May 28, 2020
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner
As we cope with the health challenges posed by the corona virus, we rely more than ever on our doctors, nurses, nurse assistants, medical technicians, those who provide elder care. Those on the front lines of the battles with COVID-19. But can these “heroes” get a green card if they are foreign-born? Do we make it easy for those who nurse us back to health to stay in this country?
Typically, a person seeking permanent residence in this country through an employer must first prove that no American wants their job. This is true for most medical professionals, including nursing home workers, medical technicians and even most doctors. This must be accomplished through a laborious procedure known as “labor certification” or it’s more modern name, PERM.
This PERM process is not conducted through the Immigration Service but instead in the U.S. Department of Labor (DOL). A hospital or other medical facility must engage in recruitment — essentially pretending that they are still looking for an employee — to show that no U.S. citizen is qualified and interested in the position. In order to obtain a labor certification, the employer must run two Sunday advertisements, do a ten-day internal job posting, and place a 30-day job order on line. The medical facility must prove to the government that no qualified American applied for the job in response to this recruitment process.
Even if successful in so proving, the medical worker must be paid “prevailing wage” for the position — often an amount above the market wage. The medical facility must show that they require the position offered, and that the applicant has the necessary education, training and experience to fill the position.
Easier path for nurses
We do make an exception for two types of health care workers: nurses and physical therapists. These two professions can bypass the often-lengthy process of labor certification and directly file the “Immigrant Petition for Alien Worker”— qualification for permanent residence — without doing this artificial recruitment process. These jobs fall under “Schedule A”, a short list of pre-certified occupations, where there is a continuous shortage of qualified U.S. applicants.
To qualify for this faster path to permanent residence, nurses must be RNs, not LPNs. They also must be sponsored for their green card by a medical facility, offering them a suitable professional position with an appropriate salary.
Of course, all of these jobs are limited by quotas which restrict the number of immigrants per year and per country. No exception is made for medical professionals.
However, a bipartisan group of senators introduced legislation in May to grant 40,000 immigrant visas to foreign health care workers needed to help U.S. medical professionals fight the coronavirus pandemic. The bill would authorize up to 25,000 immigrant visas to go to foreign nurses and up to 15,000 for doctors who are eligible to come to the United States or who are already here on temporary work visas. As of now, there is no indication that the measure will be brought to a vote by Senate leadership.
The other major restriction in the law applies to those who are undocumented. Many of our elder care and private home health care is provided by immigrants here without status. Typically, these are persons who came without a visa, or who overstayed their visas. In the North Bay, many of these health care workers come from Mexico, Central America, the Philippines, Fiji, elsewhere in Asia, Latin America, various African countries and even Europe. Often they fill the lowest paid, most physically-demanding jobs in health care. Yet, they have no path to a green card under current law.
This also includes an estimated 30,000 health care workers with DACA. Although they have a work permit for the time being, they have no path to a green card. (And even their work permits may be lost in June when the Supreme Court issues its decision on the Trump Administration’s termination of DACA).
We may think that a health care professional — possessing an education, skilled medical training and a job in a hospital or medical facility — would be given preference by our immigration system. Yet, under current law, that’s simply not the case.
WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.
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