II

105TH CONGRESS

2D SESSION S. 2210

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

JUNE 24, 1998

Mr. DURBIN 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 1998’’.
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1 SEC. 2. REQUIREMENTS FOR ADMISSION OF NON-IMMI2 GRANT NURSES IN HEALTH PROFESSIONAL

3 SHORTAGE AREAS DURING 4-YEAR PERIOD.

4 (a) ESTABLISHMENT OF A NEW NONIMMIGRANT

5 CLASSIFICATION FOR NONIMMIGRANT NURSES IN

6 HEALTH PROFESSIONAL SHORTAGE AREAS.—Section

7 101(a)(15)(H)(i) of the Immigration and Nationality Act

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

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

10 is coming temporarily to the United States to perform

11 services as a registered nurse, who meets the qualifications

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

13 the Secretary of Labor determines and certifies to the At14 torney General that an unexpired attestation is on file and

15 in effect under section 212(m)(2) for the facility (as de16 fined in section 212(m)(6)) for which the alien will per17 form the services; or’’.

18 (b) REQUIREMENTS.—Section 212(m) of the Immi19 gration and Nationality Act (8 U.S.C. 1182(m)) is amend20 ed to read as follows:

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

22 101(a)(15)(H)(i)(c), with respect to alien who is coming

23 to the United States to perform nursing services for a fa24 cility, are that the alien—

25 ‘‘(A) has obtained a full and unrestricted li26 cense to practice professional nursing in the country
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1 where the alien obtained nursing education or has

2 received nursing education in the United States;

3 ‘‘(B) has passed an appropriate examination

4 (recognized in regulations promulgated in consulta5 tion with the Secretary of Health and Human Serv6 ices) or has a full and unrestricted license under

7 State law to practice professional nursing in the

8 State of intended employment; and

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

10 laws (including such temporary or interim licensing

11 requirements which authorize the nurse to be em12 ployed) governing the place of intended employment

13 to engage in the practice of professional nursing as

14 a registered nurse immediately upon admission to

15 the United States and is authorized under such laws

16 to be employed by the facility.

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

18 101(a)(15)(H)(i)(c), with respect to a facility for which

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

20 following:

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

22 paragraph (6).

23 ‘‘(ii) The employment of the alien will not ad24 versely affect the wages and working conditions of

25 registered nurses similarly employed.
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1 ‘‘(iii) The alien employed by the facility will be

2 paid the wage rate for registered nurses similarly

3 employed by the facility.

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

5 and significant steps designed to recruit and retain

6 sufficient registered nurses who are United States

7 citizens or immigrants who are authorized to per8 form nursing services, in order to remove as quickly

9 as reasonably possible the dependence of the facility

10 on nonimmigrant registered nurses.

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

12 course of a labor dispute, the facility has not laid off

13 registered nurses within the previous year other than

14 termination for cause, and the employment of such

15 an alien is not intended or designed to influence an

16 election for a bargaining representative for reg17 istered nurses of the facility.

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

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

20 notice of the filing has been provided by the facility

21 to the bargaining representative of the registered

22 nurses at the facility or, where there is no such bar23 gaining representative, notice of the filing has been

24 provided to the registered nurses employed at the fa25 cility through posting in conspicuous locations.
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1 ‘‘(vii) The facility will not, at any time, employ

2 a number of aliens issued visas or otherwise pro3 vided nonimmigrant status under section

4 101(a)(15)(H)(i)(c) that exceeds 33 percent of the

5 total number of registered nurses employed by the

6 facility.

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

8 alien issued a visa or otherwise provided non-immi9 grant status under section 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 Nothing in clause (iv) shall be construed as requiring a

16 facility to have taken significant steps described in such

17 clause before the date of the enactment of the Health Pro18 fessional Shortage Area Nursing Relief Act of 1998. A

19 copy of the attestation shall be provided, within 30 days

20 of the date of filing, to registered nurses employed at the

21 facility on the date of the filing.

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

23 the following shall be considered a significant step reason24 ably designed to recruit and retain registered nurses:
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1 ‘‘(i) Operating a training program for reg2 istered nurses at the facility or financing (or provid3 ing participation in) a training program for reg4 istered nurses elsewhere.

5 ‘‘(ii) Providing career development programs

6 and other methods of facilitating health care work7 ers to become registered nurses.

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

9 higher than currently being paid to registered nurses

10 similarly employed in the geographic area.

11 ‘‘(iv) Providing adequate support services to

12 free registered nurses from administrative and other

13 non-nursing duties.

14 ‘‘(v) Providing reasonable opportunities for

15 meaningful salary advancement by registered nurses.

16 The steps described in this subparagraph shall not be con17 sidered to be an exclusive list of the significant steps that

18 may be taken to meet the conditions of subparagraph

19 (A)(iv). Nothing in this subparagraph shall require a facil20 ity to take more than one step if the facility can dem21 onstrate, and the Attorney General determines, that tak22 ing a second step is not reasonable.

23 ‘‘(C) Subject to subparagraph (E), an attestation

24 under subparagraph (A)—
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1 ‘‘(i) shall expire on the date that is the later

2 of—

3 ‘‘(I) the end of the one-year period begin4 ning of the date of its filing with the Secretary

5 of Labor; or

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

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

8 alien with respect to whose admission it was ap9 plied (in accordance with clause (ii)); and

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

11 one-year period beginning on the date of its filing

12 with the Secretary of Labor if the facility states in

13 each such petition that it continues to comply with

14 the conditions in the attestation.

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

16 paragraph with respect to more than one registered nurse

17 in a single petition.

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

19 make available for public examination in a timely manner

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

21 have filed petitions for nonimmigrants under section

22 101(a)(15)(H)(i)(c) and, for each such facility, a copy of

23 the facility’s attestation under subparagraph (A) (and ac24 companying documentation) and each such petition filed

25 by the facility.
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1 ‘‘(ii) The Secretary of Labor shall establish a process,

2 including reasonable time limits, for the receipt, investiga3 tion, and disposition of complaints respecting a facility’s

4 failure to meet conditions attested to or a facility’s mis5 representation of a material fact in an attestation. Com6 plaints may be filed by any aggrieved person or organiza7 tion (including bargaining representatives, associations

8 deemed appropriate by the Secretary, and other aggrieved

9 parties as determined under regulations of the Secretary).

10 The Secretary shall conduct an investigation under this

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

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

13 limits established under this clause, this subparagraph

14 shall apply regardless of whether an attestation is expired

15 or unexpired at the time a complaint is filed.

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

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

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

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

20 determines that such a basis exists, the Secretary shall

21 provide for notice of such determination to the interested

22 parties and an opportunity for a hearing on the complaint

23 within 60 days of the date of the determination.

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

25 opportunity for a hearing, that a facility (for which an
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1 attestation is made) has failed to meet a condition attested

2 to or that there was a misrepresentation of material fact

3 in the attestation, the Secretary shall notify the Attorney

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

5 an administrative remedies (including civil monetary pen6 alties in an amount not to exceed $1,000 per nurse per

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

8 violation) as the Secretary determines to be appropriate.

9 Upon receipt of such notice, the Attorney General shall

10 not approve petitions filed with respect to a facility during

11 a period of at least one year for nurses to be employed

12 by the facility.

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

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

15 and an opportunity for a hearing that, a facility has vio16 lated the condition attested to under subparagraph (A)(iii)

17 (relating to payment of registered nurses at the prevailing

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

19 for payment of such amounts of back pay as may be re20 quired to comply with such condition.

21 ‘‘(F)(i) The Secretary of Labor shall impose on a fa22 cility filing an attestation under subparagraph (A) a filing

23 fee, in an amount prescribed by the Secretary based on

24 the costs of carrying out the Secretary’s duties under this

25 subsection, but not exceeding $250.
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1 ‘‘(ii) Fees collected under this subparagraph shall be

2 deposited in a fund established for this purpose in the

3 Treasury of the United States.

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

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

6 amounts as may be provided in appropriations Acts, to

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

8 other funds that are available to the Secretary to cover

9 such costs.

10 ‘‘(3) The period of admission of an alien under sec11 tion 101(a)(15)(H)(i)(c) shall be 3 years.

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

13 pursuant to petitions granted under section

14 101(a)(15)(H)(i)(c) in each fiscal year shall not exceed

15 500. The number of petitions granted under section

16 101(a)(15)(H)(i)(c) for each State in each fiscal year shall

17 not exceed the following:

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

19 10,000,000 based upon the 1990 decennial census of

20 population, 25 petitions.

21 ‘‘(B) For States with populations of 10,000,000

22 or more, based upon the 1990 decennial census of

23 population, 50 petitions.
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1 ‘‘(5) A facility that has filed a petition under section

2 101(a)(15)(H)(I)(c) to employ a nonimmigrant to perform

3 nursing services for the facility—

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

5 rate and working conditions commensurate with

6 those of nurses similarly employed by the facility;

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

8 hours commensurate with those of nurses similarly

9 employed by the facility; and

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

11 nonimmigrant to join or organize a union.

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

13 101(a)(15)(H)(i)(c), the term ‘facility’ means a subsection

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

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

16 meets the following requirements:

17 ‘‘(A) As of March 31, 1997, the hospital was lo18 cated in a health professional shortage area (as de19 fined in section 332 of the Public Health Service Act

20 (42 U.S.C. 254e)).

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

22 under title XVIII of the Social Security Act for its

23 costs reporting period beginning during fiscal year

24 1994—
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1 ‘‘(i) the hospital has not less than 190 li2 censed acute care beds;

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

4 days for such period which were made up of pa5 tients who (for such days) were entitled to ben6 efits under part A of such title is not less than

7 35 percent of the total number of such hos8 pital’s acute care inpatient days for such pe9 riod; and

10 ‘‘(iii) the number of the hospital’s inpa11 tient days for such period which were made up

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

13 medical assistance under a State plan approved

14 under title XIX of the Social Security Act, is

15 not less than 28 percent of the total number of

16 such hospital’s acute care inpatient days for

17 such period.’’.

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

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

20 1101(a)(15)(H)(i)) is amended by striking subclause (a).

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

22 the date of enactment of this Act, the Secretary of Labor

23 (in consultation, to the extent required, with the Secretary

24 of Health and Human Services) and the Attorney General

25 shall promulgate final or interim final regulations to carry
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1 out section 212(m) of the Immigration and Nationality

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

3 (e) LIMITING APPLICATION OF NONIMMIGRANT

4 CHANGES TO 4–YEAR PERIOD.—The amendments made

5 by this section shall apply to classification petitions filed

6 for nonimmigrant status only during the 4-year period be7 ginning on the date that interim or final regulation are

8 first promulgated under subsection (d).

9 SEC. 3. RECOMMENDATIONS FOR ALTERNATIVE REMEDY

10 FOR NURSING SHORTAGE.

11 Not later than the last day of the 4-year period de12 scribed in section 2(e), the Secretary of Health and

13 Human Services and the Secretary of Labor shall jointly

14 submit to the congress recommendations (including legis15 lative specifications) with respect to the following:

16 (1) A program to eliminate the dependence of

17 facilities described in section 212(m)(6) of the Immi18 gration and Nationality Act (as amended by section

19 2(b)) on nonimmigrant registered nurses by provid20 ing for a permanent solution to the shortage of reg21 istered nurses who are United States citizens or

22 aliens lawfully admitted for permanent residence.

23 (2) A method of enforcing the requirements im24 posed on facilities under sections

25 101(a)(15)(H)(i)(c) and 212(m) of the Immigration
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1 and Nationality Act (as amended by section 2) that

2 would be more effective than the process described

3 in section 212(m)(2)(E) of such Act (as so amend4 ed).

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