69–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 106–135

NURSING RELIEF FOR DISADVANTAGED AREAS ACT OF

1999

MAY 12, 1999.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. SMITH of Texas, from the Committee on the Judiciary,

submitted the following

R E P O R T

[To accompany H.R. 441]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 441) to amend the Immigration and Nationality Act with respect to the requirements for the admission of nonimmigrant

nurses who will practice in health professional shortage areas, having considered the same, reports favorably thereon without amendment and recommends that the bill do pass.

TABLE OF CONTENTS

Page

Purpose and Summary .............................................................................. 2

Background and Need for the Legislation ................................................ 2

Hearings ...................................................................................................... 6

Committee Consideration .......................................................................... 6

Vote of the Committee ............................................................................... 6

Committee Oversight Findings ................................................................. 6

Committee on Government Reform Findings .......................................... 6

New Budget Authority and Tax Expenditures ........................................ 6

Congressional Budget Office Cost Estimate ............................................ 6

Constitutional Authority Statement ......................................................... 8

Section-by-Section Analysis and Discussion ............................................ 8

Changes in Existing Law Made by the Bill, as Reported ....................... 13
2

1Pub. L. No. 101–238 (1989). See sections 101(a)(15)(H)(i)(a) and 212(m) of the Immigration

and Nationality Act (hereinafter cited as ‘‘INA’’). 2Pub. L. 104–302 (1996).

3See Congressional Quarterly Almanac: 1996 at H–30. 4 INA sec. 212(m)(4).

5 Immigration Nursing Relief Advisory Committee, Report to the Secretary of Labor on the Immigration Nursing Relief Act of 1989 11 (1995)(‘‘Report’’).

PURPOSE AND SUMMARY

H.R. 441 would create a new ‘‘H–1C’’ temporary visa program for

registered nurses that would sunset after four years. The new program would be modeled after the expired ‘‘H–1A’’ program but

would limit the number of visas that could be issued to 500 a year

and would only allow ‘‘in-need’’ hospitals who meet certain criteria

to petition for alien nurses.

BACKGROUND AND NEED FOR THE LEGISLATION

I. The H–1A Registered Nurse Temporary Visa Program

The H–1A program was created by the Immigration Nursing Relief Act of 1989 [INRA] 1 and expired on September 1, 1995. Legislation enacted in the 104th Congress allowed nurses who had entered the United States under the program to stay and work as

registered nurses until September 30, 1997.2 However, amendments to extend the H–1A program for 6 months were defeated

both in the Judiciary Committee and on the House floor during

consideration of immigration reform legislation in the 104th Congress.3

The H–1A program had no numerical cap. In 1993, a representative year, 6,506 aliens were admitted pursuant to the H–1A program. Nurses could stay for an initial period of 3 years, subject to

extension up to a total of 5 years (6 years in case of extraordinary

circumstances).4

INRA was enacted in response to a number of contrasting factors, including the existence of ‘‘[a] nationwide nursing shortage severe enough to disrupt the delivery of services to patients in some

U.S. health care institutions and potentially place patients in jeopardy’’ and ‘‘[c]oncern among labor organizations . . . that foreign

workers [entering under the then-existing temporary visa program]

were having, or, given their rate of entry, might come to have, a

detrimental effect on the pay and working conditions of the domestic work force . . . .’’ 5

Under the H–1A program, an alien had to:

[have] obtained a full and unrestricted license to practice

professional nursing in the country where the alien obtained

nursing education or has received nursing education in the

United States or Canada;

[have] passed an appropriate examination . . . or [have] a

full and unrestricted license under State law to practice professional nursing in the State of intended employment; and

is fully qualified and eligible under the laws . . . governing

the place of intended employment to engage in the practice of

professional nursing as a registered nurse immediately upon
3

6 INA section 212(m)(1)(A)–(C).

7 In order to meet the terms of this attestation, the employer generally could not have laid

off registered nurses within the previous year. INA sec. 212(m)(2)(A). 8 INA section 212(m)(2)(A).

9 INA section 212(m)(2)(E).

10 Id. 11There were over 1.85 million registered nurses working in nursing in the United States in

1992. Report at Appendix F, page 45.

admission to the United States and is authorized under such

laws to be employed by the facility.6

Under the H–1A program, the intending employer had to attest

that:

[t]here would be a substantial disruption through no fault of

the [employer] in the delivery of health care services . . . without the services of such an alien[,] 7

[t]he employment of the alien will not adversely affect the

wages and working conditions of registered nurses similarly

employed[,]

[t]he alien employed by the [employer] will be paid the wage

rate for registered nurses similarly employed by the [employer,]

[e]ither . . . the [employer] has taken and is taking timely

and significant steps designed to recruit and retain sufficient

registered nurses who are United States citizens or immigrants

who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the

[employer] on [H–1A] registered nurses, or . . . the [employer]

is subject to an approved State plan for the recruitment and

retention of nurses[,]

[t]here is not a strike or lockout in the course of a labor dispute, and the employment of an [H–1A] alien is not intended

or designed to influence an election for a bargaining representative for registered nurses of the [employer, and]

. . . notice of the [petitioning for H–1A nurses] has been provided . . . to the bargaining representative of the registered

nurses at the [employer], or where there is no such bargaining

representative, notice of the filing has been provided to the

registered nurses employed at the [employer’s] facility ....8

The Labor Department had the responsibility of investigating

complaints that an employer did not meet the conditions attested

to or misrepresented a material fact in the attestation.9 If an employer was found to have committed a violation, the employer

would be barred from getting new H–1A petitions approved for at

least one year, could be fined up to $1,000 per violation, and could

be required to provide back pay if H–1A nurses were underpaid.10

II. The Immigration Nursing Relief Advisory Committee

INRA established the Immigration Nursing Relief Advisory Committee to measure the impact of INRA on the nursing shortage and

to advise on whether the H–1A program should be extended.

The Committee found that:

H–1A nurses . . . do not constitute a significant national presence.11 They fill multiple roles in the United States, working in a

variety of positions: [1] Positions that are difficult to fill or for
4

12 Id. at 21. 13 Id. at 22. 14 Id. at 25. 15 Id. The national average salary for full-time staff nurses working in hospitals was $35,200

in 1992. Id. at Appendix F, page 64. 16 Id. at 26. 17 Id. at 27. 18 Id. at 30. 19 Id. at 31–32 (footnotes omitted). 20 Id. at Appendix A, page 1. 21 Id. at Appendix A, page 2.

which they have special qualifications: e.g., intensive care units,

labor and delivery units, operating rooms, psychiatric units, and

long term care facilities; [2] Regular, bedside staff positions in hospitals and nursing homes; [3] Evening, night, and weekend shifts;

and [4] Positions where their language, race, or ethnicity is considered of value in providing services to multi-ethnic patients.12

[T]he New York-City-Newark, Chicago, Houston, Los Angeles, and Miami [areas] have accounted for two-thirds of all petitions filed ....13

[O]ver 80 percent of approved petitions . . . were for nurses

from the Philippines.14

In the local labor markets studied . . . H–1A nurses were

[not] paid differently from U.S. nurses.15

[T]here was no evidence of systematic differences in work assignments given to H–1A . . . nurses.16

[T]here were no indications of problems with H–1A nurses

. . . in delivering care ....17

Although the national [nursing] shortage of the late 1980s

has abated, this change could not be attributed to INRA. Market adjustments—increasing wages, increasing numbers of

nursing graduates, and changing demand—were much more

powerful and, ultimately, effective in ending the national

shortage.18

The future labor market for registered nurses is highly uncertain. . . . The most recent projections of employment for

RNs by the Bureau of Labor Statistics indicate an increase of

40 percent by 2005, far greater than the growth projected for

employment generally. Decreases in the number of nursing

graduates may be ahead in this decade with the possibility of

RN shortages again in the 21st century.19

Three Committee members—representing the AFL–CIO, the

American Nurses Association, and the Service Employees International Union—filed dissenting views. They found that ‘‘[t]he overwhelming preponderance of evidence indicates that the nursing

shortage of the 1980s was a transitory phenomenon. If anything,

today there is a slight oversupply of nurses and that oversupply is

likely to increase in the future.’’ 20 They also found that ‘‘since

1990, the health care industry has been actively restructuring, a

process that has been dominated by hospital downsizing. Today,

hospitals are laying off nurses or restructuring their jobs to reduce

or eliminate their bedside responsibilities.’’ 21

The Committee recommended that:

[The H–1A program should be extended with modifications] to

balance both the continuing need for foreign nurses in certain spe-
5

22 Id. at 35. 23 Id. at Appendix A, page 7. 24 Neil Sampson, Acting Associate Administrator for Health Professions, Health Resources and

Services Administration, U.S. Department of Health and Human Services, has stated that ‘‘[t]he

best information currently available indicates that there is not a national shortage of registered

nurses. There are a few areas in which specialty and locality shortages persist.’’ Hearing Before

the Immigration and Claims Subcomm. of the House Judiciary Comm., 105th Cong., 1st Sess.

(Nov. 5, 1997). 25 Id. (statement on behalf of St. Bernard Hospital and Mercy Regional Medical Center).

cialties and localities for which there are not adequate domestic

RNs and the need to continue to lessen employers’ dependence on

foreign RNs and protect the wages and working conditions of U.S.

RNs. In addition . . . the uncertainty about future demand for RNs

and the possibility of future shortages as evidenced by the cyclical

nature of past RN shortages, argues for a more cautious approach

to the elimination or reduction in temporary foreign RN entry into

the United States.22

The dissenters recommended that the H–1A program be allowed

to sunset. However, ‘‘[i]f the H–1A Visa program is retained then

hospitals should be restricted to using H–1A nurses limited to

those specific shortage areas or to meet special requirements, such

as language ability.’’ 23

III. H.R. 441

There does not appear to be a national nursing shortage today;

however, a number of hospitals with unique circumstances are still

experiencing great difficulty in attracting American nurses.24 Hospitals serving mostly poor patients have special difficulties. Some

hospitals in rural areas might also. For example:

St. Bernard Hospital and Health Care Center . . . is located

on the South side of Chicago in the Englewood Community. It

is the only remaining hospital in an area with a census in excess of 100,000 and the patient base is almost entirely poverty

care or charity care....

St. Bernard almost closed its doors in 1992, primarily because of its inability to attract health care professionals, most

importantly registered nurses.25

H.R. 441 bill has been drafted very narrowly to help precisely

these kinds of hospitals. Thus, it is built around the area of consensus between the majority and dissenting members of Immigration

Nursing Relief Advisory Committee.

H.R. 441 would create a new temporary registered nurse visa

program designated ‘‘H–1C’’ that would provide up to 500 visas a

year and that would sunset in four years. To be able to petition for

an alien, an employer would have to meet four basic conditions.

First, the employer would have to be located in a health professional shortage area as designated by the Department of Health

and Human Services. Second, the employer would have to have at

least 190 acute care beds. Third, a certain percentage (35%) of the

employer’s patients would have to be Medicare patients. Fourth, a

certain percentage (28%) of patients would have to be Medicaid patients. The bill contains the most important safeguards found in

the H–1A program and has added ones of its own.
6

26Letter from Beverly Malone, President, American Nurses Association, to U.S. Representative Sheila Jackson Lee (March 18, 1999).

The American Nursing Association has written that: ‘‘[w]ith regard to H.R. 441, ANA has taken a position of neutrality. However,

ANA will adamantly oppose any amendments which seek to broaden the application of this visa or would lessen the protections afforded registered nurses under this measure.’’ 26

HEARINGS

No hearings were held on H.R. 441. However, the Committee’s

Subcommittee on Immigration and Claims held one day of hearings

on its predecessor bill [H.R. 2759] in the 105th Congress on November 5, 1997. Testimony was received from U.S. Representative

Bobby Rush; Neil Sampson, Acting Associate Administrator for

Health Professions, Health Resources and Services Administration,

U.S. Department of Health and Human Services; Ron Campbell,

Vice President for Patient Care Services, St. Bernard Hospital and

Health Care Center, Chicago, Illinois; Cheryl Peterson, Associate

Director for Federal Government Relations, American Nurses Association; and Mark Stauder, President and Chief Operating Officer,

Mercy Regional Medical Center, Laredo, Texas.

COMMITTEE CONSIDERATION

On March 18, 1999, the Subcommittee on Immigration and

Claims met in open session and ordered reported the bill H.R. 441

by a voice vote, a quorum being present. On March 24, 1999, the

Committee met in open session and ordered reported favorably the

bill H.R. 441 by a voice vote, a quorum being present.

VOTE OF THE COMMITTEE

The bill was reported favorably by voice vote.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

COMMITTEE ON GOVERNMENT REFORM FINDINGS

No findings or recommendations of the Committee on Government Reform and Oversight were received as referred to in clause

3(c)(4) of Rule XIII of the Rules of the House of Representatives.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.
7

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the bill H.R. 441, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, April 2, 1999.

Hon. HENRY J. HYDE,

Chairman, Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 441, the Nursing Relief

for Disadvantaged Areas Act of 1999.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts are Mark Grabowicz (for

costs of the Immigration and Naturalization Service), who can be

reached at 226–2860, Christi H. Sadoti (for costs of the Department

of Labor), who can be reached at 226–2820, Lisa Cash Driskill (for

the state and local impact), who can be reached at 225–3220, and

John Harris (for the private-sector impact), who can be reached at

226–6910.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure.

H.R. 441—Nursing Relief for Disadvantaged Areas Act of 1999

CBO estimates that enacting H.R. 441 would have a negligible

net impact on the federal budget. Because the bill would affect direct spending and receipts, pay-as-you-go procedures would apply.

However, we estimate that the amounts involved would be much

less than $500,000 a year. This legislation contains no intergovernmental mandates as defined in the Unfunded Mandates Reform Act

(UMRA). Any costs incurred by state, local, or tribal governments

would be a result of voluntary participation in the program established by this bill. H.R. 441 would impose a new private-sector

mandate on employers of nonimmigrant nurses who come to the

United States under the bill. CBO estimates that the costs of complying with this mandate would fall well below the statutory

threshold established in UMRA ($100 million in 1996, adjusted annually for inflation).

H.R. 441 would establish a new nonimmigrant category for

nurses who would work in areas of the United States with shortages of health professionals. The bill would authorize the issuance

of 500 nonimmigrant visas annually over the next four years for individuals in this category, and recipients could stay in the United

States for three years. The fee charged for these visas would be

$110, so enacting the bill could increase the amount of fees collected by the Immigration and Naturalization Service (INS) by

about $55,000 annually if all 500 visas were granted. The INS

would spend the fees (without appropriation action), mostly in the
8

year in which they were collected, so enacting H.R. 441 would result in a negligible net impact on INS spending.

The bill would require the Department of Labor (DOL) to charge fees of up to $250 to facilities that file applications to hire immigrant nurses. This provision would result in the collection of fees

totaling between $15,000 and $50,000 annually, assuming all visas

are granted and petitioning facilities apply to hire more than one

worker. The spending of fees collected by DOL would be subject to

appropriation action.

In addition, the bill would increase civil monetary penalties for

violations of certain laws relating to the hiring of nonimmigrant

nurses. This action could result in the collection of additional receipts, but we estimate that any such amounts would be less than

$500,000 per year.

By creating a new nonimmigrant visa program for qualified

nurses, the bill would allow certain health facilities, some of them

operated by state and local public agencies, to increase the number

of nurses they employ. In order to participate, these facilities would

have to satisfy criteria established in the bill and pay the fee to

DOL as described above. However, their participation in the program would be voluntary.

H.R. 441 would impose a new private-sector mandate on employers of nonimmigrant nurses who come to the United States under

the program established by the bill. Although employers who use

nonimmigrant nurses would do so voluntarily, such employers

would have to comply with requirements of the applicable federal

immigration programs. They would be required to provide certain

information, wages, working conditions, and rights to unionization

commensurate with those of similarly employed nurses who are

citizens or immigrants. These enforceable duties meet the definition of a private-sector mandate in UMRA because immigration

processes are governmentally mandated and are not considered voluntary federal programs. CBO estimates that the direct cost of new

mandates in H.R. 441 would be very small because the number of

nonimmigrant nurses allowed to enter the United States under this

legislation would be limited to 500 or fewer each year.

The CBO staff contacts are Mark Grabowicz (for INS costs), who

can be reached at 226–2860, Christi H. Sadoti (for DOL costs), who

can be reached at 226–2820, Lisa Cash Driskill (for the state and

local impact), who can be reached at 225–3220, and John Harris

(for the private-sector impact), who can be reached at 226–6910.

This estimate was approved by Robert A. Sunshine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in Article I, section 8, clause 4 of the Constitution.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

The Act may be cited as the ‘‘Nursing Relief for Disadvantaged

Areas Act of 1999.’’
9

Section 2. Requirements for admission of nonimmigrant nurses in

health professional shortage areas during 4-year period

Section 2(a) of the bill amends section 101(a)(15)(H)(i) of the Immigration and Nationality Act by adding a subclause (c) creating

a nonimmigrant visa program for aliens to perform services as registered nurses. To qualify for an ‘‘H–1C’’ visa, an alien would have

to meet the three qualifications set forth in section 2(b) of the bill

and the facility for which the alien would perform nursing services

must have an unexpired attestation on file and in effect with the

U.S. Secretary of Labor, as described in section 2(b) of the bill.

Section 2(b) of the bill amends section 212(m)(1) of the INA in

order that it set forth the three qualifications an alien must possess. First, the alien must have obtained a full and unrestricted license to practice professional nursing in the country where the

alien obtained nursing education or has received nursing education

in the United States. Second, the alien must have passed an appropriate examination or has a full and unrestricted license under

State law to practice nursing in the State of intended employment.

Third, the alien must be fully qualified and eligible under the laws

governing the place of intended employment to engage in the practice of nursing as a registered nurse immediately upon admission

to the United States and is authorized under such laws to be employed by the facility.

Section 2(b) amends section 212(m)(2)(A) of the INA in order that

it describe the attestation that a facility must make. The facility

must attest that (1) it meets the requirements of section 212(m)(6)

of the INA, (2) the employment of the alien will not adversely affect

the wages and working conditions of registered nurses similarly

employed, (3) the alien will be paid the wage rate for registered

nurses similarly employed by the facility, (4) the facility has taken

(after the date of enactment of this bill) and is taking timely and

significant steps designed to recruit and retain sufficient registered

nurses who are U.S. citizens or immigrants who are authorized to

perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses, (5) there is not a strike or lockout in the course of

a labor dispute, the facility did not lay off and will not lay off a

registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing of

any H–1C visa petition, and the employment of such an alien is not

intended or designed to influence an election for a bargaining representative for registered nurses of the facility, (6) at the time of

the filing of the petition for H–1C nurses, notice of the filing has

been provided by the facility to the bargaining representative of the

registered nurses at the facility, or, where there is no bargaining

representative, notice of the filing has been provided to registered

nurses employed at the facility through posting in conspicuous locations, (7) the facility will not, at any time, employ a number of

aliens issued H–1C visas or otherwise provided H–1C nonimmigrant status that exceeds 33% of the total number of registered nurses employed by the facility, and (8) the facility will not,

with respect to any alien issued an H–1C visa or otherwise provided H–1C status, authorize the alien to perform nursing services

at any worksite other than a worksite controlled by the facility or
10

transfer the place of employment of the alien from one worksite to

another. A copy of the attestation shall be provided to registered

nurses employed at the facility.

Section 2(b) amends section 212(m)(2)(B) of the INA so that it

provides a non-exclusive list of ‘‘significant steps’’ to recruit and retain registered nurses: (1) operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere, (2) providing career development programs and other methods of facilitating health care workers to become registered nurses, (3) paying

registered nurses wages at a rate higher than currently being paid

to registered nurses similarly employed in the geographic area, and

(4) providing reasonable opportunities for meaningful salary advancement by registered nurses. A facility does not need to take

more than one step if it can demonstrate that taking a second step

is not reasonable.

Section 2(b) amends section 212(m)(2)(C) of the INA to provide

that attestations shall expire on the later of (1) the end of the oneyear period beginning on the date of its filing, or (2) the end of the

period of admission of the last alien with respect to whose admission it was applied, and shall apply to petitions filed during the

one-year period beginning on the date of its filing if the facility

states in each such petition that it continues to comply with the

conditions of the attestation.

Section 2(b) amends section 212(m)(2)(D) of the INA to provide

that a facility may meet the requirements of paragraph 212(m)(2)

with respect to more than one registered nurse in a single petition.

Section 2(b) of the bill amends section 212(m)(2)(E) of the INA

to provide that the Secretary of Labor shall compile and make

available for public examination a list identifying facilities that

have filed petitions for H–1C nonimmigrants (along with copies of

attestations, accompanying documentation and petitions filed).

Section 212(m)(2)(E) is also amended to provide that the Secretary of Labor shall establish a process, including reasonable time

limits, for the receipt, investigation, and disposition of complaints

respecting a facility’s failure to meet attested to conditions or misrepresentation of a material fact in an attestation. Complaints may

be filed by aggrieved persons or organizations (including bargaining representatives). The Secretary shall conduct an investigation

if there is reasonable cause to believe that a violation has occurred.

The Secretary shall provide for a determination within 180 days of

the filing of a complaint as to whether or not a basis exists to make

a finding that a violation has occurred, and provide notice and opportunity for a hearing to interested parties if the Secretary finds

that a basis does exist. If the Secretary finds that a violation (failure to meet attested to conditions or misrepresentation of a material fact in an attestation) has occurred, the Secretary shall notify

the Attorney General of such finding, and may, in addition, impose

other appropriate administrative remedies (including civil monetary penalties not to exceed $1,000 per nurse per violation with a

total penalty not to exceed $10,000 per violation). The Secretary

shall order the payment of back pay as may be necessary to put

a facility in compliance with the prevailing wage requirement.

Upon receipt of notice that a violation has occurred, the Attorney
11

General shall not approve H–1C petitions filed with respect to a facility during a period of at least one year.

Section 2(b) of the bill creates a new section 212(m)(2)(F) of the

INA providing for a filing fee for attestations (based on the costs

to the Secretary of Labor of operating the H–1C program but not

to exceed $250).

Section 2(b) of the bill amends section 212(m)(3) of the INA to

provide that the period of admission of an H–1C nonimmigrant

shall be three years.

Section 2(b) of the bill amends section 212(m)(4) of the INA to

provide that the total number of nonimmigrant visas issued pursuant to H–1C petitions in a fiscal year shall not exceed 500. The

number of visas issued for employment in each state in a fiscal

year shall not exceed 25 for states with populations of less than

9,000,000 and 50 for states with larger populations. If the total

number of visas available for a fiscal year quarter exceeds the

number of qualified nonimmigrants who may be issued visas during those quarters, the visas made available shall be issued without regard to the per state limitations during the last fiscal year

quarter.

Section 2(b) of the bill amends section 212(m)(5) of the INA to

provide that a facility participating in the H–1C program shall provide H–1C nonimmigrants with a wage rate and working conditions commensurate with those of nurses similarly employed by the

facility, shall require H–1C nonimmigrants to work hours commensurate with those of nurses similarly employed by the facility, and

shall not interfere with the right of H–1C nonimmigrants to join

or organize a union.

Section 2(b) of the bill creates a new section 212(m)(6) of the INA

providing that for a facility to be able to participate in the H–1C

program, it must be a hospital defined in section 1886(d)(1)(B) of

the Social Security Act, be located in a health professional shortage

area (as of March 31, 1997, and as defined in section 332 of the

Public Health Service Act), have not less than 190 acute care beds,

and have not less than 35% of its total number of acute care impatient days made up of patients who were entitled to benefits under

Part A of title XVIII of the Social Security Act and have not less

than 28% made up of patients who were eligible for assistance

under a State plan approved under title XIX of the Social Security

Act).

Section 2(b) of the bill creates a new section 212(m)(7) of the INA

defining the term ‘‘lay off’’ for purposes of the H–1C program.

Section 2(c) of the bill strikes the designation (at section

101(a)(15)(H)(i)(a) of the INA) of the expired ‘‘H–1A’’ nonimmigrant

nursing program.

Section 2(d) of the bill provides that not later than 90 days after

the bill’s enactment, the Secretary of Labor (in consultation with

the Secretary of Health and Human Services) and the Attorney

General shall promulgate final or interim final regulations to carry

out the H–1C program.

Section 2(e) of the bill provides that facilities may file H–1C petitions only during the four year period beginning on the date that

interim or final regulations are first promulgated.
12

Section 3. Recommendations for alternative remedy for nursing

shortage

Section 3 of the bill provides that by no later than the conclusion

of the H–1C program, the Secretary of Health and Human Services

and the Secretary of Labor are required to submit recommendations to Congress on a program to eliminate the dependence of certain hospitals on H–1C foreign nurses by providing for a permanent resolution to the current shortage of American nurses at some

rural and urban locations. They also must recommend a program

for more effectively enforcing the qualification and attestation requirements for nurses under the program. While this provision accords a 4-year period for the submission of the recommendations,

it is anticipated that an effort will be made to submit them as soon

as possible. This is particularly true of the recommendation for a

program to enforce the qualification and attestation requirements

for the nurses. Enforcement is an immediate need.

This provision grants the Secretaries the discretion to determine

what measures should be considered as recommendations. Possible

measures might include the development of programs to recruit

more college-educated persons into the nursing profession, programs to retain people who have already entered the profession,

programs to provide financial assistance to young people who are

willing to work in economically deprived rural and urban areas but

do not have the financial means to pay for a nursing education,

and studies to determine what factors would encourage experienced

nurses to work in the rural and urban communities that are experiencing shortages. In addition, consideration might be given to expanding the federal programs that already address some of these

problems and to the possibility of creating new federal programs.

Finally, consideration might be given to ways of implementing the

recommendations.

Section 4. Certification for certain alien nurses

Section 4 of the bill provides a limited exemption from section

212(a)(5)(C) of the INA. That section provides for a certification

process for aliens seeking to enter the United States to work as

non-physician health care workers. The section is designed to ensure that the credentials of alien health care workers are authentic

and that they have sufficient training and English language ability

to adequately perform their jobs.

Section 4 provides that section 212(a)(5)(C) shall not apply to an

alien seeking to work as a nurse where the Commission on Graduates of Foreign Nursing Schools (or an approved equivalent independent credentialing organization) certifies that the alien (1) has

a valid and unrestricted license in the state of intended employment and such state verifies the alien’s license as authentic and

unencumbered, (2) has passed the National Council Licensure Examination, (3) is the graduate of a nursing program in which the

language of instruction was English, and either the Commission

has designated the country where the nursing program is located

within 30 days of the enactment of the bill based on an assessment

that the quality of nursing education in that country and the

English language proficiency of those who complete nursing programs in that country are of sufficient quality or the Commission
13

H.L.C.

and any approved credentialing organizations unanimously agree

to the country’s designation based on such an assessment, and (4)

is a graduate of a nursing program which was in operation on or

before the date of enactment of the bill or has been approved by

unanimous agreement of the Commission and any approved

credentialing organizations.

The effective date of the amendments made by section 4 is the

date of enactment of the bill, regardless of whether or not final regulations to carry out such amendments have been promulgated.

The Commission or any approved equivalent independent

credentialing organization must issue statements certifying the

qualifications of the nurses not more than 35 days after the receipt

of completed applications for such statements.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

IMMIGRATION AND NATIONALITY ACT

* * * * * * *

TITLE I—GENERAL

DEFINITIONS

SECTION 101. (a) As used in this Act—

(1) * * *

* * * * * * *

(15) The term ‘‘immigrant’’ means every alien except an alien

who is within one of the following classes of nonimmigrant aliens—

(A) * * *

* * * * * * *

(H) an alien (i) ø(a) who is coming temporarily to the

United States to perform services as a registered nurse, who

meets the qualifications described in section 212(m)(1), and

with respect to whom the Secretary of Labor determines and

certifies to the Attorney General that an unexpired attestation

is on file and in effect under section 212(m)(2) for each facility

(which facility shall include the petitioner and each worksite,

other than a private household worksite, if the worksite is not

the alien’s employer or controlled by the employer) for which

the alien will perform the services, or¿ (b) subject to section

212(j)(2), who is coming temporarily to the United States to

perform services (other than services described in subclause (a)

during the period in which such subclause applies and other

than services described in subclause (ii)(a) or in subparagraph

(O) or (P)) in a specialty occupation described in section

214(i)(1) or as a fashion model, who meets the requirements for
14

H.L.C.

the occupation specified in section 214(i)(2) or, in the case of

a fashion model, is of distinguished merit and ability, and with

respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has

filed with the Secretary an application under section

212(n)(1)ø; or¿, or (c) who is coming temporarily to the United

States to perform services as a registered nurse, who meets the

qualifications described in section 212(m)(1), and with respect

to whom the Secretary of Labor determines and certifies to the

Attorney General that an unexpired attestation is on file and in

effect under section 212(m)(2) for the facility (as defined in section 212(m)(6)) for which the alien will perform the services; or

(ii)(a) having a residence in a foreign country which he has no

intention of abandoning who is coming temporarily to the

United States to perform agricultural labor or services, as defined by the Secretary of Labor in regulations and including

agricultural labor defined in section 3121(g) of the Internal

Revenue Code of 1954 and agriculture as defined in section 3(f)

of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), of

a temporary or seasonal nature, or (b) having a residence in a

foreign country which he has no intention of abandoning who

is coming temporarily to the United States to perform other

temporary service or labor if unemployed persons capable of

performing such service or labor cannot be found in this country, but this clause shall not apply to graduates of medical

schools coming to the United States to perform services as

members of the medical profession; or (iii) having a residence

in a foreign country which he has no intention of abandoning

who is coming temporarily to the United States as a trainee,

other than to receive graduate medical education or training,

in a training program that is not designed primarily to provide

productive employment; and the alien spouse and minor children of any such alien specified in this paragraph if accompanying him or following to join him;

* * * * * * *

TITLE II—IMMIGRATION

* * * * * * *

CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL

CONTROL OF CITIZENS AND ALIENS

* * * * * * *

GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND

INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILITY

SEC. 212. (a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR AD- MISSION.—Except as otherwise provided in this Act, aliens who are

inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(1) * * *

* * * * * * *
15

H.L.C.

(5) LABOR CERTIFICATION AND QUALIFICATIONS FOR CERTAIN

IMMIGRANTS.— (A) * * *

* * * * * * *

(C) UNCERTIFIED FOREIGN HEALTH-CARE WORKERS.— øAny alien who seeks¿ Subject to subsection (r), any alien

who seeks to enter the United States for the purpose of

performing labor as a health-care worker, other than a

physician, is inadmissible unless the alien presents to the

consular officer, or, in the case of an adjustment of status,

the Attorney General, a certificate from the Commission

on Graduates of Foreign Nursing Schools, or a certificate

from an equivalent independent credentialing organization

approved by the Attorney General in consultation with the

Secretary of Health and Human Services, verifying that—

(i) * * *

* * * * * * *

ø(m)(1) The qualifications referred to in section

101(a)(15)(H)(i)(a), with respect to an alien who is coming to the

United States to perform nursing services for a facility, are that

the alien—

ø(A) has obtained a full and unrestricted license to practice

professional nursing in the country where the alien obtained

nursing education or has received nursing education in the

United States or Canada;

ø(B) has passed an appropriate examination (recognized in

regulations promulgated in consultation with the Secretary of

Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the

State of intended employment; and

ø(C) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which

authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional

nursing as a registered nurse immediately upon admission to

the United States and is authorized under such laws to be employed by the facility.

ø(2)(A) The attestation referred to in section 101(a)(15)(H)(i)(a)

is an attestation as to the following:

ø(i) There would be a substantial disruption through no

fault of the facility in the delivery of health care services of the

facility without the services of such an alien or aliens.

ø(ii) The employment of the alien will not adversely affect

the wages and working conditions of registered nurses similarly employed.

ø(iii) The alien employed by the facility will be paid the

wage rate for registered nurses similarly employed by the facility.

ø(iv) Either (I) the facility has taken and is taking timely

and significant steps designed to recruit and retain sufficient

registered nurses who are United States citizens or immigrants

who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the
16

H.L.C.

facility on nonimmigrant registered nurses, or (II) the facility

is subject to an approved State plan for the recruitment and

retention of nurses (described in paragraph (3)).

ø(v) There is not a strike or lockout in the course of a labor

dispute, and the employment of such an alien is not intended

or designed to influence an election for a bargaining representative for registered nurses of the facility.

ø(vi) At the time of the filing of the petition for registered

nurses under section 101(a)(15)(H)(i)(a), notice of the filing has

been provided by the facility to the bargaining representative

of the registered nurses at the facility or, where there is no

such bargaining representative, notice of the filing has been

provided to registered nurses employed at the facility through

posting in conspicuous locations.

A facility is considered not to meet clause (i) (relating to an attestation of a substantial disruption in delivery of health care services)

if the facility, within the previous year, laid off registered nurses.

Notwithstanding the previous sentence, a facility that lays off a

registered nurse other than a staff nurse still meets clause (i) if,

in its attestation under this subparagraph, the facility has attested

that it will not replace the nurse with a nonimmigrant described

in section 101(a)(15)(H)(i)(a) (either through promotion or otherwise) for a period of 1 year after the date of the lay off. Nothing

in clause (iv) shall be construed as requiring a facility to have

taken significant steps described in such clause before the date of

the enactment of this subsection. In the case of an alien for whom

an employer has filed an attestation under this subparagraph and

who is performing services at a worksite other than the employer’s

or other than a worksite controlled by the employer, the Secretary

may waive such requirements for the attestation for the worksite

as may be appropriate in order to avoid duplicative attestations, in

cases of temporary, emergency circumstances, with respect to information not within the knowledge of the attestor, or for other good

cause.

ø(B) For purposes of subparagraph (A)(iv)(I), each of the following shall be considered a significant step reasonably designed to recruit and retain registered nurses:

ø(i) Operating a training program for registered nurses at

the facility or financing (or providing participation in) a training program for registered nurses elsewhere.

ø(ii) Providing career development programs and other

methods of facilitating health care workers to become registered nurses.

ø(iii) Paying registered nurses wages at a rate higher than

currently being paid to registered nurses similarly employed in

the geographic area.

ø(iv) Providing adequate support services to free registered

nurses from administrative and other nonnursing duties.

ø(v) Providing reasonable opportunities for meaningful salary advancement by registered nurses.

The steps described in this subparagraph shall not be considered

to be an exclusive list of the significant steps that may be taken

to meet the conditions of subparagraph (A)(iv)(I). Nothing herein
17

H.L.C.

shall require a facility to take more than one step, if the facility

can demonstrate that taking a second step is not reasonable.

ø(C) Subject to subparagraph (E), an attestation under subparagraph (A) shall—

ø(i) expire at the end of the 1-year period beginning on the

date of its filing with the Secretary of Labor, and

ø(ii) apply to petitions filed during such 1-year period if

the facility states in each such petition that it continues to

comply with the conditions in the attestation.

ø(D) A facility may meet the requirements under this paragraph with respect to more than one registered nurse in a single

petition.

ø(E)(i) The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington,

D.C., a list identifying facilities which have filed petitions for nonimmigrants under section 101(a)(15)(H)(i)(a) and, for each such facility, a copy of the facility’s attestation under subparagraph (A)

(and accompanying documentation) and each such petition filed by

the facility.

ø(ii) The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting a facility’s failure to meet conditions attested to or a facility’s misrepresentation of a material fact in an attestation. Complaints may be

filed by any aggrieved person or organization (including bargaining

representatives, associations deemed appropriate by the Secretary,

and other aggrieved parties as determined under regulations of the

Secretary). The Secretary shall conduct an investigation under this

clause if there is reasonable cause to believe that a facility fails to

meet conditions attested to.

ø(iii) Under such process, the Secretary shall provide, within

180 days after the date such a complaint is filed, for a determination as to whether or not a basis exists to make a finding described

in clause (iv). If the Secretary determines that such a basis exists,

the Secretary shall provide for notice of such determination to the

interested parties and an opportunity for a hearing on the complaint within 60 days of the date of the determination.

ø(iv) If the Secretary of Labor finds, after notice and opportunity for a hearing, that a facility (for which an attestation is

made) has failed to meet a condition attested to or that there was

a misrepresentation of material fact in the attestation, the Secretary shall notify the Attorney General of such finding and may,

in addition, impose such other administrative remedies (including

civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate. Upon receipt

of such notice, the Attorney General shall not approve petitions

filed with respect to a facility during a period of at least 1 year for

nurses to be employed by the facility.

ø(v) In addition to the sanctions provided under clause (iv), if

the Secretary of Labor finds, after notice and an opportunity for a

hearing, that a facility has violated the condition attested to under

subparagraph (A)(iii) (relating to payment of registered nurses at

the prevailing wage rate), the Secretary shall order the facility to

provide for payment of such amounts of back pay as may be required to comply with such condition.
18

H.L.C.

ø(3) The Secretary of Labor shall provide for a process under

which a State may submit to the Secretary a plan for the recruitment and retention of United States citizens and immigrants who

are authorized to perform nursing services as registered nurses in

facilities in the State. Such a plan may include counseling and educating health workers and other individuals concerning the employment opportunities available to registered nurses. The Secretary

shall provide, on an annual basis in consultation with the Secretary of Health and Human Services, for the approval or disapproval of such a plan, for purposes of paragraph (2)(A)(iv)(II).

Such a plan may not be considered to be approved with respect to

the facility unless the plan provides for the taking of significant

steps described in paragraph (2)(A)(iv)(I) with respect to registered

nurses in the facility.

ø(4) The period of admission of an alien under section

101(a)(15)(H)(i)(a) shall be for an initial period of not to exceed 3

years, subject to an extension for a period or periods, not to exceed

a total period of admission of 5 years (or a total period of admission

of 6 years in the case of extraordinary circumstances, as determined by the Attorney General).

ø(5) For purposes of this subsection and section

101(a)(15)(H)(i)(a), the term ‘‘facility’’ includes an employer who

employs registered nurses in a home setting.¿

(m)(1) The qualifications referred to in section

101(a)(15)(H)(i)(c), with respect to an alien who is coming to the

United States to perform nursing services for a facility, are that the

alien—

(A) has obtained a full and unrestricted license to practice

professional nursing in the country where the alien obtained

nursing education or has received nursing education in the

United States;

(B) has passed an appropriate examination (recognized in

regulations promulgated in consultation with the Secretary of

Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the

State of intended employment; and

(C) is fully qualified and eligible under the laws (including

such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended

employment to engage in the practice of professional nursing as

a registered nurse immediately upon admission to the United

States and is authorized under such laws to be employed by the

facility.

(2)(A) The attestation referred to in section 101(a)(15)(H)(i)(c),

with respect to a facility for which an alien will perform services,

is an attestation as to the following:

(i) The facility meets all the requirements of paragraph (6).

(ii) The employment of the alien will not adversely affect

the wages and working conditions of registered nurses similarly

employed.

(iii) The alien employed by the facility will be paid the

wage rate for registered nurses similarly employed by the facility.
19

H.L.C.

(iv) The facility has taken and is taking timely and significant steps designed to recruit and retain sufficient registered

nurses who are United States citizens or immigrants who are

authorized to perform nursing services, in order to remove as

quickly as reasonably possible the dependence of the facility on

nonimmigrant registered nurses.

(v) There is not a strike or lockout in the course of a labor

dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing

of any visa petition, and the employment of such an alien is not

intended or designed to influence an election for a bargaining

representative for registered nurses of the facility.

(vi) At the time of the filing of the petition for registered

nurses under section 101(a)(15)(H)(i)(c), notice of the filing has

been provided by the facility to the bargaining representative of

the registered nurses at the facility or, where there is no such

bargaining representative, notice of the filing has been provided

to the registered nurses employed at the facility through posting

in conspicuous locations.

(vii) The facility will not, at any time, employ a number of

aliens issued visas or otherwise provided nonimmigrant status

under section 101(a)(15)(H)(i)(c) that exceeds 33 percent of the

total number of registered nurses employed by the facility.

(viii) The facility will not, with respect to any alien issued

a visa or otherwise provided nonimmigrant status under section

101(a)(15)(H)(i)(c)—

(I) authorize the alien to perform nursing services at

any worksite other than a worksite controlled by the facility; or

(II) transfer the place of employment of the alien from

one worksite to another.

Nothing in clause (iv) shall be construed as requiring a facility

to have taken significant steps described in such clause before

the date of the enactment of the Nursing Relief for Disadvantaged Areas Act of 1999. A copy of the attestation shall be provided, within 30 days of the date of filing, to registered nurses

employed at the facility on the date of filing.

(B) For purposes of subparagraph (A)(iv), each of the following

shall be considered a significant step reasonably designed to recruit

and retain registered nurses:

(i) Operating a training program for registered nurses at

the facility or financing (or providing participation in) a training program for registered nurses elsewhere.

(ii) Providing career development programs and other

methods of facilitating health care workers to become registered

nurses.

(iii) Paying registered nurses wages at a rate higher than

currently being paid to registered nurses similarly employed in

the geographic area.

(iv) Providing reasonable opportunities for meaningful salary advancement by registered nurses.

The steps described in this subparagraph shall not be considered to

be an exclusive list of the significant steps that may be taken to meet
20

H.L.C.

the conditions of subparagraph (A)(iv). Nothing in this subparagraph shall require a facility to take more than one step if the facility can demonstrate that taking a second step is not reasonable.

(C) Subject to subparagraph (E), an attestation under subparagraph (A)—

(i) shall expire on the date that is the later of—

(I) the end of the one-year period beginning on the date

of its filing with the Secretary of Labor; or

(II) the end of the period of admission under section

101(a)(15)(H)(i)(c) of the last alien with respect to whose

admission it was applied (in accordance with clause (ii));

and

(ii) shall apply to petitions filed during the one-year period

beginning on the date of its filing with the Secretary of Labor

if the facility states in each such petition that it continues to

comply with the conditions in the attestation.

(D) A facility may meet the requirements under this paragraph

with respect to more than one registered nurse in a single petition.

(E)(i) The Secretary of Labor shall compile and make available

for public examination in a timely manner in Washington, D.C., a

list identifying facilities which have filed petitions for nonimmigrants under section 101(a)(15)(H)(i)(c) and, for each such facility, a copy of the facility’s attestation under subparagraph (A)

(and accompanying documentation) and each such petition filed by

the facility.

(ii) The Secretary of Labor shall establish a process, including

reasonable time limits, for the receipt, investigation, and disposition

of complaints respecting a facility’s failure to meet conditions attested to or a facility’s misrepresentation of a material fact in an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining representatives, associations deemed

appropriate by the Secretary, and other aggrieved parties as determined under regulations of the Secretary). The Secretary shall conduct an investigation under this clause if there is reasonable cause

to believe that a facility fails to meet conditions attested to. Subject

to the time limits established under this clause, this subparagraph

shall apply regardless of whether an attestation is expired or unexpired at the time a complaint is filed.

(iii) Under such process, the Secretary shall provide, within 180

days after the date such a complaint is filed, for a determination

as to whether or not a basis exists to make a finding described in

clause (iv). If the Secretary determines that such a basis exists, the

Secretary shall provide for notice of such determination to the interested parties and an opportunity for a hearing on the complaint

within 60 days of the date of the determination.

(iv) If the Secretary of Labor finds, after notice and opportunity

for a hearing, that a facility (for which an attestation is made) has

failed to meet a condition attested to or that there was a misrepresentation of material fact in the attestation, the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies (including civil monetary

penalties in an amount not to exceed $1,000 per nurse per violation,

with the total penalty not to exceed $10,000 per violation) as the

Secretary determines to be appropriate. Upon receipt of such notice,
21

H.L.C.

the Attorney General shall not approve petitions filed with respect

to a facility during a period of at least one year for nurses to be employed by the facility.

(v) In addition to the sanctions provided for under clause (iv),

if the Secretary of Labor finds, after notice and an opportunity for

a hearing, that a facility has violated the condition attested to

under subparagraph (A)(iii) (relating to payment of registered

nurses at the prevailing wage rate), the Secretary shall order the facility to provide for payment of such amounts of back pay as may

be required to comply with such condition.

(F)(i) The Secretary of Labor shall impose on a facility filing an

attestation under subparagraph (A) a filing fee, in an amount prescribed by the Secretary based on the costs of carrying out the Secretary’s duties under this subsection, but not exceeding $250.

(ii) Fees collected under this subparagraph shall be deposited in

a fund established for this purpose in the Treasury of the United

States.

(iii) The collected fees in the fund shall be available to the Secretary of Labor, to the extent and in such amounts as may be provided in appropriations Acts, to cover the costs described in clause

(i), in addition to any other funds that are available to the Secretary

to cover such costs.

(3) The period of admission of an alien under section

101(a)(15)(H)(i)(c) shall be 3 years.

(4) The total number of nonimmigrant visas issued pursuant to

petitions granted under section 101(a)(15)(H)(i)(c) in each fiscal year

shall not exceed 500. The number of such visas issued for employment in each State in each fiscal year shall not exceed the following:

(A) For States with populations of less than 9,000,000,

based upon the 1990 decennial census of population, 25 visas.

(B) For States with populations of 9,000,000 or more, based

upon the 1990 decennial census of population, 50 visas.

(C) If the total number of visas available under this paragraph for a fiscal year quarter exceeds the number of qualified

nonimmigrants who may be issued such visas during those

quarters, the visas made available under this paragraph shall

be issued without regard to the numerical limitation under subparagraph (A) or (B) of this paragraph during the last fiscal

year quarter.

(5) A facility that has filed a petition under section

101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing

services for the facility—

(A) shall provide the nonimmigrant a wage rate and working conditions commensurate with those of nurses similarly employed by the facility;

(B) shall require the nonimmigrant to work hours commensurate with those of nurses similarly employed by the facility;

and

(C) shall not interfere with the right of the nonimmigrant

to join or organize a union.

(6) For purposes of this subsection and section

101(a)(15)(H)(i)(c), the term ‘‘facility’’ means a subsection (d) hospital (as defined in section 1886(d)(1)(B) of the Social Security Act

(42 U.S.C. 1395ww(d)(1)(B))) that meets the following requirements:
22

H.L.C.

(A) As of March 31, 1997, the hospital was located in a

health professional shortage area (as defined in section 332 of

the Public Health Service Act (42 U.S.C. 254e)).

(B) Based on its settled cost report filed under title XVIII

of the Social Security Act for its cost reporting period beginning

during fiscal year 1994—

(i) the hospital has not less than 190 licensed acute

care beds;

(ii) the number of the hospital’s inpatient days for such

period which were made up of patients who (for such days)

were entitled to benefits under part A of such title is not

less than 35 percent of the total number of such hospital’s

acute care inpatient days for such period; and

(iii) the number of the hospital’s inpatient days for

such period which were made up of patients who (for such

days) were eligible for medical assistance under a State

plan approved under title XIX of the Social Security Act, is

not less than 28 percent of the total number of such hospital’s acute care inpatient days for such period.

(7) For purposes of paragraph (2)(A)(v), the term ‘‘lay off’’,

with respect to a worker—

(A) means to cause the worker’s loss of employment,

other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or

contract; but

(B) does not include any situation in which the worker

is offered, as an alternative to such loss of employment, a

similar employment opportunity with the same employer at

equivalent or higher compensation and benefits than the

position from which the employee was discharged, regardless of whether or not the employee accepts the offer.

Nothing in this paragraph is intended to limit an employee’s or

an employer’s rights under a collective bargaining agreement or

other employment contract.

* * * * * * *

(r) Subsection (a)(5)(C) shall not apply to an alien who seeks to

enter the United States for the purpose of performing labor as a

nurse who presents to the consular officer (or in the case of an adjustment of status, the Attorney General) a certified statement from

the Commission on Graduates of Foreign Nursing Schools (or an

equivalent independent credentialing organization approved for the

certification of nurses under subsection (a)(5)(C) by the Attorney

General in consultation with the Secretary of Health and Human

Services) that—

(1) the alien has a valid and unrestricted license as a nurse

in a State where the alien intends to be employed and such

State verifies that the foreign licenses of alien nurses are authentic and unencumbered;

(2) the alien has passed the National Council Licensure Examination (NCLEX);

(3) the alien is a graduate of a nursing program—

(A) in which the language of instruction was English;

(B) located in a country—
23

H.L.C.

(i) designated by such commission not later than

30 days after the date of the enactment of the Nursing

Relief for Disadvantaged Areas Act of 1999, based on

such commission’s assessment that the quality of nursing education in that country, and the English language proficiency of those who complete such programs

in that country, justify the country’s designation; or

(ii) designated on the basis of such an assessment

by unanimous agreement of such commission and any

equivalent credentialing organizations which have been

approved under subsection (a)(5)(C) for the certification

of nurses under this subsection; and

(C)(i) which was in operation on or before the date of

the enactment of the Nursing Relief for Disadvantaged

Areas Act of 1999; or

(ii) has been approved by unanimous agreement of

such commission and any equivalent credentialing organizations which have been approved under subsection

(a)(5)(C) for the certification of nurses under this subsection.

* * * * * * *

Æ