Author: tancincowp

Aurora filed immigrant petitions for her three married children in 1998. Her children were beneficiaries of prior petitions filed by Jose, Aurora’s husband.  Unfortunately, Jose died in 1997 resulting in the automatic revocation of the petitions. Aurora and her ex-husband obtained their resident visas through employment-based petitions. Instead of returning to the Philippines to be with her children after her husband’s death, Aurora decided to stay in the United States to wait for the visas of her children.

The petition of Aurora for her children falls under the third-family preference category, married adult children of U.S. citizens. She is aware that she will have to wait for more than sixteen years for her children to arrive. The visa bulletin released by the Department of State reveals that for the month of March 2013, only petitions filed in 1992 are currently being processed for visas. It will take quite some time before visas for the petitions filed in 1998 are processed for visa issuance. Aurora is positively looking forward for the visa priority date of 1998 to be current. Since she is now 81 years old, by the time the petition becomes current, she would be 87 years old. Nonetheless, she remains hopeful.

Aurora was made aware of the Senate’s proposed version of the comprehensive immigration reform that may include a provision to reduce visas under the family based categories. She wants to know what the impact will be on her petitions and generally, on the immigrant community if the plan pushes through to reduce visas and eliminate certain family based visa categories

Senate’s Likely Version of Immigration Reform

The bi-partisan group of eight U.S. senators is considering decreasing the number of family visas and eliminating the two family based categories. Although there is no final proposal yet, it is likely that the third and fourth family preference categories will be eliminated. These are petitions by U.S. citizens on behalf of their adult-married children and siblings.   There will be a reduction of at least 90,000 family visas that will limit the ability of US citizens to petition their relatives.

In line with the Senators’ framework for comprehensive immigration reform of “attracting the best and the brightest”, they are more inclined to allocate visas for the employment based category. The idea is to shift the number of visas allocated for family in favor of employment based visas without adding visas to the total worldwide numerical quota. The Immigration and Nationality Act specifically provides an annual numerical cap of 226,000 in the family based category and approximately 154,000 in the employment based preferences.
The approach being considered is based on the assumption that the total number of visas available should only be fixed to what is provided for by existing law. If ever there is a change as proposed, visas are simply going to be re-allocated.

No Shifting of Visa Numbers

The real solution to resolve the lengthy backlog in both the family and employment categories is for visa numbers to be increased across the board. Hopefully, there will be no mere shifting of the visa numbers from one category to the other.  

The family is undeniably the source of immigrant strength and vitality. When there is a strong family unit and support, immigrants do not only advance a fundamental value but also they thrive better resulting in significant social and economic benefits. Family members bring skills and resources.  They migrate and build businesses and are successful entrepreneurs as well.  

When family members are petitioned and immigrate to join their relatives, they could provide much needed care to the elders and to minor children. The latter is true especially to Filipino families with strong family networks who care for their elderly parents and support their minor children.

If the manner of attracting the best and brightest is by making it difficult for relatives to immigrate, the opposite effect may result. The highly skilled and talented individuals may be discouraged from applying for visas to come to the United States if their family members will find it difficult to migrate. It will be disheartening for U.S. citizen petitioners, like Aurora, if the plan pushes through to eliminate the family preference categories of siblings and married children of U.S. citizens.

Family and Employment

Ideally, the immigration system must be amended to increase the total numerical worldwide cap and increase the per country limit to resolve the backlog and to foster family unity.

Favoring the category of family petitions over employment petition is a futile approach. When the talented and highly skilled individuals are allowed to petition their families, the employment-based system is also strengthened.  The immigration system for allocating visas for both family and employment petitions must be working together.  Only then can we say that there will be a sincere, fair and humane immigration reform.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 02 721 1963 or visit her website at tancinco.weareph.com/old)

Menchu, a Filipina nurse from Secaucus, New Jersey was recognized by President Obama as a hero for rescuing 20 premature babies during the 2012 Hurricane Sandy.  Menchu may not have realized the extent of her heroic deeds but her recognition by the President of the United States made us all proud of all hard working Filipino nurses.  Ironically, a few weeks after giving pride to the nursing profession, senatorial candidate, Cynthia Villar made hurtful remarks about Filipino nurses. In her statement on television, she used the words “ ano lang sila, nag aalaga who wants to be room nurse”.

While Villar was not afforded an opportunity to expound on her statement, we all understood it in a derogatory way.  First, to be a room nurse would require a Bachelor’s Degree in the United States specifically if the position were for an emergency room nurse or an operating room nurse. Second, to qualify for a professional working visa as a nurse under the H1B category, a nurse must have a Bachelors degree and be offered a position higher than that of a staff nurse. Such higher positions, for example, would be clinical nurses and nurse practitioners.

Associate vs. Bachelors Degree

The statement that nurses do not need Bachelors degree refers to RNs who are educated in the United States. To obtain an RN, almost all states only require an Associate Degree. This is the reason that the position of  “registered staff nurse” is not a professional position in H1B worker visas.  The position that is offered for an H1B visa requires as minimum a bachelors’ degree. Hence, if the position is simply for a staff nurse, the foreign educated RN will not qualify for an H1B. What would qualify an RN for an H1B visa are more complex nursing positions such as operating room nurses, clinical nurses and nurse practitioners, among others.

Although RNs are not generally qualified for the H1B professional working visas because the position only requires an associate degree, these foreign educated nurses are nonetheless eligible for a straight green card. If a U.S. employer offers a permanent full time job to a foreign graduate nurse, a petition is filed under the third preference category. Once the petition is filed and the priority date becomes current, the nurse may migrate directly with a green card status without need of being in a temporary working visa status. The downside to this, however, is that green cards under this category have a number of years of backlog.  

RNs who apply for immigrant visas in the United States are processed differently from other professionals.  Since nursing is still considered as a shortage occupation, the petitioning employers do not need to undergo the labor certification process. This is the process of determining availability of U.S. citizens or residents for the position before hiring a foreign national. The nurses, up to the present time, fall under the Schedule A category which means that they are pre-certified already and may file directly for immigrant visas.  

A verification process takes place before an RN is petitioned. The Commission on Graduates of Foreign Nursing Schools (CGFNS) administers a qualifying exam to verify foreign nurse credentials to ensure that the nurses meet the minimum educational requirement for RN licensure. After the CGFNS, the registered nurses are required to take the English proficiency test and thereafter pass the US national nursing licensure exam or the NCLEX.

When there was no retrogression or backlog in visa petitions, Filipino nurses were migrating in the United States at an accelerated rate. In fact in 2005, additional visas of 50,000 were allocated for nurses to fill up the severe shortage. However, beginning in 2007, employment petitions for nurses underwent retrogression and severe backlogs. This resulted in many nurses waiting in line for their priority dates to become current. As of today, visas are only being issued to RN petitions that were filed on or before September 2006.

Other Health Care Providers

Senatorial candidate Cynthia Villar may indeed have confused RNs with care providers who do not need a degree. But it was her manner of referring to all nurses that subjected her to severe criticism.

There are health care providers who can be petitioned by U.S. employers without need of a bachelors degree. These are the licensed vocational nurses, the licensed practical nurses, the certified nursing aides or the ‘caregivers’. It takes longer for these types of occupations to be processed for immigrant visas. The reason for their lengthy processing is that they are not ‘pre-certified’ as shortage occupation. It takes approximately 7-8 years before these occupations receive their immigrant visas.

In the coming decade, more than 78 million baby boomers are going to retire and there is an expected shortage of health care workers to fill those positions. The baby boomers will soon need health care themselves. In preparation for this shortage, and assuming that US immigration law pertinent to foreign educated nurses remains unchanged, there will be more nurse positions required. To prepare for the future, those who are interested to enter into this profession should continue to strive to complete their education and emulate their role models such as our very own Menchu Sanchez. She is the “taga-pagalaga” but her nursing profession has gained her honor when her true nurturing character was revealed through her heroic deed during a time of crisis. Indeed, she was a “taga-pagalaga” with a heart and pride. No one may take that away from every hard working and dedicated nurse who works anywhere in the world.

(Tancinco may be reached at law@tancinco.com or at 1 888 930 0808 (US) or at 02 887 7177 or 02 721 1963 (Manila).)