II
Calendar No. 168
106TH CONGRESS
1ST SESSION
H. R. 441
IN THE SENATE OF THE UNITED STATES
MAY 27, 1999
Received; read twice and referred to the Committee on the Judiciary
JUNE 24, 1999
Reported by Mr. HATCH, without amendment
AN ACT
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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Nursing Relief for Dis-
advantaged Areas Act of 1999’’.
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SEC. 
2. 
REQUIREMENTS 
FOR 
ADMISSION 
OF 
NON-
IMMIGRANT NURSES IN HEALTH PROFES-
SIONAL SHORTAGE AREAS DURING 4-YEAR
PERIOD.
(a) ESTABLISHMENT
OF
A NEW NONIMMIGRANT
CLASSIFICATION
FOR
NONIMMIGRANT
NURSES
IN
HEALTH
PROFESSIONAL
SHORTAGE
AREAS.—Section
101(a)(15)(H)(i) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(15)(H)(i)) is amended by striking ‘‘;
or’’ at the end and inserting the following: ‘‘, 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 At-
torney General that an unexpired attestation is on file and
in effect under section 212(m)(2) for the facility (as de-
fined in section 212(m)(6)) for which the alien will per-
form the services; or’’.
(b) REQUIREMENTS.—Section 212(m) of the Immi-
gration and Nationality Act (8 U.S.C. 1182(m)) is amend-
ed to read as follows:
‘‘(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), with respect to an alien who is com-
ing to the United States to perform nursing services for
a facility, are that the alien—
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‘‘(A) has obtained a full and unrestricted li-
cense 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 consulta-
tion with the Secretary of Health and Human Serv-
ices) 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 em-
ployed) 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).
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‘‘(ii) The employment of the alien will not ad-
versely 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.
‘‘(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 per-
form 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 be-
fore 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 reg-
istered 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
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to the bargaining representative of the registered
nurses at the facility or, where there is no such bar-
gaining representative, notice of the filing has been
provided to the registered nurses employed at the fa-
cility through posting in conspicuous locations.
‘‘(vii) The facility will not, at any time, employ
a number of aliens issued visas or otherwise pro-
vided 
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 non-
immigrant 
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 requir-
ing a facility to have taken significant steps de-
scribed in such clause before the date of the enact-
ment of the Nursing Relief for Disadvantaged Areas
Act of 1999. A copy of the attestation shall be pro-
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vided, within 30 days of the date of filing, to reg-
istered 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 reason-
ably designed to recruit and retain registered nurses:
‘‘(i) Operating a training program for reg-
istered nurses at the facility or financing (or pro-
viding participation in) a training program for reg-
istered nurses elsewhere.
‘‘(ii) Providing career development programs
and other methods of facilitating health care work-
ers 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 con-
sidered to be an exclusive list of the significant steps that
may be taken to meet the conditions of subparagraph
(A)(iv). Nothing in this subparagraph shall require a facil-
ity to take more than one step if the facility can dem-
onstrate that taking a second step is not reasonable.
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‘‘(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 begin-
ning 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 ap-
plied (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 ac-
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companying 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, investiga-
tion, and disposition of complaints respecting a facility’s
failure to meet conditions attested to or a facility’s mis-
representation of a material fact in an attestation. Com-
plaints may be filed by any aggrieved person or organiza-
tion (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.
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‘‘(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 appro-
priate. Upon receipt of such notice, 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 em-
ployed 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 vio-
lated 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 re-
quired to comply with such condition.
‘‘(F)(i) The Secretary of Labor shall impose on a fa-
cility filing an attestation under subparagraph (A) a filing
fee, in an amount prescribed by the Secretary based on
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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 sec-
tion 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 fol-
lowing:
‘‘(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.
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‘‘(C) If the total number of visas available
under this paragraph for a fiscal year quarter ex-
ceeds 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:
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‘‘(A) As of March 31, 1997, the hospital was lo-
cated in a health professional shortage area (as de-
fined 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 li-
censed acute care beds;
‘‘(ii) the number of the hospital’s inpatient
days for such period which were made up of pa-
tients who (for such days) were entitled to ben-
efits under part A of such title is not less than
35 percent of the total number of such hos-
pital’s acute care inpatient days for such pe-
riod; and
‘‘(iii) the number of the hospital’s inpa-
tient 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.
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‘‘(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 re-
tirement, or the expiration of a grant or con-
tract; 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 equiva-
lent or higher compensation and benefits than
the position from which the employee was dis-
charged, regardless of whether or not the em-
ployee 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 con-
tract.’’.
(c) REPEALER.—Clause (i) of section 101(a)(15)(H)
of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)) is amended by striking subclause (a).
(d) IMPLEMENTATION.—Not later than 90 days after
the date of enactment of this Act, the Secretary of Labor
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(in consultation, to the extent required, with the Secretary
of Health and Human Services) and the Attorney General
shall promulgate final or interim final regulations to carry
out section 212(m) of the Immigration and Nationality
Act (as amended by subsection (b)).
(e) LIMITING
APPLICATION
OF
NONIMMIGRANT
CHANGES TO 4-YEAR PERIOD.—The amendments made
by this section shall apply to classification petitions filed
for nonimmigrant status only during the 4-year period be-
ginning on the date that interim or final regulations are
first promulgated under subsection (d).
SEC. 3. RECOMMENDATIONS FOR ALTERNATIVE REMEDY
FOR NURSING SHORTAGE.
Not later than the last day of the 4-year period de-
scribed in section 2(e), the Secretary of Health and
Human Services and the Secretary of Labor shall jointly
submit to the Congress recommendations (including legis-
lative specifications) with respect to the following:
(1) A program to eliminate the dependence of
facilities described in section 212(m)(6) of the Immi-
gration and Nationality Act (as amended by section
2(b)) on nonimmigrant registered nurses by pro-
viding for a permanent solution to the shortage of
registered nurses who are United States citizens or
aliens lawfully admitted for permanent residence.
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(2) A method of enforcing the requirements im-
posed 
on 
facilities 
under 
sections
101(a)(15)(H)(i)(c) and 212(m) of the Immigration
and Nationality Act (as amended by section 2) that
would be more effective than the process described
in section 212(m)(2)(E) of such Act (as so amend-
ed).
SEC. 4. CERTIFICATION FOR CERTAIN ALIEN NURSES.
(a) IN GENERAL.—
(1) Section 212 of the Immigration and Nation-
ality Act (8 U.S.C. 1182) is amended by adding at
the end the following new subsection:
‘‘(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 At-
torney General) a certified statement from the Commis-
sion on Graduates of Foreign Nursing Schools (or an
equivalent independent credentialing organization ap-
proved 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 li-
cense as a nurse in a State where the alien intends
to be employed and such State verifies that the for-
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eign 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—
‘‘(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 coun-
try, and the English language proficiency
of those who complete such programs in
that country, justify the country’s designa-
tion; 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)
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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 equiva-
lent credentialing organizations which have
been approved under subsection (a)(5)(C) for
the certification of nurses under this sub-
section.’’.
(2) Section 212(a)(5)(C) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(5)(C)) is
amended by striking ‘‘Any alien who seeks’’ and in-
serting ‘‘Subject to subsection (r), any alien who
seeks’’.
(b) EFFECTIVE DATE.—The amendments made by
subsection (a) shall take effect on the date of the enact-
ment of this Act, without regard to whether or not final
regulations to carry out such amendments have been pro-
mulgated by such date.
(c) ISSUANCE
OF CERTIFIED STATEMENTS.—The
Commission on Graduates of Foreign Nursing Schools, or
any approved equivalent independent credentialing organi-
zation, shall issue certified statements pursuant to the
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amendment under subsection (a) not more than 35 days
after the receipt of a complete application for such a state-
ment.
Passed the House of Representatives May 24, 1999.
Attest:
JEFF TRANDAHL,
Clerk.