Atty. Lou,
I have a cousin who is a registered nurse in the Philippines. A few years back, an administrator of a U.S. hospital filed a petition on her behalf under the third employment based preference. After waiting for seven years, her priority date became current and she is now being processed for the immigrant visa. She is preparing for her interview before the consular officer at the U.S. Embassy but she has some serious concerns. In the last five years, she has not worked as a registered nurse. She gave birth and has been taking care of her child for the last five years. Will she encounter problems during her interview because she has been unemployed or has not recently practiced her profession? Thank you in advance for your reply.
VM
Dear VM,
Those who have been waiting for their employment based visa petitions to become current will notice a progression of the priority dates under the third preference category. For the last three months there is a significant movement from June 2007 to January 2008. This means that most of the beneficiaries of employment petitions who have been waiting will now be receiving their ‘checklist’ or documents from the National Visa Center. It had taken at least seven years before the visas are finally made available. Considering this length of time, it is not surprising that there are changes that may have occurred in the beneficiary-nurses lives. A clear example is what happened to the letter writer’s cousin. She stopped working as a registered nurse and is now being processed for the visa. But is the recent “unemployment” of the nurse a critical issue in the issuance of the immigrant visa?
There is no legal requirement that the beneficiary be employed as a registered nurse immediately prior to her application for the immigrant visa. Hence, you have to inform your cousin that she should not worry about her being a fully time mother in the last five years. However, there are more serious factors to look into which may affect her receipt of the immigrant visa. Most important to consider is whether or not the Job Offer from the U.S. hospital/petitioner is still outstanding. Most of the time, since it had taken very long for the visa to become available, the position that was previously offered to the registered nurse is no longer existing. If this happens, the nurse will have problems with during her visa interview. If the consular officer discovers that there is no job offer, then the immigrant visa is considered automatically revoked. This means that no visa shall be issued to the applicant nurse.
Assuming that the Job Offer is still outstanding, the next factor to consider is whether or not the petitioner who filed the employment based petition is still legally existing and is still operational. If it is no longer existing, the application for the visa will be denied. The only solution to this issue if it occurs is to re-file a new I-140 petition by a new U.S. employer and recapture the priority date of the prior employment petition filed by the first U.S. employer.
If the Job Offer is outstanding and the petitioner is still legally in existence, the applicant nurse must determine whether the petitioner employer has the financial capacity to pay the wages. The consular officer will require for the latest financial statement of the petitioner much like in family based petitions where the tax returns of the petitioning relative are requested. Hopefully, all these three factors namely: job offer, legal existence and the ability to pay are met favorably by the nurse applicant.
More importantly, the nurse applicant for the visa must have credentials that are valid and up to date. Recently, the Commission of Graduates of Foreign Nursing Schools (CGFNS) is receiving urgent requests for re-certification of Visa Screen Certificate. These certificates are valid only for five years and needs to be re-certified if the nurse applies for a visa. As previously mentioned, it is taking at least seven years for the priority date to become current for nurses petitions and most likely the Visa Screens are expired by the time the visas are available. It is critical to plan ahead of time because the CGFNS may accept re-certification application at least one year before the certificates expire.
If your cousin took the necessary steps to verify the various factors explained above including the possession of a valid CGFNS Visa Screen certificate, she should not worry about the issuance of her visa.
I hope this information is helpful to your cousin.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her principal office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 1 888 930 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)
