Jenny entered into a contract of employment with a US recruitment agency in 2005. She was told that she will be working in a US hospital as soon as the visa is made available. Her petition for I-140 was processed and has a priority date of September 2005.
Having already waited one year for her immigrant visa, Jenny ran out of resources and was forced to accept a nursing job in Australia. She has been working in Australia for more than three years now but still has not abandoned her dream of working the US.
During Jenny’s visit to the Philippines for the holiday season, she intended to ask her recruitment agency on when exactly will she receive her visa. She has been hearing about businesses and facilities closing in the US and is wondering if her approved petition will be affected by the current financial crisis.
Retrogression
While visas for registered nurses fall under Schedule A, which is the category that certifies a US shortage occupation, the processing for these visas is still taking a long time. Unlike before where the category for registered nurses was placed under a special classification that added more visa numbers, the category of registered nurses is incorporated under the third employment-based preference category (or EB3).
There are only certain numbers of visas that are available for each given fiscal year. Since there are more applications/approved petitions than the number of visas available, there is now a backlog in the issuance of visas which is often referred to as retrogression.
For the month of January 2009, the US Department of State’s visa bulletin indicates that the visa processed for nurses are those that were filed on May 2005. This means that the petitions with priority dates of May 2005 are the ones being issued visas consular offices.
Changes in Circumstances
When registered nurses interested in working in the US signs contracts with recruitment agencies, they are expected to work for the designated US facility or hospital for certain period of time. Most of the contracts signed show a two or three year commitment to work for the petitioning employer.
If those being processed for visas are those with priority dates of 2005, there are probable changes in circumstances that may affect the grant or denial of the visas.
The lengthy period of waiting may have resulted in changes on the need of the US employer. Because of budget constraints that are being experienced by most public institutions, the US hospitals dependent on federal, state or city funding may have resulted in the termination of employees. In the City of San Francisco, there is a plan to terminate several hundred employees from the Department of Public Health because of budget issues. The public hospitals have started terminating employees also to reduce their expenses.
Terminating public employees in public hospitals or facilities has a severe effect on approved petitions on behalf of foreign nurses. This holds true also for private institutions. The Immigration and Nationality Act requires the US petitioner to have the financial ability to pay their employees for the foreign worker to be granted the immigrant visa. If the petitioner has no more ability to pay additional workers, even if the petition was approved before 2009, the immigrant visa petition will be adversely affected.
USCIS Memo on RN Petitions
The US Citizenship and Immigration Services issued in December 2008, a Memorandum regarding the processing of petition for registered nurses. According to the USCIS Ombudsman, the need for registered nurses remains critical and that the processing for their immigrant visa petitions must be expedited.
This Memorandum is a significant proof of the need to give important consideration to the processing of immigrant visas for registered nurses. The processing time that is addressed in this document is the processing of the Petition for Immigrant Worker or the I-140. This petition, if approved, will have a priority date that will indicate when visa is finally going to be issued. Unfortunately, even if the proposed expedited processing is established and the I-140 petitions are approved, there will still be waiting times because of retrogression.
Legislation passed by US Congress adding more visas to the RN petitions, or even better, exempting them from the visa quota, will be the faster and more practical solution to obtaining faster visas for the RNs.
Remaining Hopeful
The message we send for the New Year is all about remaining hopeful despite the many challenges of a US financial crisis and a global recession. The same remains true for aspiring Filipino RNs who wants to work in the US.
The demand for registered nurses is still high. The healthy financial situation of each petitioner must be intact to continue the processing of the immigrant visa petition. For the registered nurses who have waited for many years, it is prudent to research on the existence of the US employer considering that many US businesses and institutions have been adversely affected by the financial crisis. The good news is that the coming Obama administration has health care as among the top on his priority list. Let’s be hopeful that real solutions be taken in the next 100 days after his inauguration. Happy New Year to all!
(Tancinco may be reached at law@tancinco.com or at 887 7177).
