Immigration: Nurses: Retrogression |
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posted 14 Mya 2007 |
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Limited Options for RNs and PTs as Visa Numbers Run OutBy Reuben S. Seguritan
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The immigrant visa numbers for registered nurses (RNs) and
physical therapists (PTs) will retrogress this November.
The November 2006 Visa Bulletin for these Schedule A occupations shows a cut-off date of October 1, 2005 This means the Department of State will process only those applications with priority dates before October 1, 2005 |
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Background
It will be recalled that in January 2005, Schedule A
occupations experienced a brief spell of retrogression
that could have caused a 3-year delay in the entry of
RNs and PTs notwithstanding the critical need for them.
Congress eventually heeded the call of the healthcare
sector and inserted a provision in the supplementary
spending bill for tsunami aid and Iraq which recaptured
50,000 unused visas to be allocated specifically to RNs
and PTs and other Schedule A workers worldwide on May
11, 2005.
The visa recapture provision prevented years of delay in
the entry of these much-needed health professionals to
the US, at least until next month.
Effects of Retrogression
For Schedule A workers who are currently in the US under
temporary visas such as students and tourists, the
immediate impact of the retrogression is that they may
not be able to adjust their status from non-immigrant to
immigrant.
This means Schedule A workers would have to leave the US
when their I-94 expires and wait for their priority
dates to be current in order to avoid incurring
unauthorized stay, which bars them from acquiring
permanent residence in the US.
They will have to wait outside the US until their
priority dates come up. Only then can they apply for an
immigrant visa at a US consulate and upon approval,
enter the US as immigrant workers. |
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| With an estimated 1 million nurses needed through the year 2012, Congress must act fast and decisively on the proposal to exempt nurses from the annual numerical limits for immigrant worker visas so that retrogression would be a thing of the past. |
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Adjustment of Status
While it may be extremely difficult for Schedule A
workers to adjust status in the context of the visa
retrogression, the law provides some limited relief.
First, Section 245 (i) of the Immigration and
Nationality Act (INA) allows the foreign worker who had
been a beneficiary of an immigrant visa petition or
labor certification application filed on or before April
30, 2001, and had been physically present in the US on
December 21, 2000, to adjust his/ her status to
permanent resident despite having entered the US without
inspection, overstayed or engaged in unauthorized
employment. A penalty of $1,000 on top of the basic
filing fee must be paid with the adjustment of status
application.
Although the Section 245 (i) program ended on April 30,
2001, some non-citizens may still take advantage of this
provision if their case can be considered
“grandfathered” by the immigrant petition or labor
certification filed on the said date.
For an adjustment of status case to be “grandfathered,”
the qualifying petition or labor certification
application should have been “approvable as filed.” If
the qualifying petition or labor certification
application is withdrawn, denied or revoked for reasons
that arose after the filing, the non-citizen may still
be eligible to adjust status under a different immigrant
petition or labor certification application.
Second, Section 245 (k) of the INA also offers an
out-of-status foreigner an opportunity to apply for
adjustment of status. The applicant must, however, meet
the following eligibility requirements, namely: s/he
must have entered the US lawfully; s/he must be present
in the US at the time the adjustment of status
application is filed; s/he must not have violated the
conditions of his/ her stay or engaged in unauthorized
employment for an aggregate period not exceeding 180
days as of the date of the adjustment of status
application.
More Visas Now
It is not far-fetched to expect that the retrogression
would stretch to longer periods, even years, if Congress
ignores the situation. Unfortunately, Congress is not
inclined to act fast on this matter considering its
track record.
Although the stalled Senate immigration reform bill
contained a provision lifting the quotas for the entry
of nurses, there is no clear indication that the
retrogression will be stop now or in the near future.
This is the time to call louder for additional visa
numbers for skilled workers. US medical and nursing
facilities are barely coping. With an estimated 1
million nurses needed through the year 2012, Congress
must act fast and decisively on the proposal to exempt
nurses from the annual numerical limits for immigrant
worker visas so that retrogression would be a thing of
the past. (10252006)
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REUBEN S. SEGURITAN
has been practicing law for
over 30 years. He was former immigration editor and is author of a
book on immigrant experiences. He frequently speaks on immigrant
issues and for his advocacy efforts he was the recipient of two
presidential awards by President Ramos and an award by the
Commission on Filipinos Overseas. He previously taught business law
and international politics. For further information, you may call
him at 212 695 5281 or log on to his website at www.seguritan.com |
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