The US Department of Labor has pre-certified that there is a shortage of Registered Nurses in the United States. It has therefore placed Registered Nurses on what is called “Schedule A.” What this means, is that petitions for Registered Nurses are not first filed with the Department of Labor, but rather, they skip that step and are filed directly with USCIS.
Schedule A occupations fall under the EB-3 Skilled Worker category for Immigrant Visas.
In order to qualify for an Immigrant Visa, the Registered Nurse must have passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) examination, have received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS), or hold a permanent, full and unrestricted license to practice in the state of intended employment.
In order to actually receive Permanent Residence (Green Card), the Registered Nurse must have received the Visa Screen CGFNS Certificate, and an Immigrant Visa in the EB-3 category must be available for the date on which the I-140 petition was filed.
In addition to the nursing requirements, The VisaScreen Certificate requires that the Nurse achieve passing scores on a battery of tests testing her/his knowledge of the English Language.1 In order to meet the English requirements, the nurse must achieve at least the following scores:
It is important that you take these exam requirements seriously and begin preparations for them as early as possible. Some of the required scores are hard to achieve. If you do not pass, the USCIS will deny your Application for Adjustment of Status or the Department of State will deny your visa application. If you do not pass, you will not get the green card.
You must have the visa screen at the time you file the I-485 Application for Adjustment of Status. If you do not, USCIS will give you only 30 days to obtain it and submit it, or they will deny your Adjustment of Status. Thirty days is not enough time to obtain the Visa Screen, even if you have already passed the required tests.
1 Nurses who graduated from nursing programs in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, or the United States do not have to take the English exams, but must still obtain the Visa Screen.
The process involves two steps: 1) Labor Certification Application and Immigrant Petition for Alien Employee; and 2) Adjustment of Status or Immigrant Visa Application.
Normally, an employer is required to prove to the Department of Labor that it cannot find US workers for the position. Because the Department of Labor has already determined that there are not enough nurses to meet the demand for nurses in the US, nurses are classified as “Schedule A”, which means that no forms get filed with the Department of Labor.
The employer is required to provide notice to the Bargaining Representative, if the position is unionized, or to its other employees, if the position is not unionized, that the labor certification/immigrant worker petition will be filed and to provide them with an opportunity to submit comments to the US Department of Labor.
The notice must be posted in a conspicuous place, normally the place the employer posts its job openings. Also, if the employer posts job openings on an intra–net web site, in newsletters, or other media, the employer must post the notice of the filing of the Labor Certification in these media as well.
The Application for Permanent Employment Certification (ETA 9089), which details the position and its requirements, the qualifications of the employee, must be prepared.
On the form, the Employer is required to make a number of attestations, and must therefore have the necessary documentation to support the attestations. These attestations include that the employer will pay at least the prevailing wage for the position.
The Department of Labor requires that the employer be solely responsible for the costs involved in the preparation of the Application for Permanent Employment Certification (ETA 9089). All other costs may be paid by either the employer or the nurse.
Our firm would prepare the forms and would assist in ensuring that the required documentation is available. The employer is required to retain this documentation for a period of five years from the date of filing of the Labor Certification.
Department of Labor regulations promulgated on May 17, 2007, require that the employer pay all costs associated with the preparation of the Labor Certification Form, including attorney’s fees.
The ETA–9089 must then be filed, together with the Immigrant Petition for Alien Worker (Form I–140) with the US Citizenship and Immigration Services.
The Immigrant Petition establishes the preference classification for the employment based permanent residence, 3rd Preference, and the Priority Date. This filing must evidence that the employer has the ability to pay the wage offered on the Application for Permanent Employment Certification, and evidence that the nurse meets the minimum education, experience and/or special skills required in the Labor Certification.
Important: An approved I–140 is not a work permit, does not authorize the nurse to be employed, and does not give the nurse any immigration status.
Recently, the US Department of State, through its monthly Visa Bulletin, confirmed an oversubscription of permanent residence approval in the relevant Employment Based 3rd Preference category, which has caused a worldwide backlog.
What this means is that in most instances, even if the US Citizenship and Immigration Services approves the Immigrant Petition for Alien Worker, there will be a “wait time” of potentially 4 to 8 years, depending on the nurse’s country of birth, to complete the permanent residence processing through either: 1) the Application to Register Permanent Residence or Adjust Status (Form I–485) filed in the US, or 2) the Immigrant Visa Application filed with the appropriate US Embassy abroad. Due to the current extended “wait time,” it is not necessary to plan or decide on these choices at this time.
The nurse can only proceed to Step #2 once your Priority Date is current, and if the nurse is in the US, then only if the nurse is in valid immigration status, or qualifies for 245(i).
The law requires that the position through which a foreign worker gets a “green card” be a full–time position.
Legally, this means that you cannot have any say in the recruitment process. The application could be denied if the employer is a closely held corporation, partnership, or sole proprietorship in which the nurse has an ownership interest, or an application in which the nurse has a familial relationship with the owners, stockholders, partners, corporate officers, or incorporators of the company.
The requirements that are regarded as normal for the occupation are those that the US Department of Labor has established, through their various studies, are the minimum requirements to be able to perform the duties of the position. The requirements cannot be tailored to the nurse’s experience and education. For example, a company cannot require a M.D. degree from a nurse simply because the nurse happen to have a M.D. degree.
Because the whole process is designed to encourage the hiring of US workers, the law requires that the salary/wage offered must be equal to or greater than the “prevailing wage.” If a range is used, the lower end of the range must be equal to or greater than the “prevailing wage.”
If the position is unionized, the “prevailing wage” is the wage determined by the collective bargaining agreement.
If the position is not unionized, the “prevailing wage” is the mean, or if the mean is not available, the median, of the wages being paid for the position in the area where the position is located.
The US Department of Labor generally uses a survey they have conducted for immigration purposes. This survey, which has four levels, is available at http://www.flcdatacenter.com.
Alternatively, an employer can submit alternate surveys. However, the US Department of Labor has final word on accepting these alternate surveys.
Alternate surveys should be for the position in the area of employment. They must include a large enough sample, usually at least eight different employers, must reflect the actual salaries paid by the participating employers to its workers in the position in question, and must show the mean, or mathematical average of these wages.
Unfortunately, it is impossible to provide an accurate timeline. The process is a multi–step and multi–form process, with each step and each form having different and constantly varying processing times.
However, as of this time, it is safe to say that the whole process will almost certainly take several years.
The process involves two steps: 1) Labor Certification Application and Immigrant Petition for Alien Employee; and 2) Adjustment of Status or Immigrant Visa Application.
Normally, an employer is required to prove to the Department of Labor that it cannot find US workers for the position. Because the Department of Labor has already determined that there are not enough nurses to meet the demand for nurses in the US, nurses are classified as “Schedule A”, which means that no forms get filed with the Department of Labor.
Your employer is required to provide notice to the Bargaining Representative, if the position is unionized, or to its other employees, if the position is not unionized, that the labor certification/immigrant worker petition will be filed and to provide them with an opportunity to submit comments to the US Department of Labor.
The notice must be posted in a conspicuous place, normally the place the employer posts its job openings. Also, if the employer posts job openings on an intra–net web site, in newsletters, or other media, the employer must post the notice of the filing of the Labor Certification in these media as well.
The Application for Permanent Employment Certification (ETA 9089), which details the position and its requirements, and your qualifications, must be prepared.
On the form, your Employer is required to make a number of attestations, and must therefore have the necessary documentation to support the attestations. These attestations include that your employer will pay at least the prevailing wage for the position.
The Department of Labor requires that your employer be solely responsible for all the costs related to the preparation of the Application for Permanent Employment Certification (ETA 9089). Either you or your employer may pay the rest of the fees.
Our firm would prepare the forms and would assist in ensuring that the required documentation is available. Your employer is required to retain this documentation for a period of five years from the date of filing of the Labor Certification.
Department of Labor regulations promulgated on May 17, 2007, require that the employer pay all costs associated with the preparation of the Labor Certification Form, including attorney’s fees.
The ETA-9089 must then be filed, together with the Immigrant Petition for Alien Worker (Form I–140) with the US Citizenship and Immigration Services.
The Immigrant Petition establishes the preference classification for your employment based permanent residence, 3rd Preference, and the Priority Date. This filing must evidence that your employer has the ability to pay the wage offered on the Application for Permanent Employment Certification, and evidence that you meet the minimum education, experience and/or special skills required in the Labor Certification.
Important: An approved I–140 is not a work permit, does not authorize you to be employed, and does not give you any immigration status.
You must have the VisaScreen before you can proceed to this step, as you will not have time to get it during the processing of this step.
Recently, the US Department of State, through its monthly Visa Bulletin, confirmed an oversubscription of permanent residence approval in the relevant Employment Based 3rd Preference category, which has caused a worldwide backlog.
What this means is that in most instances, even if the US Citizenship and Immigration Services approves the Immigrant Petition for Alien Worker, there will be a “wait time” of potentially 4 to 8 years, depending on your country of birth, to complete your permanent residence processing through either: 1) the Application to Register Permanent Residence or Adjust Status (Form I–485) filed in the US, or 2) the Immigrant Visa Application filed with the appropriate US Embassy abroad. Due to the current extended “wait time,” it is not necessary to plan or decide on these choices at this time.
You can only proceed to Step #2 once your Priority Date is current, and if you are in the US, then only if you are in valid immigration status, or qualify for 245(i).
The law requires that the position through which a foreign worker gets a “green card” be a full–time position.
Legally, this means that you cannot have any say in the recruitment process. The application could be denied if the employer is a closely held corporation, partnership, or sole proprietorship in which you have an ownership interest, or an application in which you have a familial relationship with the owners, stockholders, partners, corporate officers, or incorporators of the company.
The requirements that are regarded as normal for the occupation are those that the US Department of Labor has established, through their various studies, are the minimum requirements to be able to perform the duties of the position. The requirements cannot be tailored to your experience and education. For example, a company cannot require a M.D. degree from a nurse simply because you happen to have a M.D. degree.
Because the whole process is designed to encourage the hiring of US workers, the law requires that the salary/wage offered must be equal to or greater than the “prevailing wage.” If a range is used, the lower end of the range must be equal to or greater than the “prevailing wage.”
If the position is unionized, the “prevailing wage” is the wage determined by the collective bargaining agreement.
If the position is not unionized, the “prevailing wage” is the mean, or if the mean is not available, the median, of the wages being paid for the position in the area where the position is located.
The US Department of Labor generally uses a survey they have conducted for immigration purposes. This survey, which has four levels, is available at http://www.flcdatacenter.com.
Alternatively, an employer can submit alternate surveys. However, the US Department of Labor has final word on accepting these alternate surveys.
Alternate surveys should be for the position in the area of employment. They must include a large enough sample, usually at least eight different employers, must reflect the actual salaries paid by the participating employers to its workers in the position in question, and must show the mean, or mathematical average of these wages.
Unfortunately, it is impossible to provide an accurate timeline. The process is a multi–step and multi–form process, with each step and each form having different and constantly varying processing times.
However, as of this time, it is safe to say that the whole process will almost certainly take several years.