II

107TH CONGRESS

1ST SESSION S. 1259

To amend the Immigration and Nationality Act with respect to the admission

of nonimmigrant nurses.

IN THE SENATE OF THE UNITED STATES

JULY 27, 2001

Mr. BROWNBACK (for himself, Mr. GRAHAM, and Mr. HELMS) introduced the

following bill; which was read twice and referred to the Committee on the

Judiciary

A BILL

To amend the Immigration and Nationality Act with respect

to the admission of nonimmigrant nurses.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Rural and Urban

5 Health Care Act of 2001’’.

6 SEC. 2. REQUIREMENTS FOR ADMISSION OF NON7 IMMIGRANT NURSES.

8 (a) REQUIREMENTS.—Section 212(m) of the Immi9 gration and Nationality Act (8 U.S.C. 1182(m)) is amend10 ed to read as follows:
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1 ‘‘(m)(1) The qualifications referred to in the section

2 101(a)(15)(i)(c), with respect to an alien who is coming

3 to the United States to perform nursing services for a fa4 cility, are that the alien—

5 ‘‘(A) has obtained a full and unrestricted li6 cense to practice professional nursing in the country

7 where the alien obtained nursing education, or has

8 received nursing education in the United States or

9 Canada;

10 ‘‘(B) has passed the examination given by the

11 Commission on Graduates of Foreign Nursing

12 Schools (or has passed another appropriate examina13 tion recognized in regulations promulgated in con14 sultation with the Secretary of Health and Human

15 Services), or has a full and unrestricted license

16 under State law to practice professional nursing in

17 the State of intended employment; and

18 ‘‘(C) is fully qualified and eligible under the

19 laws (including such temporary or interim licensing

20 requirements which authorize the nurse to be em21 ployed) governing the place of intended employment

22 to take the State licensure examination after entry

23 into the United States, and the lack of a social secu24 rity number shall not indicate a lack of eligibility to

25 take the State licensure examination.
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1 ‘‘(2)(A) The attestation referred to in section

2 101(a)(15)(H)(i)(c), with respect to a facility for which

3 an alien will perform services, is an attestation as to the

4 following:

5 ‘‘(i) The employment of the alien will not ad6 versely affect the wages and working conditions of

7 registered nurses similarly employed at the facility.

8 ‘‘(ii) The alien employed by the facility will be

9 paid the wage rate for registered nurses similarly

10 employed by the facility.

11 ‘‘(iii) There is not a strike or lockout in the

12 course of a labor dispute, the facility did not lay off

13 and will not lay off a registered staff nurse who pro14 vides patient care and who is employed by the facil15 ity within the period beginning 90 days before and

16 ending 90 days after the date of filing of any visa

17 petition for clarification of such an alien under sec18 tion 101(a)(15)(H)(i)(c), and the employment of

19 such an alien is not intended or designed to influ20 ence an election for a bargaining representative for

21 registered nurses of the facility.

22 ‘‘(iv) At the time of the filing of the petition for

23 registered nurses under section 101(a)(15)(H)(i)(c),

24 notice of the filing has been provided by the facility

25 to the bargaining representative of the registered
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1 nurses at the facility or, where there is no such bar2 gaining representative, notice of the filing has been

3 provided to the registered nurses employed by the

4 employer at the facility through posting in con5 spicuous locations.

6 ‘‘(v) The facility will not, with respect to any

7 alien issued a visa or otherwise provided non8 immigrant status under section

9 101(a)(15)(H)(i)(c)—

10 ‘‘(I) authorize the alien to perform nursing

11 services at any worksite other than a worksite

12 controlled by the facility; or

13 ‘‘(II) transfer the place of employment of

14 the alien from one worksite to another.

15 ‘‘(B) A copy of the attestation shall be provided, with16 in 30 days of the date of filing, to registered nurses em17 ployed at the facility on the date of filing.

18 ‘‘(C) The Secretary of Labor shall review an attesta19 tion only for completeness and obvious inaccuracies. Un20 less the Secretary finds that the attestation is incomplete

21 or obviously inaccurate, the Secretary shall certify the at22 testation within 7 calendar days of the date of the filing

23 of the attestation. If the attestation is not returned to the

24 facility within 7 calendar days, the attestation shall be

25 deemed certified.
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1 ‘‘(D) Subject to subparagraph (F), an attestation

2 under subparagraph (A)—

3 ‘‘(i) shall expire on the date that is the later

4 of—

5 ‘‘(I) the end of the three-year period begin6 ning on the date of its filing with the Secretary;

7 or

8 ‘‘(II) the end of the period of admission

9 under section 101(a)(15)(H)(i)(c) of the last

10 alien with respect to whose admission it was ap11 plied (in accordance with clause (ii)); and

12 ‘‘(ii) shall apply to petitions filed during the

13 three-year period beginning on the date of its filing

14 with the Secretary if the facility states in each such

15 petition that it continues to comply with the condi16 tions in the attestation.

17 ‘‘(E) A facility may meet the requirements under this

18 paragraph with respect to more than one registered nurse

19 in a single petition.

20 ‘‘(F)(i) The Secretary shall compile and make avail21 able for public examination in a timely manner in Wash22 ington, D.C., a list identifying facilities which have filed

23 petitions for classification of nonimmigrants under section

24 101(a)(15)(H)(i)(c) and, for each such facility, a copy of
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1 the facility’s attestation under subparagraph (A) and each

2 such petition filed by the facility.

3 ‘‘(ii) The Secretary shall establish a process, includ4 ing reasonable time limits, for the receipt, investigation,

5 and disposition of complaints respecting a facility’s failure

6 to meet conditions attested to or a facility’s misrepresenta7 tion of a material fact in an attestation. Complaints may

8 be filed by any aggrieved person or organization (including

9 bargaining representatives, associations deemed appro10 priate by the Secretary, and other aggrieved parties as de11 termined under regulations of the Secretary, but excluding

12 any governmental agency or entity). The Secretary shall

13 conduct an investigation under this clause if there is prob14 able cause to believe that a facility willfully failed to meet

15 conditions attested to. Subject to the time limits estab16 lished under this clause, this subparagraph shall apply re17 gardless of whether or not an attestation is expired or un18 expired at the time a complaint is filed.

19 ‘‘(iii) Under such process, the Secretary shall provide,

20 within 180 days after the date such a complaint is filed,

21 for a determination as to whether or not a basis exists

22 to make a finding described in clause (iv). If the Secretary

23 determines that such a basis exists, the Secretary shall

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

2 within 60 days of the date of the determination.

3 ‘‘(iv) If the Secretary finds, after notice and oppor4 tunity for a hearing, that a facility (for which an attesta5 tion is made) has willfully failed to meet a condition at6 tested to or that there was a willful misrepresentation of

7 material fact in the attestation, the Secretary shall notify

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

9 impose such other administrative remedies (including civil

10 monetary penalties in an amount not to exceed $1,000 per

11 nurse per violation, with the total penalty not to exceed

12 $10,000 per violation) as the Secretary determines to be

13 appropriate. Upon receipt of such notice, the Attorney

14 General shall not approve petitions filed with respect to

15 a facility during a period of at least one year for nurses

16 to be employed by the facility.

17 ‘‘(v) In addition to the sanctions provided for under

18 clause (iv), if the Secretary finds, after notice and an op19 portunity for a hearing, that a facility has violated the

20 condition attested to under subparagraph (A)(ii) (relating

21 to payment of registered nurses at the facility wage rate),

22 the Secretary shall order the facility to provide for pay23 ment of such amounts of back pay as may be required

24 to comply with such condition.
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1 ‘‘(G)(i) The Secretary shall impose on a facility filing

2 an attestation under subparagraph (A) a filing fee in an

3 amount prescribed by the Secretary based on the costs of

4 carrying out the Secretary’s duties under this subsection,

5 but not exceeding $250.

6 ‘‘(ii) Fees collected under this subparagraph shall be

7 deposited in a fund established for this purpose in the

8 Treasury of the United States.

9 ‘‘(iii) The collected fees in the fund shall be available

10 to the Secretary, to the extent and in such amounts as

11 may be provided in appropriations Acts, to cover the costs

12 described in clause (i), in addition to any other funds that

13 are available to the Secretary to cover such costs.

14 ‘‘(3) The period of admission of an alien under sec15 tion 101(a)(15)(H)(i)(c) shall be for an initial period not

16 to exceed three years, subject to an extension for a period

17 or periods not to exceed a total period of admission of

18 six years.

19 ‘‘(4) A facility that has filed a petition under section

20 101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform

21 nursing services for the facility—

22 ‘‘(A) shall provide the nonimmigrant a wage

23 rate and working conditions commensurate with

24 those of nurses similarly employed by the facility;

25 and
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1 ‘‘(B) shall not interfere with the right of the

2 nonimmigrant to join or organize a union.

3 ‘‘(5)(A) For purposes of paragraph (2)(A)(iii), the

4 term ‘lay off’, with respect to a worker—

5 ‘‘(i) means to cause the worker’s loss of employ6 ment, other than through a discharge for inadequate

7 performance, violation of workplace rules, cause, vol8 untary departure, voluntary retirement, or the expi9 ration of a grant or contract; but

10 ‘‘(ii) does not include any situation in which the

11 worker is offered, as an alternative to such loss of

12 employment, a similar employment opportunity with

13 the same employer at equivalent or higher com14 pensation and benefits than the position from which

15 the employee was discharged, regardless of whether

16 or not the employee accepts the offer.

17 ‘‘(B) Nothing in this paragraph is intended to limit

18 an employee’s or an employer’s rights under a collective

19 bargaining agreement or other employment contract.

20 ‘‘(6) For purposes of this subsection and section

21 101(a)(15)(H)(i)(c), the term ‘facility’ includes a hospital,

22 nursing home, skilled nursing facility, registry, clinic, as23 sisted-living center, and an employer who employs any reg24 istered nurse in a home setting.
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1 ‘‘(7) Except as otherwise provided, in this subsection,

2 the term ‘Secretary’ means the Secretary of Labor.’’.

3 (b) IMPLEMENTATION.—Not later than 90 days after

4 the date of the enactment of this Act, the Secretary of

5 Labor (in consultation, to the extent required, with the

6 Secretary of Health and Human Services) and the Attor7 ney General shall promulgate final or interim final regula8 tions to carry out section 212(m) of the Immigration and

9 Nationality Act (as amended by subsection (a)) The

10 amendments made by this section shall take effect not

11 later than 90 days after the date of the enactment of this

12 Act, without regard to whether or not regulations to carry

13 out such amendments have been promulgated by such

14 date.

15 SEC. 3. REPEAL.

16 Section 3 of the Nursing Relief for Disadvantaged

17 Areas Act of 1999 (Public Law 106–95; 8 U.S.C. 1182

18 note; relating to recommendations for alternative remedy

19 for nursing shortage) is repealed.

20 SEC. 4. QUALIFICATION FOR CERTAIN ALIEN NURSES.

21 (a) ELIMINATION OF CERTAIN GROUNDS OF

22 INADMISSABILITY.—Section 212 of the Immigration and

23 Nationality Act (8 U.S.C. 1182) is amended by striking

24 subsections (a)(5)(C) and (r).
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1 (b) PROCEDURE FOR GRANTING IMMIGRANT STA2 TUS.—Section 204(a)(1)(F) of the Immigration and Na3 tionality Act (8 U.S.C. 1154(a)(1)(F)) is amended by add4 ing at the end the following new sentence: ‘‘Any such peti5 tion filed on behalf of an alien who will be employed as

6 a professional nurse shall include evidence that the alien—

7 ‘‘(i) has passed—

8 ‘‘(I) the examination given by the

9 Commission on Graduates of Foreign

10 Nursing Schools (CGFNS); or

11 ‘‘(II) another appropriate exam12 ination recognized in regulations pro13 mulgated in consultation with the Sec14 retary of Health and Human Services;

15 or

16 ‘‘(ii) holds a full and unrestricted li17 cense to practice professional nursing in

18 the State of intended employment.’’.

19 SEC. 5. WAIVERS OF TWO-YEAR FOREIGN RESIDENCE RE20 QUIREMENT.

21 (a) IN GENERAL.—Section 214(l) of the Immigration

22 and Nationality Act (8 U.S.C. 1184(l)) is amended—

23 (1) in paragraph (1)(B), by striking ‘‘20’’ and

24 inserting ‘‘40, plus the number of waivers specified

25 in paragraph (4)’’; and
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1 (2) by adding at the end the following new

2 paragraph:

3 ‘‘(4) The number of waivers specified in this para4 graph is the total number of unused waivers allotted to

5 all States for a fiscal year divided by the number of States

6 having no unused waivers remaining in the allotment to

7 those States for that fiscal year.’’.

8 (b) ELIMINATION OF TERMINATION DATE.—Section

9 220(c) of the Immigration and Nationality Technical Cor10 rections Act of 1994 (Public Law 103–416, as amended;

11 8 U.S.C.1182 note) is amended by striking ‘‘and before

12 June 1, 2002’’.

13 SEC. 6. OTHER MEASURES TO MEET RURAL AND URBAN

14 HEALTH CARE NEEDS.

15 (a) GRANT AUTHORITY.—The Secretary of Health

16 and Human Services shall award grants to States, local

17 governments, and institutions of higher education (as de18 fined in section 101(a) of the Higher Education Act of

19 1965) to fund training, recruitment, and other activities

20 to increase the supply of domestic registered nurses and

21 other needed health care providers.

22 (b) APPLICATION.—

23 (1) IN GENERAL.—Each eligible entity desiring

24 a grant under this section shall submit an applica25 tion to the Secretary of Health and Human Services
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1 at such time, in such manner, and accompanied by

2 such information as the Secretary may reasonably

3 require.

4 (2) CONTENTS.—Each application submitted

5 pursuant to paragraph (1) shall—

6 (A) describe the activities for which assist7 ance under this section is sought; and

8 (B) provide such additional assurances as

9 the Secretary of Health and Human Services

10 determines to be essential to ensure compliance

11 with the requirements of this section.

12 (c) AUTHORIZATION OF APPROPRIATIONS.—There

13 are authorized to be appropriated to the Department of

14 Health and Human Services such sums as may be nec15 essary to carry out this section.

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