immigration law in 1985 after graduation from the University of Texas School of Law. She is board certified in Immigration and Nationality Law by Texas Board of Legal Specialization (TBLS).  She has testified several times before Congress regarding border security and immigration policy. In addition, she received the AILA Founder’s Award,  given from time to time to the person or entity having the most substantial impact on the field of immigration law or policy.    She can be reached at 915.541.9360 and her biography can be accessed here.

[1] US Bureau of Labor Statistics, “Occupational Employment and Wage Statistics – Charts of the largest occupations in each area, May 2022,” available at https://www.bls.gov/oes/current/area_emp_chart/area_emp_chart.htm# (May 23, 2022).

[2] American Association of Colleges of Nursing, “Nursing Shortage Factsheet,” available at https://www.aacnnursing.org/news-data/fact-sheets/nursing-shortage (October 2022).

[3] Tami Luhby, “Nursing schools are turning away thousands of applicants during a major nursing shortage. Here’s why.” CNN, October 25, 2023, available at https://www.cnn.com/2023/10/05/business/nursing-staff-shortage-school-enrollment/index.html.

[4] See Gooch, Kelly, “Michigan Systems do international with nurse recruiting, “ Becker’s Hospital Review (April 28, 2023). https://www.beckershospitalreview.com/workforce/michigan-systems-go-international-with-nurse-recruiting.html  and Shamus, Kristen Jordan, “Henry Ford looks to Philippines to combat worsening nursing shortage,” Detroit Free Press (April 28, 2023) https://www.freep.com/story/news/health/2023/04/28/henry-ford-nursing-shortage-philippines-hiring/70158710007/ .

[5] See the Immigration Nursing Relief Act of 1989 (P.L. 101-238), which also allowed certain nurses in nonimmigrant status, who had been working in the US for at least three years to apply to adjust to permanent residence and be exempt from annual numerical limits on immigrant visas.  Under this law, 7,830 nurses and 4,350 family members became legal permanent residents.

[6] See  Kandel, William A., et al,  “Immigration Options and Professional Requirements for Foreign Health Care Workers, Congressional Research Service R47528 (April 28, 2023).

[7] In addition, schedule A also lists certain persons deemed to be of exceptional ability in the sciences or arts.  20 C.F.R. §656.5(a).

[8] See NCSBN Resource Manual, Licensure of International Educated Nurses https://www.ncsbn.org/public-files/23_IEN_manual.pdf  and American Nurses Association https://www.nursingworld.org/practice-policy/workforce/clinical-practice-material/foreign-educated-nurses/ .