Foreign Nurses And US Visas: Things You Should Know and Unknow
Warning : This is lengthy but informative article
Advanced Practice Nurses and Visa Issues
A recent article, Trump Visa Changes Hit US Nursing Supply From Canada, Mexico by Diana Swift on Medscape Medical News, described how US Customs and Border Protection (CBP) personnel denied visas and US entry for some Canadian advanced practice nurses trying to work in the United States in March 2017.
“Under NAFTA [the North American Free Trade Agreement], Canadian and Mexican registered nurses have for decades practiced in the United States on nonimmigrant NAFTA Professional [Treaty NAFTA, or TN] visas, and each day many Canadian registered nurses (RNs) cross the border to work in US hospitals,” Swift wrote. “But under recent stricter interpretations by [CBP], advanced practice nurses…are no longer eligible to work under the old RN category and must now apply for H-1B visas. The latter cover specialized positions for foreign workers from any country and can cost several thousand dollars per applicant for expedited processing.”
CBP officers mistakenly believed that these nurses no longer qualified for TN visas, under which most Canadian and Mexican nurses work in the United States because they have advanced education, and said that they needed to apply for H-1B visas.
Things were pretty intense for about the first 2 weeks, with the border denying these TN applications, Marc A. Topoleski, managing attorney of the immigration law firm of Ellis Porter, Troy, Michigan, told Medscape Nurses. “It’s important to know that this issue is limited specifically to advanced practice nurses—nurse practitioners (NPs) and nurse anesthetists. RNs were not having [more issues than usual],” he said.
“All of a sudden…they were making the interpretation of NAFTA to say that those advanced practice nurses no longer qualify under the [RN] category, which is the only nursing category under NAFTA,” Mr Topoleski explained.
Initially, that caught everybody by surprise, but the CBP leadership looked into it further and determined that additional training of frontline CBP personnel was needed, Mr Topoleski said. There continued to be some misunderstandings about whether the status of the nurses might change in the future, but those worries seem to be resolved.
“It was a little rocky there for another week or so, but in the United States since then, we have not received any comments or complaints from any nurses…. For the time being, it seems like that issue has been resolved, and it’s fairly quiet,” Mr Topoleski added.
Approximately 400 Canadian nurses work for Henry Ford Health System in the metropolitan Detroit, Michigan, area, about 30 of whom are NPs or nurse anesthetists, according to the Detroit Free Press. Hundreds more work for other major healthcare systems in the area, including the Detroit Medical Center, Beaumont Health System, and St. John Providence. Nurses also cross the border to work in other northern states including Minnesota and Washington.
“We did not experience any staffing issues. We had one [NP] who was denied under the policy change, and, had that policy not been reversed, it could have affected up to 30 of Henry Ford’s advanced practice nurses,” Brenda D. Craig, director, Media Relations, Henry Ford Health System, Detroit, Michigan, told Medscape Nurses.
“According to our attorney, this issue originated from verbal communications made by frontline CBP officers to Canadian advanced practice nurses,” Ms Craig said. “CBP leadership later confirmed that such communications were based on a misunderstanding of the NAFTA treaty and were incorrect,” Ms Craig added.
Far fewer nurses cross the border from Mexico to work in the United States, in part because of the language barrier and differences in education and licensure requirements in Mexico.
US Nurses Respond
Medscape readers had strong feelings about the use of internationally educated nurses in general, illustrated by over 200 comments on the original news story. Many wrote in to say that there is no nursing shortage and that using nurses from other countries hurts US nurses. A number of nurses said that poor working conditions and low wages keep US nurses from taking jobs here. Others said that expensive tuition for advanced degrees and cumbersome requirements of state boards of nursing make it hard for nurses to advance their careers.
“There has not been a true nursing shortage in the [United States] in decades; there are merely a large number that refuse to hire adequate staff, permit humane and safe working environments, and decline to pay a reasonable wage,” one nurse wrote. “That way they can whine to media, ‘There’s a nursing shortage,’ when there isn’t one. It cuts into profits too much to hire experienced and quality personnel.”
One advanced practice nurse said that it took 9 months to find a job after graduating. “The work environment in local hospitals is suffocating and workload unmanageable. The foreign nurses are not hired to help us. They are hired to replace us and do the same work for less.”
Other nurses commented that they do see nursing shortages.
“Michigan has had a serious nursing shortage for decades and generally [has] ongoing position available for external hire. Most border area hospitals have a large number of Canadians working, who commute daily. Americans are lucky to have this workforce saving their lives,” one nurse wrote.
Nursing shortages exist in certain regions of the country, although nurses—including advanced practice nurses—have trouble finding employment in others. Physicians are increasingly entering specialty areas, which tend to pay better than primary care areas, and nurse practitioners and physician assistants are trying to fill some of those gaps as well.
“Around the country there is a growing need for primary care services. This is especially true for rural and urban areas, and Michigan is no exception,” Joyce Knestrick, PhD, CRNP, president-elect, American Association of Nurse Practitioners, told Medscape Nurses. “Outdated licensure laws have exacerbated geographic healthcare provider shortages. Thankfully, the Michigan legislature and governor passed a new law earlier this year that authorizes NPs to practice and prescribe most medications independently. [The American Association of Nurse Practitioners] anticipates this will help retain more NPs in Michigan and provide opportunities for NPs to deliver care in more areas around the state.”
“We are seeing trends in licensure law and workforce. Since the 1990s, states where licensure laws authorize NPs to practice and prescribe independently have had more NPs in rural areas than those with restrictive laws,” Dr Knestrick added.
Certified registered nurse anesthetists (CRNAs) were also caught up in the border situation. “In Wayne County, [Michigan], 60% of the anesthesia providers are CRNAs; and in Detroit, 52.6% of the anesthesia providers are [CRNAs],” Lynn J. Reede, DNP, MBA, CRNA, FNAP, senior director of professional practice at the American Association of Nurse Anesthetists, told Medscape Nurses.
“Demand for CRNA-provided anesthesia services is increasing across the country due to the aging population and other market forces,” Dr Reede explained. “The American Association of Nurse Anesthetists has more than 50,000 members across the country working in every practice setting, administering more than 43 million anesthetics each year for procedural, surgical, and obstetric procedures, as well as acute and chronic pain management care.”
Future of NAFTA Uncertain in United States
Mr Topoleski said that President Trump’s promise to withdraw from, or renegotiate, NAFTA has left uncertainty for many nurses working in the United States on TN visas.
“If the US were to withdraw from that treaty, or significantly renegotiate it, it is very possible that that would have an impact on the availability of TN visas,” Mr Topoleski said.
“While we don’t have any specific information that suggests that’s going to happen right away, or even what impact it might have on visas, that’s a possibility that people need to be aware of, so we’re letting them know of that and talking about the green card as a possible option to get a more secure permanent working status in the [United States] that would not be at the whim of a decision of an officer at the border or even a major change in NAFTA,” he explained.
H-1B Visa Program Under Scrutiny
Under NAFTA, 63 occupations are eligible for TN visa status, including registered nurses. H-1B visa status is different because it requires that the person be employed in a specialty occupation that requires at least a bachelor’s degree level of education. Registered nurses don’t automatically fall into that category because entry-level education for a registered nurse is an associate’s degree.
“A specialty occupation is defined as any occupation that requires, as an industry standard, at least a bachelor’s degree level of education as the minimum entry requirement. The fact that a particular nurse might have a bachelor’s degree is irrelevant to the analysis of whether they would qualify for an H-1B or not because the sole focus is on whether their job normally requires a bachelor’s as a minimum requirement,” Mr Topoleski explained.
“The majority of our nurses work in TN status, but some also work as an H-1B status…. Right now there’s an executive order about how they’re going to study the H-1B program and look at ways to reform the program,” Mr Topoleski added. It is unclear how exactly that will happen, he said. “It’s definitely a program they’re focusing on, and they’re going to be more diligent about compliance issues.”
Mr Topoleski said that they have always had nurses who apply for permanent resident status; however, “it’s definitely a topic that comes up much more frequently now, and we’re being asked to counsel nurses about how that process would work for them, much more so now than we have in the past.”
Permanent resident status is not right for every nurse, but some nurses may choose to pursue it to increase their job security, he said.
Nurses’ Current Concerns and Misconceptions
“A lot of nurses are concerned. The fact that at any time, they could potentially leave their job and lose their working status is scary for them,” Mr Topoleski added.
Some nurses wrote in to say that before they can hire a foreign national, employers must show that there are no US nurses to fill the position. That is not true for the TN or H-1B visas, nor for those seeking permanent resident status. Others said that foreign national nurses are sometimes paid lower wages than US nurses. That is also a misunderstanding.
“With the H-1B, there’s no requirement that you have to show any kind of shortage of US workers for the position; you just simply have to show that the job is a specialty occupation and that the foreign national employee you’re seeking to fill the position with presents credentials that meet those requirements and that the employer is offering a salary to the foreign national that is equal to or greater than the prevailing wage defined by the Department of Labor for that occupation in that location,” Mr Topoleski said.
“In a lot of green card areas, there are requirements that an employer does have to do a test of the labor market…. Oftentimes nurses are exempted from that because there’s another immigration law that recognizes that there’s an ongoing shortage of nurses and physical therapists; and therefore when they apply for permanent resident status, they don’t have to go through the same full labor market test that somebody in another occupation might,” Mr Topoleski explained.
No Nursing Shortage?
There is no nursing shortage, Peter McMenamin, PhD, senior policy advisor, Nursing Programs, and health economist from the American Nurses Association, told Medscape Nurses.He cited several sources that indicate that there are plenty of jobs and enough nurses to fill them. But, he said, nurses are unevenly distributed with regard to length of experience, with greater numbers of nurses nearing retirement age and younger nurses, as opposed to those in the middle, with 15-20 years of experience.
There are also salary disparities around the country, particularly in the lower Midwest and the Southeast, which tend to be largely rural areas. Still, he said, nurses in the United States have the highest salaries in the world.
Dr McMenamin said that after nurses graduate from college, they tend to settle down near where they grew up, but there are things that hospitals and healthcare employers can do to encourage nurses to move.
“What health employers can do is improve the working conditions, possibly hire more nurses at lower wages, so that the staffing ratios are better…. There are ways to address the issue. I’ve been suggesting, to deal with the retirement [situation], that some hospitals want to be talking to their most senior nurses and offering them opportunities as mentors for new nurses. [This would] extend the…careers of the more senior nurses, and if you hire even just a few more new nurses than you might have otherwise, but carefully onboard them and keep them in contact with their mentors so that they get the benefit of all that experience and they feel special, you can grow your own experienced workforce that way,” he explained. “Some people call that ‘phased retirement,'” he added.
“Don’t let people just walk out the door. Figure out a way to prolong their careers with this possible mentorship relationship to capture some of that experience,” Dr McMenamin added.
Canadian Nurses Are Filling a Need
A number of nurses wrote in to say that they value Canadian nurses. One nurse wrote: “[H]ere in the Detroit area…virtually every hospital employs at least a few Canadian nurses, many in advanced practice positions. We need them! They are vital to patient care…. I don’t know any nurses who are unemployed who don’t want to be.”
Another wrote: “This has been taken to a ridiculous level—Canadian nurses have never taken jobs away from American Nurses. We have facilitated staffing assistance on both sides of the border over many years! American nurses have been welcomed to Canada when shortages happened as well!”
One reader wrote that he/she found many of the readers’ comments “disturbing”: “I agree we [in the nursing] profession have issues we need to address; however, being uncaring, disrespectful, and unprofessional is not the correct path. Referring to your peers and colleagues as foreigners and making comments such as, ‘Why should we care about [Canadian] and [Mexican] nurses?’ is disturbing to hear from a profession that has been ranked as the MOST caring.”
“We work with hospitals here in Detroit, an urban area, and it’s very difficult to get nurses to come and work here, and so every hospital in Detroit has tens, if not hundreds, of nursing openings at any given time because they can’t keep their departments filled. If you had a way to get 100 American nurses, they would get sucked up in an instant,” Mr Topoleski said.
Advice to Current TN Nurses
Mr Topoleski said that he and his colleagues are giving Canadian nurses who want to work in the United States much the same advice that they always have, except that they are doing so more aggressively at the beginning, before they go to the border.
They are reminding nurses of what they need to know to ensure that they are qualified for this visa category, giving them tips so that they know how to respond to questions about whether they are qualified or not, and encouraging them to document any cases of perceived harassment or misinformation and the name of the staff person they are dealing with.
“If they receive comments that can be construed as harassment, or incorrect statements of the law, they should be very vigilant in making a note of those conversations, making a note of the name of the officer at the time, so that we can raise those issues with leadership at the border. We’ve always done that, but we’re probably a little more aggressive about it now on the front end,” Mr Topoleski said.
Editor’s Note: H-1B visas cost upwards of $3000, depending on several variables, compared with $56 to $325 for TN-1 (Canadian) visas, based on whether the applicant applies at the border or through US Citizenship and Immigration Services. TN-2 visas for Mexican nationals cost slightly more. Regular processing of H-1B visas can take 6 months or longer; US Citizenship and Immigration Services suspended expedited processing of H-1B visa applications for up to 6 months, effective April 3, 2017. TN visas obtained at the Canadian border can be processed immediately (see Web Resources for details).
Source : Nurses Are Talking About: Concerns and Misconceptions About Foreign Nurses and Visas – Medscape – Jun 02, 2017. www.medscape.com/viewarticle/880886_7
