Nurses: How to Apply for an RN Residing in the U.S.
President Bush signed legislation on May 11,2005 providing for the "recapture" of 50,000 green cards for persons in Schedule A occupations (RNs, PTs and persons of exceptional ability).
THE RETROGRESSION IS OVER!
Now we will describe the ever-changing process of applying for permanent residence for RNs residing in the U.S.
It is essential, unless the nurse qualifies under section 245(i), that she enters the U.S. in a lawful nonimmigrant status.
It is also required that she either be in lawful nonimmigrant status when she applies for adjustment of status, or under section 245(k), has not accumulated 180 days or more of unlawful employment or failed to maintain status for this period of time.
Registered nurses are Schedule A (a shortage occupation) and are exempt from having to process their applications through the U.S. Department of Labor (DOL). CNAs and LVNs (aka LPNs) are not Schedule A.
Only RNs (A) who are in possession of a full and unrestricted license in the state of intended employment; (B) who have passed the predictor exam given by the Commission on Graduates of Foreign Nursing Schools (CGFNS); or (C) who have passed the NCLEX-RN licensure exam (but do not have a license because they lack a Social Security number) may be petitioned by a U.S. employer for permanent residence.
The U.S. employer must post a notice at the location where the RN will work stating that they are petitioning RN(s) for permanent residence. The notice must include both the job deion and the rate of pay. A range of pay is acceptable as long as the RN will be paid at least the bottom of the pay range. The notice must be posted in a conspicuous place for a minimum of 10 business days if the employer's RNs are not unionized. Otherwise, the notice need not be posted, but must be ted to the nurse's bargaining representative. Do not forget to sign and date the notice. The date of signing should be at least 10 days AFTER the notice was originally posted.
The notice must state that any person may provide evidence bearing on the filing of any application for permanent residence to the appropriate Certifying Officer (CO) of the DOL and must provide the CO's address. According to a CIS memorandum dated June 15, 2005, and posted on our web site at
http://shusterman.com/toc-rn.html#1
this same information must be provided to the Director of the CIS Service Center where the I-140/I-485 is filed. We do not see this requirement in the regulations, but unless the CIS amends this memo, you may want to provide this information as well.
The memo provides that if you post a faulty notice, the CIS will send you a Request for Evidence (RFE) with an opportunity to correct your mistake rather than the more-ominous Notice of Intent to Deny (NOID). It is unclear whether the CIS intends to apply this policy to petitions received on or after March 28,2005. We certainly hope that they do.
Do not forget that under the new PERM requirements, the employer must not only pay 100% of the prevailing wage to the RN, but must fax a Prevailing Wage Request Form to the State Workforce Agency (SWA) in the state of intended employment. We have posted all of the Prevailing Wage Request Forms on our web site at
http://shusterman.com/toc-dol.html#3B
We have learned by experience that the turnaround time for obtaining a Prevailing Wage Determination varies widely, from 24 hours for Connecticut to 7-8 weeks for California. Also, some states have an easier time classifying a beginning RN at Wage Level I (entry level) than do others.
When may an employer an I-140 petition to the appropriate CIS Service Center? Only after 30 days after the posting.
The petition must include all the information required by the regulations including evidence of the employer's ability to pay the nurse. The employer's brochure or a letter from the HR Director will not suffice. However, if the employer has at least 100 employees, a detailed letter from the CFO will.
The RN should an application for adjustment of status (I-485), a work permit (I-765), and a travel permit (I-131) simultaneously with the employer's immigrant visa petition (I-140). Don't forget to include the proper government filing fees, photos, etc.
If the RN is married and has children (under 21 years of age and unmarried) born abroad, these family members, if they are residing in the U.S. and are eligible for adjustment of status, should their I-485s/765s/131s at the same time as the RN.
When must the Healthcare ("VisaScreen") Certificate be ted? If the RN already has a VisaScreen Certificate when you petition for her, include it as an attachment to the I-485, but if she does not, the I-485 anyway. The CIS will send an RFE requesting the VisaScreen before adjudicating the application. Which RNs are exempt from the VisaScreen requirement? None. From the English requirement? RNs who received their nursing education in the U.S., the United Kingdom, Ireland, Australia, New Zealand and Canada (except Quebec). The Test of Spoken English (TSE) has been the downfall of many a poor nurse. Our advice: Take the IELTS instead.
Finally, if the RN's I-485 is denied, think section 245(k)!
All of the above information and more is available on our "Nurse" page at
http://shusterman.com/toc-rn.html