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The U.S. is facing a critical nursing shortage, which can potentially be alleviated through the recruitment of international talent.

Across the country, hospitals and health systems have been struggling to fill open nursing positions for years as these professionals retire or leave the field at a rate faster than new nurses are being licensed. According to the U.S. Bureau of Labor Statistics, this shortage will continue to widen as the number of open positions in registered nursing is expected to grow by 7% before 2029, representing one of the fastest growing fields in the U.S.

This nursing shortage has been exacerbated by the pandemic, which has overwhelmed hospitals and has placed considerable pressure on front-line nurses tasked with treating surging numbers of seriously ill COVID-19 patients. This has led to significantly higher levels of burnout and turnover compared to prior years.

Registered nurses are of critical importance, and this shortage presents a pressing issue to healthcare facilities across the nation. In response, many health systems are expanding internationally in their recruitment efforts.

Thousands of qualified international nurses are eager to fill these positions, and many healthcare organizations have found success recruiting nurses from overseas. However, recruiting nurses across U.S. borders presents challenges from a legal and immigration standpoint.

The immigration options available to foreign national nurses are limited and often take a long time to process. Based on a recent estimate, there are currently at least 5,000 foreign nurses who have passed through the first steps in the process to obtain permanent residence in the U.S., but are still awaiting the issuance of their immigrant visas before they can travel to the U.S. In June 2021, the American Hospital Association teamed up with other organizations and urged the U.S. State Department to give foreign-trained nurses seeking immigrant visas processing priority, claiming in a statement that “there has never been a more urgent need” for these individuals.

Until action is taken on the federal level, health systems and hospitals will need to navigate the existing immigration landscape if they want to recruit nurses internationally. Here are a few pathways healthcare systems can follow to ensure that their international recruits can work legally in the U.S.

“Schedule A” Permanent Residence Process

U.S. employers can sponsor foreign national nurses directly for permanent residence in the U.S. through the “Schedule A” petition process. The U.S. Department of Labor designates professional nursing positions as “Schedule A,” because it is established that there are not sufficient U.S. workers who are able, willing, qualified, and available in that occupation. Therefore, health systems do not need to secure a Labor Certification from the Department of Labor when hiring foreign professional nurses on a permanent basis. That significantly simplifies and shortens the typical employment-based process that employers must follow when hiring foreign national workers on a permanent basis. In order to pursue this pathway to permanent residency, candidates must have a full license to practice nursing in the state they will be employed and a certificate of completion from the Commission on Graduates of Foreign Nursing Schools (CGFNS).

Schedule A is a viable pathway to recruiting nurses for the long-term. However, it can take more than a year for this process to be completed (and in some cases significantly longer, depending on the country of birth of the individual), which presents challenges if the employer is in need of immediate help. As discussed above, this process is also currently subject to delays due to the Department of State’s reduced consular operations. Therefore, employers with more immediate staffing needs should look into whether an appropriate temporary or non-immigrant option is available before skipping directly to permanent residence. Below are some of the most common non-immigrant visa types appropriate for nursing professionals.

Non-Immigrant TN Visas for Canadian and Mexican Nationals

The TN visa classification under the United States-Mexico-Canada Agreement (USMCA) (formerly North American Free Trade Agreement) offers the least complicated pathway for Canadian and Mexican Registered Nurses to secure work authorization in the U.S. While the TN category is only temporary, it can be extended as long as the individual continues to maintain eligibility as well as the requisite non-immigrant intent. As visa-exempt individuals, Canadian nationals can simply apply for TN-1 admission with the required documentation at a U.S. port-of-entry or preflight inspection location. Mexican nationals are required to apply for a TN-2 visa stamp through a U.S. Consulate abroad before attempting admission.

Canadian and Mexican nurses seeking to obtain TN visa status must hold a valid passport in one of these countries, hold a state or provincial nursing license, or hold a Licenciatura Degree, where they intend to work, and show proof of a job offer from a U.S. employer. Additionally, they must acquire a Visa Screen credentials assessment from the CGFNS that proves they possess the necessary education, licenses, exam scores, and proficiency in English language.

Non-Immigrant H-1B Visas

In order to sponsor a foreign national worker for a temporary H-1B visa, a U.S. employer must show that the sponsored position is in a specialty occupation. This generally means that the job requires at least a bachelor’s degree or equivalent in a related specialty field. This may present a challenge for employers that do not require at least a related Bachelor’s degree or higher for their nursing positions. USCIS has issued guidance to help evaluate which nursing jobs may qualify for an H-1B. For positions that meet the specialty occupation criteria, an H-1B visa could be a viable option, but many employers also have to apply through the H-1B “cap” process or qualify for an exemption from it.

U.S. laws limit or “cap” the number of H-1B visas designated each year at 65,000, plus another 20,000 for individuals who hold certain U.S. advanced degrees. Therefore, employers of nurses have to compete with other industries for these visas. When demand exceeds supply, which has been the case in recent years, USCIS conducts a randomized lottery to select the lucky 85,000 H-1B petitions that may be submitted and adjudicated. Certain healthcare organizations may benefit from one of the exemptions to the H-1B quota. For example, non-profit organizations affiliated with an institution of higher education – a common scenario would be a non-profit hospital that has entered into an affiliation agreement with a university or medical school to train medical professionals or to conduct research. Another exemption applies to for-profit employers when the majority of the work will physically take place at an organization that is cap-exempt (for example, a university or an affiliated non-profit organization) and the individual’s work will directly and predominantly further the essential purpose, mission, objectives, or functions of the qualifying institution. Importantly, foreign nationals who already hold H-1B visas that were obtained through the H-1B cap system with another employer are also exempt from it when switching employment.

Obtaining and Maintaining Necessary State Licenses

International nurses working legally in the U.S. will need to ensure they receive and hold the necessary nursing licenses for the state in which they will be working. Receiving these licenses typically requires the international nurse to demonstrate proficiency in the required on-the-job skills, including speaking the English language. In many states, international nurses will also need to receive a certificate of completion from the CGFNS which further validates the nurse’s ability to work in the U.S. Nursing licenses vary from state to state, and it is essential that health systems and hospitals ensure their state’s requirements are being met. The process for receiving these licenses varies depending on the state in which the nurse will be working and has the potential to delay an international nurse’s start date. These licenses and potential delays must be factored into the decision process with recruiting internationally.

Putting in Place a Long-Term Plan

With the nursing shortage expected to continue for years to come, hospitals and health systems should consider a long-term plan to address this issue. While recruiting nurses internationally is a viable way to overcome this pressing challenge, it requires upfront planning and consideration of the potential immigration and credentialing related delays to ensure these nurses are able to work legally in the U.S. At Buchanan, we have decades of experience navigating complex immigration challenges and employment best practices at a wide range of hospitals and health systems. Organizations that recruit international nurses do not need to go at it alone. Engaging legal counsel early in this process can help leadership avoid headaches and roadblocks in their effort to address this nationwide nursing shortage and better serve their patients.