II

106TH CONGRESS

1ST SESSION S. 455

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.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 24, 1999

Mr. DURBIN (for himself and Mrs. HUTCHISON) 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 requirements for the admission of nonimmigrant

nurses who will practice in health professional shortage

areas.

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 ‘‘Nursing Relief for Dis5 advantaged Areas Act of 1999’’.
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1 SEC. 2. REQUIREMENTS FOR ADMISSION OF NON2 IMMIGRANT NURSES IN HEALTH PROFES3 SIONAL SHORTAGE AREAS DURING 4-YEAR

4 PERIOD.

5 (a) ESTABLISHMENT OF A NEW NONIMMIGRANT

6 CLASSIFICATION FOR NONIMMIGRANT NURSES IN

7 HEALTH PROFESSIONAL SHORTAGE AREAS.—Section

8 101(a)(15)(H)(i) of the Immigration and Nationality Act

9 (8 U.S.C. 1101(a)(15)(H)(i)) is amended by striking ‘‘;

10 or’’ at the end and inserting the following: ‘‘, or (c) who

11 is coming temporarily to the United States to perform

12 services as a registered nurse, who meets the qualifications

13 described in section 212(m)(1), and with respect to whom

14 the Secretary of Labor determines and certifies to the At15 torney General that an unexpired attestation is on file and

16 in effect under section 212(m)(2) for the facility (as de17 fined in section 212(m)(6)) for which the alien will per18 form the services; or’’.

19 (b) REQUIREMENTS.—Section 212(m) of the Immi20 gration and Nationality Act (8 U.S.C. 1182(m)) is amend21 ed to read as follows:

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

23 101(a)(15)(H)(i)(c), with respect to an alien who is com24 ing to the United States to perform nursing services for

25 a facility, are that the alien—
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1 ‘‘(A) has obtained a full and unrestricted li2 cense to practice professional nursing in the country

3 where the alien obtained nursing education or has

4 received nursing education in the United States;

5 ‘‘(B) has passed an appropriate examination

6 (recognized in regulations promulgated in consulta7 tion with the Secretary of Health and Human Serv8 ices) or has a full and unrestricted license under

9 State law to practice professional nursing in the

10 State of intended employment; and

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

12 laws (including such temporary or interim licensing

13 requirements which authorize the nurse to be em14 ployed) governing the place of intended employment

15 to engage in the practice of professional nursing as

16 a registered nurse immediately upon admission to

17 the United States and is authorized under such laws

18 to be employed by the facility.

19 ‘‘(2)(A) The attestation referred to in section

20 101(a)(15)(H)(i)(c), with respect to a facility for which

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

22 following:

23 ‘‘(i) The facility meets all the requirements of

24 paragraph (6).
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1 ‘‘(ii) The employment of the alien will not ad2 versely affect the wages and working conditions of

3 registered nurses similarly employed.

4 ‘‘(iii) The alien employed by the facility will be

5 paid the wage rate for registered nurses similarly

6 employed by the facility.

7 ‘‘(iv) The facility has taken and is taking timely

8 and significant steps designed to recruit and retain

9 sufficient registered nurses who are United States

10 citizens or immigrants who are authorized to per11 form nursing services, in order to remove as quickly

12 as reasonably possible the dependence of the facility

13 on nonimmigrant registered nurses.

14 ‘‘(v) There is not a strike or lockout in the

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

16 and will not lay off a registered nurse employed by

17 the facility within the period beginning 90 days be18 fore and ending 90 days after the date of filing of

19 any visa petition, and the employment of such an

20 alien is not intended or designed to influence an

21 election for a bargaining representative for reg22 istered nurses of the facility.

23 ‘‘(vi) At the time of the filing of the petition for

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

25 notice of the filing has been provided by the facility
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1 to the bargaining representative of the registered

2 nurses at the facility or, where there is no such bar3 gaining representative, notice of the filing has been

4 provided to the registered nurses employed at the

5 facility through posting in conspicuous locations.

6 ‘‘(vii) The facility will not, at any time, employ

7 a number of aliens issued visas or otherwise pro8 vided nonimmigrant status under section

9 101(a)(15)(H)(i)(c) that exceeds 33 percent of the

10 total number of registered nurses employed by the

11 facility.

12 ‘‘(viii) The facility will not, with respect to any

13 alien issued a visa or otherwise provided non14 immigrant status under section

15 101(a)(15)(H)(i)(c)—

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

17 services at any worksite other than a worksite

18 controlled by the facility; or

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

20 the alien from one worksite to another.

21 Nothing in clause (iv) shall be construed as requir22 ing a facility to have taken significant steps de23 scribed in such clause before the date of the enact24 ment of the Nursing Relief for Disadvantaged Areas

25 Act of 1999. A copy of the attestation shall be pro-
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1 vided, within 30 days of the date of filing, to reg2 istered nurses employed at the facility on the date

3 of filing.

4 ‘‘(B) For purposes of subparagraph (A)(iv), each of

5 the following shall be considered a significant step reason6 ably designed to recruit and retain registered nurses:

7 ‘‘(i) Operating a training program for reg8 istered nurses at the facility or financing (or provid9 ing participation in) a training program for reg10 istered nurses elsewhere.

11 ‘‘(ii) Providing career development programs

12 and other methods of facilitating health care work13 ers to become registered nurses.

14 ‘‘(iii) Paying registered nurses wages at a rate

15 higher than currently being paid to registered nurses

16 similarly employed in the geographic area.

17 ‘‘(iv) Providing reasonable opportunities for

18 meaningful salary advancement by registered nurses.

19 The steps described in this subparagraph shall not be con20 sidered to be an exclusive list of the significant steps that

21 may be taken to meet the conditions of subparagraph

22 (A)(iv). Nothing in this subparagraph shall require a facil23 ity to take more than one step if the facility can dem24 onstrate that taking a second step is not reasonable.
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1 ‘‘(C) Subject to subparagraph (E), 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 one-year period begin6 ning on the date of its filing with the Secretary

7 of Labor; 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 one-year period beginning on the date of its filing

14 with the Secretary of Labor if the facility states in

15 each such petition that it continues to comply with

16 the conditions in the attestation.

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

18 paragraph with respect to more than one registered nurse

19 in a single petition.

20 ‘‘(E)(i) The Secretary of Labor shall compile and

21 make available for public examination in a timely manner

22 in Washington, D.C., a list identifying facilities which

23 have filed petitions for nonimmigrants under section

24 101(a)(15)(H)(i)(c) and, for each such facility, a copy of

25 the facility’s attestation under subparagraph (A) (and ac-
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1 companying documentation) and each such petition filed

2 by the facility.

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

4 including reasonable time limits, for the receipt, investiga5 tion, and disposition of complaints respecting a facility’s

6 failure to meet conditions attested to or a facility’s mis7 representation of a material fact in an attestation. Com8 plaints may be filed by any aggrieved person or organiza9 tion (including bargaining representatives, associations

10 deemed appropriate by the Secretary, and other aggrieved

11 parties as determined under regulations of the Secretary).

12 The Secretary shall conduct an investigation under this

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

14 fails to meet conditions attested to. Subject to the time

15 limits established under this clause, this subparagraph

16 shall apply regardless of whether an attestation is expired

17 or unexpired at the time a complaint is filed.

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

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

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

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

22 determines that such a basis exists, the Secretary shall

23 provide for notice of such determination to the interested

24 parties and an opportunity for a hearing on the complaint

25 within 60 days of the date of the determination.
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1 ‘‘(iv) If the Secretary of Labor finds, after notice and

2 opportunity for a hearing, that a facility (for which an

3 attestation is made) has failed to meet a condition attested

4 to or that there was a misrepresentation of material fact

5 in the attestation, the Secretary shall notify the Attorney

6 General of such finding and may, in addition, impose such

7 other administrative remedies (including civil monetary

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

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

10 per violation) as the Secretary determines to be appro11 priate. Upon receipt of such notice, the Attorney General

12 shall not approve petitions filed with respect to a facility

13 during a period of at least one year for nurses to be em14 ployed by the facility.

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

16 clause (iv), if the Secretary of Labor finds, after notice

17 and an opportunity for a hearing, that a facility has vio18 lated the condition attested to under subparagraph (A)(iii)

19 (relating to payment of registered nurses at the prevailing

20 wage rate), the Secretary shall order the facility to provide

21 for payment of such amounts of back pay as may be re22 quired to comply with such condition.

23 ‘‘(F)(i) The Secretary of Labor shall impose on a fa24 cility filing an attestation under subparagraph (A) a filing

25 fee, in an amount prescribed by the Secretary based on
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1 the costs of carrying out the Secretary’s duties under this

2 subsection, but not exceeding $250.

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

4 deposited in a fund established for this purpose in the

5 Treasury of the United States.

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

7 to the Secretary of Labor, to the extent and in such

8 amounts as may be provided in appropriations Acts, to

9 cover the costs described in clause (i), in addition to any

10 other funds that are available to the Secretary to cover

11 such costs.

12 ‘‘(3) The period of admission of an alien under sec13 tion 101(a)(15)(H)(i)(c) shall be 3 years.

14 ‘‘(4) The total number of nonimmigrant visas issued

15 pursuant to petitions granted under section

16 101(a)(15)(H)(i)(c) in each fiscal year shall not exceed

17 500. The number of such visas issued for employment in

18 each State in each fiscal year shall not exceed the follow19 ing:

20 ‘‘(A) For States with populations of less than

21 9,000,000, based upon the 1990 decennial census of

22 population, 25 visas.

23 ‘‘(B) For States with populations of 9,000,000

24 or more, based upon the 1990 decennial census of

25 population, 50 visas.
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1 ‘‘(C) If the total number of visas available

2 under this paragraph for a fiscal year quarter ex3 ceeds the number of qualified nonimmigrants who

4 may be issued such visas during those quarters, the

5 visas made available under this paragraph shall be

6 issued without regard to the numerical limitation

7 under subparagraph (A) or (B) of this paragraph

8 during the last fiscal year quarter.

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

10 101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform

11 nursing services for the facility—

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

13 rate and working conditions commensurate with

14 those of nurses similarly employed by the facility;

15 ‘‘(B) shall require the nonimmigrant to work

16 hours commensurate with those of nurses similarly

17 employed by the facility; and

18 ‘‘(C) shall not interfere with the right of the

19 nonimmigrant to join or organize a union.

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

21 101(a)(15)(H)(i)(c), the term ‘facility’ means a subsection

22 (d) hospital (as defined in section 1886(d)(1)(B) of the

23 Social Security Act (42 U.S.C. 1395ww(d)(1)(B))) that

24 meets the following requirements:
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1 ‘‘(A) As of March 31, 1997, the hospital was lo2 cated in a health professional shortage area (as de3 fined in section 332 of the Public Health Service Act

4 (42 U.S.C. 254e)).

5 ‘‘(B) Based on its settled cost report filed

6 under title XVIII of the Social Security Act for its

7 cost reporting period beginning during fiscal year

8 1994—

9 ‘‘(i) the hospital has not less than 190 li10 censed acute care beds;

11 ‘‘(ii) the number of the hospital’s inpatient

12 days for such period which were made up of pa13 tients who (for such days) were entitled to ben14 efits under part A of such title is not less than

15 35 percent of the total number of such hos16 pital’s acute care inpatient days for such pe17 riod; and

18 ‘‘(iii) the number of the hospital’s inpa19 tient days for such period which were made up

20 of patients who (for such days) were eligible for

21 medical assistance under a State plan approved

22 under title XIX of the Social Security Act, is

23 not less than 28 percent of the total number of

24 such hospital’s acute care inpatient days for

25 such period.
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1 ‘‘(7) For purposes of paragraph (2)(A)(v), the

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

3 ‘‘(A) means to cause the worker’s loss of

4 employment, other than through a discharge for

5 inadequate performance, violation of workplace

6 rules, cause, voluntary departure, voluntary re7 tirement, or the expiration of a grant or con8 tract; but

9 ‘‘(B) does not include any situation in

10 which the worker is offered, as an alternative to

11 such loss of employment, a similar employment

12 opportunity with the same employer at equiva13 lent or higher compensation and benefits than

14 the position from which the employee was dis15 charged, regardless of whether or not the em16 ployee accepts the offer.

17 Nothing in this paragraph is intended to limit an

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

19 bargaining agreement or other employment con20 tract.’’.

21 (c) REPEALER.—Clause (i) of section 101(a)(15)(H)

22 of the Immigration and Nationality Act (8 U.S.C.

23 1101(a)(15)(H)(i)) is amended by striking subclause (a).

24 (d) IMPLEMENTATION.—Not later than 90 days after

25 the date of enactment of this Act, the Secretary of Labor
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1 (in consultation, to the extent required, with the Secretary

2 of Health and Human Services) and the Attorney General

3 shall promulgate final or interim final regulations to carry

4 out section 212(m) of the Immigration and Nationality

5 Act (as amended by subsection (b)).

6 (e) LIMITING APPLICATION OF NONIMMIGRANT

7 CHANGES TO 4-YEAR PERIOD.—The amendments made

8 by this section shall apply to classification petitions filed

9 for nonimmigrant status only during the 4-year period be10 ginning on the date that interim or final regulations are

11 first promulgated under subsection (d).

12 SEC. 3. RECOMMENDATIONS FOR ALTERNATIVE REMEDY

13 FOR NURSING SHORTAGE.

14 Not later than the last day of the 4-year period de15 scribed in section 2(e), the Secretary of Health and

16 Human Services and the Secretary of Labor shall jointly

17 submit to the Congress recommendations (including legis18 lative specifications) with respect to the following:

19 (1) A program to eliminate the dependence of

20 facilities described in section 212(m)(6) of the Immi21 gration and Nationality Act (as amended by section

22 2(b)) on nonimmigrant registered nurses by provid23 ing for a permanent solution to the shortage of reg24 istered nurses who are United States citizens or

25 aliens lawfully admitted for permanent residence.
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1 (2) A method of enforcing the requirements im2 posed on facilities under sections

3 101(a)(15)(H)(i)(c) and 212(m) of the Immigration

4 and Nationality Act (as amended by section 2) that

5 would be more effective than the process described

6 in section 212(m)(2)(E) of such Act (as so amend7 ed).

8 SEC. 4. CERTIFICATION FOR CERTAIN ALIEN NURSES.

9 (a) IN GENERAL.—

10 (1) Section 212 of the Immigration and Nation11 ality Act (8 U.S.C. 1182) is amended by adding at

12 the end the following new subsection:

13 ‘‘(r) Subsection (a)(5)(C) shall not apply to an alien

14 who seeks to enter the United States for the purpose of

15 performing labor as a nurse who presents to the consular

16 officer (or in the case of an adjustment of status, the At17 torney General) a certified statement from the Commis18 sion on Graduates of Foreign Nursing Schools (or an

19 equivalent independent credentialing organization ap20 proved for the certification of nurses under subsection

21 (a)(5)(C) by the Attorney General in consultation with the

22 Secretary of Health and Human Services) that—

23 ‘‘(1) the alien has a valid and unrestricted li24 cense as a nurse in a State where the alien intends

25 to be employed and such State verifies that the for-
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1 eign licenses of alien nurses are authentic and

2 unencumbered;

3 ‘‘(2) the alien has passed the National Council

4 Licensure Examination (NCLEX);

5 ‘‘(3) the alien is a graduate of a nursing

6 program—

7 ‘‘(A) in which the language of instruction

8 was English;

9 ‘‘(B) located in a country—

10 ‘‘(i) designated by such commission

11 not later than 30 days after the date of the

12 enactment of the Nursing Relief for Dis13 advantaged Areas Act of 1999, based on

14 such commission’s assessment that the

15 quality of nursing education in that coun16 try, and the English language proficiency

17 of those who complete such programs in

18 that country, justify the country’s designa19 tion; or

20 ‘‘(ii) designated on the basis of such

21 an assessment by unanimous agreement of

22 such commission and any equivalent

23 credentialing organizations which have

24 been approved under subsection (a)(5)(C)
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1 for the certification of nurses under this

2 subsection; and

3 ‘‘(C)(i) which was in operation on or before

4 the date of the enactment of the Nursing Relief

5 for Disadvantaged Areas Act of 1999; or

6 ‘‘(ii) has been approved by unanimous

7 agreement of such commission and any equiva8 lent credentialing organizations which have

9 been approved under subsection (a)(5)(C) for

10 the certification of nurses under this sub11 section.’’.

12 (2) Section 212(a)(5)(C) of the Immigration

13 and Nationality Act (8 U.S.C. 1182(a)(5)(C)) is

14 amended by striking ‘‘Any alien who seeks’’ and in15 serting ‘‘Subject to subsection (r), any alien who

16 seeks’’.

17 (b) EFFECTIVE DATE.—The amendments made by

18 subsection (a) shall take effect on the date of the enact19 ment of this Act, without regard to whether or not final

20 regulations to carry out such amendments have been pro21 mulgated by such date.

22 (c) ISSUANCE OF CERTIFIED STATEMENTS.—The

23 Commission on Graduates of Foreign Nursing Schools, or

24 any approved equivalent independent credentialing organi25 zation, shall issue certified statements pursuant to the
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1 amendment under subsection (a) not more than 35 days

2 after the receipt of a complete application for such a state3 ment.

Æ