Foreign nationals could help alleviate some of the issues caused by the current healthcare worker shortage in the United States. However, for some key positions there are few viable work visa options available to bring them to the country.
The United States is expected to face a shortfall of 37,800 to 124,000 doctors by 2034, according to a 2021 study conducted by the Association of American Medical Colleges, while the “total supply of RNs decreased by more than 100,000 from 2020 to 2021,” a study published in Health Affairs in early 2022 found.
There are many reasons for the shortages, including an increase in employees leaving the industry because of the effects of the COVID-19 pandemic, as well as a “significant segment of the nursing workforce reaching retirement age,” with more than a million RNs projected to retire by 2030, according to Health Affairs.
Many foreign national healthcare workers are ready, willing and available to come to the United States to fill open positions. Yet, there are significant barriers that prevent foreign nationals in the industry, especially nurses, from seeking work in the country, despite some healthcare systems being in dire need of employees, Garfinkel Immigration Law Firm Partner Meredith W. Barnette said during a recent interview.
“There are a lot of foreign national healthcare workers available who are outside of the U.S.,” Barnette said. “They have to go through credentialing and evaluation to make sure they have the foundational knowledge and the same type of educational training as someone in the U.S. who received their nursing degree. It is not a question about whether or not they’d be able to do the job, at least from a training standpoint.”
Doctors are usually eligible for an H-1B visa, a nonimmigrant classification available for U.S. companies to fill a “specialty occupation” with a qualified foreign national. But, nurses are often unable to receive a visa in that category, as it generally requires a bachelor’s degree or higher, and Barnette explained that many employers in the industry still accept an associate’s degree as the minimum education for the position.
“There’s not really a good visa option for nurses,” Barnette said. “Part of the reason is because many in the industry still accept an associate’s degree as the minimum education for nurses. Positions eligible for H-1B visas need to require a bachelor’s degree. So, often that poses a challenge for relying on the H-1B visa category for nurses.”
Without the H-1B visa, nurses are left with few employment-based temporary visa options. Newly graduated F-1 students can work under OPT, but that is limited to only 12 months of employment. There is the TN visa available for Mexican and Canadian citizens, as well as the E-3 visa for Australians, which, like the H-1B, requires a bachelor’s degree.
That means that usually the only option for nurses who do not fit into one of those limited categories is to begin a green card application. That process is costly, time consuming and can be challenging, especially considering the well documented backlogs and delays impacting United States Citizenship and Immigration Services (USCIS), the Department of State (DOS) and the Department of Labor (DOL).
“The green card process right now is taking about two-and-a-half to three years on average,” Barnette said. “Even though nurses have a more streamlined process than others, there are still specific time sensitive constraints involved in the process as well as a backlog of immigrant visa numbers. Right now, the green card route isn’t getting nurses to the United States quickly enough to alleviate the shortage.”
Barnette said there are some options that the Department of Homeland Security (DHS) and Congress can take to make it easier for foreign national healthcare workers to be employed in the U.S. For instance, Barnette suggested that DHS could add nursing to the STEM Designated Degree Program List, which would enable F-1 nursing students to be eligible for 36 months of OPT, instead of the current 12.
“OPT for nursing students right now is only 12 months,” Barnette said. “Even if employers start the green card process when they offer the student nurse a job, their work authorization will expire before they’re able to file the last step of the green card process and employers will lose that nurse. There’s a big gap in work authorization because of the length of time the green card process is taking. The extended OPT would not only give the student nurse an extra two years of work, but also could potentially eliminate that authorization gap and allow them to be employed until they receive a green card.”
Further, the Healthcare Workforce Resilience Act was bipartisan legislation proposed in 2021 in response to the COVID-19 pandemic. The bill would “recapture” as many as 40,000 unused immigrant visas for nurses (25,000) and physicians (15,000). The spouses and dependents of the healthcare professionals would also be eligible to receive a green card.
The legislation did not gain traction when it was first proposed, however, U.S. Senate Majority Whip Dick Durbin (D-IL) and Senator Kevin Cramer (R-ND) reintroduced a similar bill in early November 2023.
“Over the years and during the COVID-19 pandemic, immigrant nurses and doctors have played a vital role in our health care system, and their contributions have undoubtedly saved countless lives,” Durbin said in a press release. “It is unacceptable that thousands of trained, highly qualified doctors currently working in the U.S. on temporary visas are stuck in the green card backlog, putting their futures in jeopardy and limiting their ability to contribute to our health care shortages across the country.”
The proposed bill is supported by multiple advocacy groups, including the American Medical Association, the American Health Care Association/National Center for Assisted Living and the National Immigration Forum.
Barnette also praised the proposed legislation.
“Passing the Healthcare Workforce Resilience Act would be a good start, especially for nurses, because they are more deeply affected by the green card backlog, since that is normally their only option,” Barnette said. “Hopefully that act will be passed and allow, at least temporarily, more green card access for physicians and nurses.”
Congress could also consider creating a nonimmigrant visa category available exclusively for qualified nurses. Previously, the H-1C nonimmigrant visa was available to address the shortage of nurses in the United States. That classification allowed nurses with a full license and who were qualified under requisite state laws to receive a visa for a period of up to three years to work in a “Health Professional Shortage Area.” The H-1C program was first created by Congress in 1999 and was allowed to expire a decade later.
“Creating a new visa category or bringing back the H-1C program would help with the nursing shortage,” Barnette said. “Especially with the current shortfall and employers desperate to meet the demand for nurses. … I think just in general, the foreign national workforce would be a great asset because of the motivation and desire they have to be in the United States and to do a good job.”
Below is further information about the options currently available for foreign national healthcare workers
Nonimmigrant visa options
F-1 students are eligible for Optional Practical Training (OPT) during or after their degree program, which is typically valid for one year. Those with STEM degrees are eligible for a two-year extension.
J-1 exchange visitor visas allow for temporary entry to the U.S. to participate in State Department designed exchange programs. Physicians may obtain J-1 status for graduate medical education.
TN visas are available for citizens of Canada or Mexico in certain professions, including nurses, medical laboratory technologists, PTs, OTs, pharmacists as well as physicians (if they are teaching or researching).
H-1B specialty occupation work visas are available for positions that require a bachelor’s degree or the equivalent of a U.S. bachelor’s degree. The employer must pay the H-1B recipient the “required wage.” A statutory cap limits the number of new H-1B petitions that may be approved in a fiscal year to 85,000. Some beneficiaries employed at specific institutions are “cap exempt.” H-1B visas are usually not an option for nurses. E-3 visas are a similar category available for Australian nationals.
O-1 extraordinary ability visas are available to foreign nationals exemplifying extraordinary ability in their field. Must show receipt of major, internationally recognized award or meet at least three categories from a specific criteria developed by USCIS.
Immigrant (green card) visa options
Physician National Interest Waivers allow doctors in the EB-2 preference category to bypass the PERM labor certification step, which is often the longest and most costly part of the green card process. The physician must agree to work full-time in a health shortage area (HPSA/MUA) or VA for five years and the state of employment must determine the position is in the public interest.
Schedule A immigrant visa petitions are available for professional nurses and physical therapists in the EB-2 or EB-3 preference category. The petition allows the foreign national to bypass the PERM labor certification process, as the DOL has predetermined there are not sufficient U.S. workers for these positions. The employer must post a Notice of Filing at the worksite, obtain a Prevailing Wage Determination and pay at least the prevailing wage. To be eligible for a Schedule A immigrant visa petition, nurses must have a license to practice, CGFNS certificate (or Josef Silny and Associates certificate) or have passed the NCLEX when the Form I-140 petition is filed. A CGFNS certificate and license or eligibility for license is required for a green card (Adjustment of Status or Immigrant Visa). Physical Therapists must have a license when the Form I-140 petition is filed as well as a FCCPT certificate and license to apply for a green card.
A majority of physicians enter the U.S. pursuant to the J-1 visa program to pursue graduate medical training, such as residency and fellowship. The 212(e) Home Residency Requirement mandates foreign national physicians with J-1 visas pursuing graduate medical training return to their home country for at least a two-year period before changing to certain nonimmigrant visa categories — enabling them to work in the U.S. — or seeking permanent residency in the United States. Interested Government Agency (IGA) and Conrad State 30 Waivers are mechanisms for bypassing the two-year home residency requirement if the physician agrees to work in a Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA).
- The IGA waiver requires a U.S. government agency to request a waiver for the physician if they are actively and substantially involved in a program or activity sponsored by or of interest to such agency. The Appalachian Regional Commission, Delta Regional Authority, Department of Veterans Affairs, DHHS and Southeast Crescent Regional Commission currently run the Federal program that regularly sponsors IGA waivers for physicians. Each agency has its own guidelines for recommending an IGA waiver.
- The Conrad State 30 program was initially created by the U.S. Congress in 1994. There are usually 30 slots available per state for physicians each government fiscal year. Some states also allocate up to 10 “flex spots.” Each state determines its own rules for granting Conrad 30 Waivers.
Please contact the attorneys at Garfinkel Immigration to learn more about immigration options for healthcare workers.
Further reading
Garfinkel Immigration Law Firm announces formation of new Healthcare Specialty Practice Group
Explaining the J-1 visa program
Biden administration, DHS release proposed rule altering H-1B visa program
Year in review: 2023 immigration updates and looking ahead to 2024