[House Report 106-135]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-135
_______________________________________________________________________
NURSING RELIEF FOR DISADVANTAGED AREAS ACT OF 1999
_______________________________________________________________________
May 12, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 441]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 441) to amend the Immigration and Nationality Act
with respect to the requirements for the admission of
nonimmigrant nurses who will practice in health professional
shortage areas, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
TABLE OF CONTENTS
Page
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 2
Hearings................................................... 6
Committee Consideration.................................... 6
Vote of the Committee...................................... 6
Committee Oversight Findings............................... 6
Committee on Government Reform Findings.................... 6
New Budget Authority and Tax Expenditures.................. 6
Congressional Budget Office Cost Estimate.................. 6
Constitutional Authority Statement......................... 8
Section-by-Section Analysis and Discussion................. 8
Changes in Existing Law Made by the Bill, as Reported...... 13
Purpose and Summary
H.R. 441 would create a new ``H-1C'' temporary visa program
for registered nurses that would sunset after four years. The
new program would be modeled after the expired ``H-1A'' program
but would limit the number of visas that could be issued to 500
a year and would only allow ``in-need'' hospitals who meet
certain criteria to petition for alien nurses.
Background and Need for the Legislation
I. The H-1A Registered Nurse Temporary Visa Program
The H-1A program was created by the Immigration Nursing
Relief Act of 1989 [INRA] \1\ and expired on September 1, 1995.
Legislation enacted in the 104th Congress allowed nurses who
had entered the United States under the program to stay and
work as registered nurses until September 30, 1997.\2\ However,
amendments to extend the H-1A program for 6 months were
defeated both in the Judiciary Committee and on the House floor
during consideration of immigration reform legislation in the
104th Congress.\3\
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\1\ Pub. L. No. 101-238 (1989). See sections 101(a)(15)(H)(i)(a)
and 212(m) of the Immigration and Nationality Act (hereinafter cited as
``INA'').
\2\ Pub. L. 104-302 (1996).
\3\ See Congressional Quarterly Almanac: 1996 at H-30.
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The H-1A program had no numerical cap. In 1993, a
representative year, 6,506 aliens were admitted pursuant to the
H-1A program. Nurses could stay for an initial period of 3
years, subject to extension up to a total of 5 years (6 years
in case of extraordinary circumstances).\4\
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\4\ INA sec. 212(m)(4).
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INRA was enacted in response to a number of contrasting
factors, including the existence of ``[a] nationwide nursing
shortage severe enough to disrupt the delivery of services to
patients in some U.S. health care institutions and potentially
place patients in jeopardy'' and ``[c]oncern among labor
organizations . . . that foreign workers [entering under the
then-existing temporary visa program] were having, or, given
their rate of entry, might come to have, a detrimental effect
on the pay and working conditions of the domestic work force .
. . .'' \5\
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\5\ Immigration Nursing Relief Advisory Committee, Report to the
Secretary of Labor on the Immigration Nursing Relief Act of 1989 11
(1995)(``Report'').
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Under the H-1A program, an alien had to:
[have] obtained a full and unrestricted license to
practice professional nursing in the country where the
alien obtained nursing education or has received
nursing education in the United States or Canada;
[have] passed an appropriate examination . . . or
[have] a full and unrestricted license under State law
to practice professional nursing in the State of
intended employment; and
is fully qualified and eligible under the laws . . .
governing the place of intended employment to engage in
the practice of professional nursing as a registered
nurse immediately upon admission to the United States
and is authorized under such laws to be employed by the
facility.\6\
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\6\ INA section 212(m)(1)(A)-(C).
Under the H-1A program, the intending employer had to
attest that:
[t]here would be a substantial disruption through no
fault of the [employer] in the delivery of health care
services . . . without the services of such an alien[,]
\7\
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\7\ In order to meet the terms of this attestation, the employer
generally could not have laid off registered nurses within the previous
year. INA sec. 212(m)(2)(A).
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[t]he employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed[,]
[t]he alien employed by the [employer] will be paid
the wage rate for registered nurses similarly employed
by the [employer,]
[e]ither . . . the [employer] has taken and is taking
timely and significant steps designed to recruit and
retain sufficient registered nurses who are United
States citizens or immigrants who are authorized to
perform nursing services, in order to remove as quickly
as reasonably possible the dependence of the [employer]
on [H-1A] registered nurses, or . . . the [employer] is
subject to an approved State plan for the recruitment
and retention of nurses[,]
[t]here is not a strike or lockout in the course of a
labor dispute, and the employment of an [H-1A] alien is
not intended or designed to influence an election for a
bargaining representative for registered nurses of the
[employer, and]
. . . notice of the [petitioning for H-1A nurses] has
been provided . . . to the bargaining representative of
the registered nurses at the [employer], or where there
is no such bargaining representative, notice of the
filing has been provided to the registered nurses
employed at the [employer's] facility . . . .\8\
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\8\ INA section 212(m)(2)(A).
The Labor Department had the responsibility of
investigating complaints that an employer did not meet the
conditions attested to or misrepresented a material fact in the
attestation.\9\ If an employer was found to have committed a
violation, the employer would be barred from getting new H-1A
petitions approved for at least one year, could be fined up to
$1,000 per violation, and could be required to provide back pay
if H-1A nurses were underpaid.\10\
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\9\ INA section 212(m)(2)(E).
\10\ Id.
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II. The Immigration Nursing Relief Advisory Committee
INRA established the Immigration Nursing Relief Advisory
Committee to measure the impact of INRA on the nursing shortage
and to advise on whether the H-1A program should be extended.
The Committee found that:
H-1A nurses . . . do not constitute a significant national
presence.\11\ They fill multiple roles in the United States,
working in a variety of positions: [1] Positions that are
difficult to fill or for which they have special
qualifications: e.g., intensive care units, labor and delivery
units, operating rooms, psychiatric units, and long term care
facilities; [2] Regular, bedside staff positions in hospitals
and nursing homes; [3] Evening, night, and weekend shifts; and
[4] Positions where their language, race, or ethnicity is
considered of value in providing services to multi-ethnic
patients.\12\
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\11\ There were over 1.85 million registered nurses working in
nursing in the United States in 1992. Report at Appendix F, page 45.
\12\ Id. at 21.
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[T]he New York-City-Newark, Chicago, Houston, Los
Angeles, and Miami [areas] have accounted for two-
thirds of all petitions filed . . . .\13\
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\13\ Id. at 22.
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[O]ver 80 percent of approved petitions . . . were
for nurses from the Philippines.\14\
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\14\ Id. at 25.
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In the local labor markets studied . . . H-1A nurses
were [not] paid differently from U.S. nurses.\15\
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\15\ Id. The national average salary for full-time staff nurses
working in hospitals was $35,200 in 1992. Id. at Appendix F, page 64.
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[T]here was no evidence of systematic differences in
work assignments given to H-1A . . . nurses.\16\
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\16\ Id. at 26.
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[T]here were no indications of problems with H-1A
nurses . . . in delivering care . . . .\17\
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\17\ Id. at 27.
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Although the national [nursing] shortage of the late
1980s has abated, this change could not be attributed
to INRA. Market adjustments--increasing wages,
increasing numbers of nursing graduates, and changing
demand--were much more powerful and, ultimately,
effective in ending the national shortage.\18\
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\18\ Id. at 30.
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The future labor market for registered nurses is
highly uncertain. . . . The most recent projections of
employment for RNs by the Bureau of Labor Statistics
indicate an increase of 40 percent by 2005, far greater
than the growth projected for employment generally.
Decreases in the number of nursing graduates may be
ahead in this decade with the possibility of RN
shortages again in the 21st century.\19\
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\19\ Id. at 31-32 (footnotes omitted).
Three Committee members--representing the AFL-CIO, the
American Nurses Association, and the Service Employees
International Union--filed dissenting views. They found that
``[t]he overwhelming preponderance of evidence indicates that
the nursing shortage of the 1980s was a transitory phenomenon.
If anything, today there is a slight oversupply of nurses and
that oversupply is likely to increase in the future.'' \20\
They also found that ``since 1990, the health care industry has
been actively restructuring, a process that has been dominated
by hospital downsizing. Today, hospitals are laying off nurses
or restructuring their jobs to reduce or eliminate their
bedside responsibilities.'' \21\
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\20\ Id. at Appendix A, page 1.
\21\ Id. at Appendix A, page 2.
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The Committee recommended that:
[The H-1A program should be extended with modifications] to
balance both the continuing need for foreign nurses in certain
specialties and localities for which there are not adequate
domestic RNs and the need to continue to lessen employers'
dependence on foreign RNs and protect the wages and working
conditions of U.S. RNs. In addition . . . the uncertainty about
future demand for RNs and the possibility of future shortages
as evidenced by the cyclical nature of past RN shortages,
argues for a more cautious approach to the elimination or
reduction in temporary foreign RN entry into the United
States.\22\
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\22\ Id. at 35.
The dissenters recommended that the H-1A program be allowed
to sunset. However, ``[i]f the H-1A Visa program is retained
then hospitals should be restricted to using H-1A nurses
limited to those specific shortage areas or to meet special
requirements, such as language ability.'' \23\
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\23\ Id. at Appendix A, page 7.
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III. H.R. 441
There does not appear to be a national nursing shortage
today; however, a number of hospitals with unique circumstances
are still experiencing great difficulty in attracting American
nurses.\24\ Hospitals serving mostly poor patients have special
difficulties. Some hospitals in rural areas might also. For
example:
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\24\ Neil Sampson, Acting Associate Administrator for Health
Professions, Health Resources and Services Administration, U.S.
Department of Health and Human Services, has stated that ``[t]he best
information currently available indicates that there is not a national
shortage of registered nurses. There are a few areas in which specialty
and locality shortages persist.'' Hearing Before the Immigration and
Claims Subcomm. of the House Judiciary Comm., 105th Cong., 1st Sess.
(Nov. 5, 1997).
St. Bernard Hospital and Health Care Center . . . is
located on the South side of Chicago in the Englewood
Community. It is the only remaining hospital in an area
with a census in excess of 100,000 and the patient base
is almost entirely poverty care or charity care. . . .
St. Bernard almost closed its doors in 1992,
primarily because of its inability to attract health
care professionals, most importantly registered
nurses.\25\
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\25\ Id. (statement on behalf of St. Bernard Hospital and Mercy
Regional Medical Center).
H.R. 441 bill has been drafted very narrowly to help
precisely these kinds of hospitals. Thus, it is built around
the area of consensus between the majority and dissenting
members of Immigration Nursing Relief Advisory Committee.
H.R. 441 would create a new temporary registered nurse visa
program designated ``H-1C'' that would provide up to 500 visas
a year and that would sunset in four years. To be able to
petition for an alien, an employer would have to meet four
basic conditions. First, the employer would have to be located
in a health professional shortage area as designated by the
Department of Health and Human Services. Second, the employer
would have to have at least 190 acute care beds. Third, a
certain percentage (35%) of the employer's patients would have
to be Medicare patients. Fourth, a certain percentage (28%) of
patients would have to be Medicaid patients. The bill contains
the most important safeguards found in the H-1A program and has
added ones of its own.
The American Nursing Association has written that: ``[w]ith
regard to H.R. 441, ANA has taken a position of neutrality.
However, ANA will adamantly oppose any amendments which seek to
broaden the application of this visa or would lessen the
protections afforded registered nurses under this measure.''
\26\
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\26\ Letter from Beverly Malone, President, American Nurses
Association, to U.S. Representative Sheila Jackson Lee (March 18,
1999).
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Hearings
No hearings were held on H.R. 441. However, the Committee's
Subcommittee on Immigration and Claims held one day of hearings
on its predecessor bill [H.R. 2759] in the 105th Congress on
November 5, 1997. Testimony was received from U.S.
Representative Bobby Rush; Neil Sampson, Acting Associate
Administrator for Health Professions, Health Resources and
Services Administration, U.S. Department of Health and Human
Services; Ron Campbell, Vice President for Patient Care
Services, St. Bernard Hospital and Health Care Center, Chicago,
Illinois; Cheryl Peterson, Associate Director for Federal
Government Relations, American Nurses Association; and Mark
Stauder, President and Chief Operating Officer, Mercy Regional
Medical Center, Laredo, Texas.
Committee Consideration
On March 18, 1999, the Subcommittee on Immigration and
Claims met in open session and ordered reported the bill H.R.
441 by a voice vote, a quorum being present. On March 24, 1999,
the Committee met in open session and ordered reported
favorably the bill H.R. 441 by a voice vote, a quorum being
present.
Vote of the Committee
The bill was reported favorably by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 3(c)(4) of Rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill H.R. 441, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 2, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 441, the Nursing
Relief for Disadvantaged Areas Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for costs of the Immigration and Naturalization
Service), who can be reached at 226-2860, Christi H. Sadoti
(for costs of the Department of Labor), who can be reached at
226-2820, Lisa Cash Driskill (for the state and local impact),
who can be reached at 225-3220, and John Harris (for the
private-sector impact), who can be reached at 226-6910.
Sincerely,
Dan L. Crippen, Director.
Enclosure.
H.R. 441--Nursing Relief for Disadvantaged Areas Act of 1999
CBO estimates that enacting H.R. 441 would have a
negligible net impact on the federal budget. Because the bill
would affect direct spending and receipts, pay-as-you-go
procedures would apply. However, we estimate that the amounts
involved would be much less than $500,000 a year. This
legislation contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA). Any costs incurred
by state, local, or tribal governments would be a result of
voluntary participation in the program established by this
bill. H.R. 441 would impose a new private-sector mandate on
employers of nonimmigrant nurses who come to the United States
under the bill. CBO estimates that the costs of complying with
this mandate would fall well below the statutory threshold
established in UMRA ($100 million in 1996, adjusted annually
for inflation).
H.R. 441 would establish a new nonimmigrant category for
nurses who would work in areas of the United States with
shortages of health professionals. The bill would authorize the
issuance of 500 nonimmigrant visas annually over the next four
years for individuals in this category, and recipients could
stay in the United States for three years. The fee charged for
these visas would be $110, so enacting the bill could increase
the amount of fees collected by the Immigration and
Naturalization Service (INS) by about $55,000 annually if all
500 visas were granted. The INS would spend the fees (without
appropriation action), mostly in the year in which they were
collected, so enacting H.R. 441 would result in a negligible
net impact on INS spending.
The bill would require the Department of Labor (DOL) to
charge fees of up to $250 to facilities that file applications
to hire immigrant nurses. This provision would result in the
collection of fees totaling between $15,000 and $50,000
annually, assuming all visas are granted and petitioning
facilities apply to hire more than one worker. The spending of
fees collected by DOL would be subject to appropriation action.
In addition, the bill would increase civil monetary
penalties for violations of certain laws relating to the hiring
of nonimmigrant nurses. This action could result in the
collection of additional receipts, but we estimate that any
such amounts would be less than $500,000 per year.
By creating a new nonimmigrant visa program for qualified
nurses, the bill would allow certain health facilities, some of
them operated by state and local public agencies, to increase
the number of nurses they employ. In order to participate,
these facilities would have to satisfy criteria established in
the bill and pay the fee to DOL as described above. However,
their participation in the program would be voluntary.
H.R. 441 would impose a new private-sector mandate on
employers of nonimmigrant nurses who come to the United States
under the program established by the bill. Although employers
who use nonimmigrant nurses would do so voluntarily, such
employers would have to comply with requirements of the
applicable federal immigration programs. They would be required
to provide certain information, wages, working conditions, and
rights to unionization commensurate with those of similarly
employed nurses who are citizens or immigrants. These
enforceable duties meet the definition of a private-sector
mandate in UMRA because immigration processes are
governmentally mandated and are not considered voluntary
federal programs. CBO estimates that the direct cost of new
mandates in H.R. 441 would be very small because the number of
nonimmigrant nurses allowed to enter the United States under
this legislation would be limited to 500 or fewer each year.
The CBO staff contacts are Mark Grabowicz (for INS costs),
who can be reached at 226-2860, Christi H. Sadoti (for DOL
costs), who can be reached at 226-2820, Lisa Cash Driskill (for
the state and local impact), who can be reached at 225-3220,
and John Harris (for the private-sector impact), who can be
reached at 226-6910. This estimate was approved by Robert A.
Sunshine, Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 4 of the
Constitution.
Section-By-Section Analysis
Section 1. Short title
The Act may be cited as the ``Nursing Relief for
Disadvantaged Areas Act of 1999.''
Section 2. Requirements for admission of nonimmigrant nurses in health
professional shortage areas during 4-year period
Section 2(a) of the bill amends section 101(a)(15)(H)(i) of
the Immigration and Nationality Act by adding a subclause (c)
creating a nonimmigrant visa program for aliens to perform
services as registered nurses. To qualify for an ``H-1C'' visa,
an alien would have to meet the three qualifications set forth
in section 2(b) of the bill and the facility for which the
alien would perform nursing services must have an unexpired
attestation on file and in effect with the U.S. Secretary of
Labor, as described in section 2(b) of the bill.
Section 2(b) of the bill amends section 212(m)(1) of the
INA in order that it set forth the three qualifications an
alien must possess. First, the alien must have obtained a full
and unrestricted license to practice professional nursing in
the country where the alien obtained nursing education or has
received nursing education in the United States. Second, the
alien must have passed an appropriate examination or has a full
and unrestricted license under State law to practice nursing in
the State of intended employment. Third, the alien must be
fully qualified and eligible under the laws governing the place
of intended employment to engage in the practice of nursing as
a registered nurse immediately upon admission to the United
States and is authorized under such laws to be employed by the
facility.
Section 2(b) amends section 212(m)(2)(A) of the INA in
order that it describe the attestation that a facility must
make. The facility must attest that (1) it meets the
requirements of section 212(m)(6) of the INA, (2) the
employment of the alien will not adversely affect the wages and
working conditions of registered nurses similarly employed, (3)
the alien will be paid the wage rate for registered nurses
similarly employed by the facility, (4) the facility has taken
(after the date of enactment of this bill) and is taking timely
and significant steps designed to recruit and retain sufficient
registered nurses who are U.S. citizens or immigrants who are
authorized to perform nursing services, in order to remove as
quickly as reasonably possible the dependence of the facility
on nonimmigrant registered nurses, (5) there is not a strike or
lockout in the course of a labor dispute, the facility did not
lay off and will not lay off a registered nurse employed by the
facility within the period beginning 90 days before and ending
90 days after the date of filing of any H-1C visa petition, and
the employment of such an alien is not intended or designed to
influence an election for a bargaining representative for
registered nurses of the facility, (6) at the time of the
filing of the petition for H-1C nurses, notice of the filing
has been provided by the facility to the bargaining
representative of the registered nurses at the facility, or,
where there is no bargaining representative, notice of the
filing has been provided to registered nurses employed at the
facility through posting in conspicuous locations, (7) the
facility will not, at any time, employ a number of aliens
issued H-1C visas or otherwise provided H-1C nonimmigrant
status that exceeds 33% of the total number of registered
nurses employed by the facility, and (8) the facility will not,
with respect to any alien issued an H-1C visa or otherwise
provided H-1C status, authorize the alien to perform nursing
services at any worksite other than a worksite controlled by
the facility or transfer the place of employment of the alien
from one worksite to another. A copy of the attestation shall
be provided to registered nurses employed at the facility.
Section 2(b) amends section 212(m)(2)(B) of the INA so that
it provides a non-exclusive list of ``significant steps'' to
recruit and retain registered nurses: (1) operating a training
program for registered nurses at the facility or financing (or
providing participation in) a training program for registered
nurses elsewhere, (2) providing career development programs and
other methods of facilitating health care workers to become
registered nurses, (3) paying registered nurses wages at a rate
higher than currently being paid to registered nurses similarly
employed in the geographic area, and (4) providing reasonable
opportunities for meaningful salary advancement by registered
nurses. A facility does not need to take more than one step if
it can demonstrate that taking a second step is not reasonable.
Section 2(b) amends section 212(m)(2)(C) of the INA to
provide that attestations shall expire on the later of (1) the
end of the one-year period beginning on the date of its filing,
or (2) the end of the period of admission of the last alien
with respect to whose admission it was applied, and shall apply
to petitions filed during the one-year period beginning on the
date of its filing if the facility states in each such petition
that it continues to comply with the conditions of the
attestation.
Section 2(b) amends section 212(m)(2)(D) of the INA to
provide that a facility may meet the requirements of paragraph
212(m)(2) with respect to more than one registered nurse in a
single petition.
Section 2(b) of the bill amends section 212(m)(2)(E) of the
INA to provide that the Secretary of Labor shall compile and
make available for public examination a list identifying
facilities that have filed petitions for H-1C nonimmigrants
(along with copies of attestations, accompanying documentation
and petitions filed).
Section 212(m)(2)(E) is also amended to provide that the
Secretary of Labor shall establish a process, including
reasonable time limits, for the receipt, investigation, and
disposition of complaints respecting a facility's failure to
meet attested to conditions or misrepresentation of a material
fact in an attestation. Complaints may be filed by aggrieved
persons or organizations (including bargaining
representatives). The Secretary shall conduct an investigation
if there is reasonable cause to believe that a violation has
occurred. The Secretary shall provide for a determination
within 180 days of the filing of a complaint as to whether or
not a basis exists to make a finding that a violation has
occurred, and provide notice and opportunity for a hearing to
interested parties if the Secretary finds that a basis does
exist. If the Secretary finds that a violation (failure to meet
attested to conditions or misrepresentation of a material fact
in an attestation) has occurred, the Secretary shall notify the
Attorney General of such finding, and may, in addition, impose
other appropriate administrative remedies (including civil
monetary penalties not to exceed $1,000 per nurse per violation
with a total penalty not to exceed $10,000 per violation). The
Secretary shall order the payment of back pay as may be
necessary to put a facility in compliance with the prevailing
wage requirement. Upon receipt of notice that a violation has
occurred, the Attorney General shall not approve H-1C petitions
filed with respect to a facility during a period of at least
one year.
Section 2(b) of the bill creates a new section 212(m)(2)(F)
of the INA providing for a filing fee for attestations (based
on the costs to the Secretary of Labor of operating the H-1C
program but not to exceed $250).
Section 2(b) of the bill amends section 212(m)(3) of the
INA to provide that the period of admission of an H-1C
nonimmigrant shall be three years.
Section 2(b) of the bill amends section 212(m)(4) of the
INA to provide that the total number of nonimmigrant visas
issued pursuant to H-1C petitions in a fiscal year shall not
exceed 500. The number of visas issued for employment in each
state in a fiscal year shall not exceed 25 for states with
populations of less than 9,000,000 and 50 for states with
larger populations. If the total number of visas available for
a fiscal year quarter exceeds the number of qualified
nonimmigrants who may be issued visas during those quarters,
the visas made available shall be issued without regard to the
per state limitations during the last fiscal year quarter.
Section 2(b) of the bill amends section 212(m)(5) of the
INA to provide that a facility participating in the H-1C
program shall provide H-1C nonimmigrants with a wage rate and
working conditions commensurate with those of nurses similarly
employed by the facility, shall require H-1C nonimmigrants to
work hours commensurate with those of nurses similarly employed
by the facility, and shall not interfere with the right of H-1C
nonimmigrants to join or organize a union.
Section 2(b) of the bill creates a new section 212(m)(6) of
the INA providing that for a facility to be able to participate
in the H-1C program, it must be a hospital defined in section
1886(d)(1)(B) of the Social Security Act, be located in a
health professional shortage area (as of March 31, 1997, and as
defined in section 332 of the Public Health Service Act), have
not less than 190 acute care beds, and have not less than 35%
of its total number of acute care impatient days made up of
patients who were entitled to benefits under Part A of title
XVIII of the Social Security Act and have not less than 28%
made up of patients who were eligible for assistance under a
State plan approved under title XIX of the Social Security
Act).
Section 2(b) of the bill creates a new section 212(m)(7) of
the INA defining the term ``lay off'' for purposes of the H-1C
program.
Section 2(c) of the bill strikes the designation (at
section 101(a)(15)(H)(i)(a) of the INA) of the expired ``H-1A''
nonimmigrant nursing program.
Section 2(d) of the bill provides that not later than 90
days after the bill's enactment, the Secretary of Labor (in
consultation with the Secretary of Health and Human Services)
and the Attorney General shall promulgate final or interim
final regulations to carry out the H-1C program.
Section 2(e) of the bill provides that facilities may file
H-1C petitions only during the four year period beginning on
the date that interim or final regulations are first
promulgated.
Section 3. Recommendations for alternative remedy for nursing shortage
Section 3 of the bill provides that by no later than the
conclusion of the H-1C program, the Secretary of Health and
Human Services and the Secretary of Labor are required to
submit recommendations to Congress on a program to eliminate
the dependence of certain hospitals on H-1C foreign nurses by
providing for a permanent resolution to the current shortage of
American nurses at some rural and urban locations. They also
must recommend a program for more effectively enforcing the
qualification and attestation requirements for nurses under the
program. While this provision accords a 4-year period for the
submission of the recommendations, it is anticipated that an
effort will be made to submit them as soon as possible. This is
particularly true of the recommendation for a program to
enforce the qualification and attestation requirements for the
nurses. Enforcement is an immediate need.
This provision grants the Secretaries the discretion to
determine what measures should be considered as
recommendations. Possible measures might include the
development of programs to recruit more college-educated
persons into the nursing profession, programs to retain people
who have already entered the profession, programs to provide
financial assistance to young people who are willing to work in
economically deprived rural and urban areas but do not have the
financial means to pay for a nursing education, and studies to
determine what factors would encourage experienced nurses to
work in the rural and urban communities that are experiencing
shortages. In addition, consideration might be given to
expanding the federal programs that already address some of
these problems and to the possibility of creating new federal
programs. Finally, consideration might be given to ways of
implementing the recommendations.
Section 4. Certification for certain alien nurses
Section 4 of the bill provides a limited exemption from
section 212(a)(5)(C) of the INA. That section provides for a
certification process for aliens seeking to enter the United
States to work as non-physician health care workers. The
section is designed to ensure that the credentials of alien
health care workers are authentic and that they have sufficient
training and English language ability to adequately perform
their jobs.
Section 4 provides that section 212(a)(5)(C) shall not
apply to an alien seeking to work as a nurse where the
Commission on Graduates of Foreign Nursing Schools (or an
approved equivalent independent credentialing organization)
certifies that the alien (1) has a valid and unrestricted
license in the state of intended employment and such state
verifies the alien's license as authentic and unencumbered, (2)
has passed the National Council Licensure Examination, (3) is
the graduate of a nursing program in which the language of
instruction was English, and either the Commission has
designated the country where the nursing program is located
within 30 days of the enactment of the bill based on an
assessment that the quality of nursing education in that
country and the English language proficiency of those who
complete nursing programs in that country are of sufficient
quality or the Commission and any approved credentialing
organizations unanimously agree to the country's designation
based on such an assessment, and (4) is a graduate of a nursing
program which was in operation on or before the date of
enactment of the bill or has been approved by unanimous
agreement of the Commission and any approved credentialing
organizations.
The effective date of the amendments made by section 4 is
the date of enactment of the bill, regardless of whether or not
final regulations to carry out such amendments have been
promulgated. The Commission or any approved equivalent
independent credentialing organization must issue statements
certifying the qualifications of the nurses not more than 35
days after the receipt of completed applications for such
statements.
H.L.C.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) * * *
* * * * * * *
(15) The term ``immigrant'' means every alien except an
alien who is within one of the following classes of
nonimmigrant aliens--
(A) * * *
* * * * * * *
(H) an alien (i) [(a) who is coming temporarily to
the United States to perform services as a registered
nurse, who meets the qualifications described in
section 212(m)(1), and with respect to whom the
Secretary of Labor determines and certifies to the
Attorney General that an unexpired attestation is on
file and in effect under section 212(m)(2) for each
facility (which facility shall include the petitioner
and each worksite, other than a private household
worksite, if the worksite is not the alien's employer
or controlled by the employer) for which the alien will
perform the services, or] (b) subject to section
212(j)(2), who is coming temporarily to the United
States to perform services (other than services
described in subclause (a) during the period in which
such subclause applies and other than services
described in subclause (ii)(a) or in subparagraph (O)
or (P)) in a specialty occupation described in section
214(i)(1) or as a fashion model, who meets the
requirements for the occupation specified in section
214(i)(2) or, in the case of a fashion model, is of
distinguished merit and ability, and with respect to
whom the Secretary of Labor determines and certifies to
the Attorney General that the intending employer has
filed with the Secretary an application under section
212(n)(1)[; or], or (c) who is coming temporarily to
the United States to perform services as a registered
nurse, who meets the qualifications described in
section 212(m)(1), and with respect to whom the
Secretary of Labor determines and certifies to the
Attorney General that an unexpired attestation is on
file and in effect under section 212(m)(2) for the
facility (as defined in section 212(m)(6)) for which
the alien will perform the services; or (ii)(a) having
a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to
the United States to perform agricultural labor or
services, as defined by the Secretary of Labor in
regulations and including agricultural labor defined in
section 3121(g) of the Internal Revenue Code of 1954
and agriculture as defined in section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)), of a
temporary or seasonal nature, or (b) having a residence
in a foreign country which he has no intention of
abandoning who is coming temporarily to the United
States to perform other temporary service or labor if
unemployed persons capable of performing such service
or labor cannot be found in this country, but this
clause shall not apply to graduates of medical schools
coming to the United States to perform services as
members of the medical profession; or (iii) having a
residence in a foreign country which he has no
intention of abandoning who is coming temporarily to
the United States as a trainee, other than to receive
graduate medical education or training, in a training
program that is not designed primarily to provide
productive employment; and the alien spouse and minor
children of any such alien specified in this paragraph
if accompanying him or following to join him;
* * * * * * *
Title II--Immigration
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, aliens
who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to
the United States:
(1) * * *
* * * * * * *
(5) Labor certification and qualifications for
certain immigrants.--
(A) * * *
* * * * * * *
(C) Uncertified foreign health-care
workers.--[Any alien who seeks] Subject to
subsection (r), any alien who seeks to enter
the United States for the purpose of performing
labor as a health-care worker, other than a
physician, is inadmissible unless the alien
presents to the consular officer, or, in the
case of an adjustment of status, the Attorney
General, a certificate from the Commission on
Graduates of Foreign Nursing Schools, or a
certificate from an equivalent independent
credentialing organization approved by the
Attorney General in consultation with the
Secretary of Health and Human Services,
verifying that--
(i) * * *
* * * * * * *
[(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(a), with respect to an alien who is coming to
the United States to perform nursing services for a facility,
are that the alien--
[(A) has obtained a full and unrestricted license
to practice professional nursing in the country where
the alien obtained nursing education or has received
nursing education in the United States or Canada;
[(B) has passed an appropriate examination
(recognized in regulations promulgated in consultation
with the Secretary of Health and Human Services) or has
a full and unrestricted license under State law to
practice professional nursing in the State of intended
employment; and
[(C) is fully qualified and eligible under the laws
(including such temporary or interim licensing
requirements which authorize the nurse to be employed)
governing the place of intended employment to engage in
the practice of professional nursing as a registered
nurse immediately upon admission to the United States
and is authorized under such laws to be employed by the
facility.
[(2)(A) The attestation referred to in section
101(a)(15)(H)(i)(a) is an attestation as to the following:
[(i) There would be a substantial disruption
through no fault of the facility in the delivery of
health care services of the facility without the
services of such an alien or aliens.
[(ii) The employment of the alien will not
adversely affect the wages and working conditions of
registered nurses similarly employed.
[(iii) The alien employed by the facility will be
paid the wage rate for registered nurses similarly
employed by the facility.
[(iv) Either (I) the facility has taken and is
taking timely and significant steps designed to recruit
and retain sufficient registered nurses who are United
States citizens or immigrants who are authorized to
perform nursing services, in order to remove as quickly
as reasonably possible the dependence of the facility
on nonimmigrant registered nurses, or (II) the facility
is subject to an approved State plan for the
recruitment and retention of nurses (described in
paragraph (3)).
[(v) There is not a strike or lockout in the course
of a labor dispute, and the employment of such an alien
is not intended or designed to influence an election
for a bargaining representative for registered nurses
of the facility.
[(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(a),
notice of the filing has been provided by the facility
to the bargaining representative of the registered
nurses at the facility or, where there is no such
bargaining representative, notice of the filing has
been provided to registered nurses employed at the
facility through posting in conspicuous locations.
A facility is considered not to meet clause (i) (relating to an
attestation of a substantial disruption in delivery of health
care services) if the facility, within the previous year, laid
off registered nurses. Notwithstanding the previous sentence, a
facility that lays off a registered nurse other than a staff
nurse still meets clause (i) if, in its attestation under this
subparagraph, the facility has attested that it will not
replace the nurse with a nonimmigrant described in section
101(a)(15)(H)(i)(a) (either through promotion or otherwise) for
a period of 1 year after the date of the lay off. Nothing in
clause (iv) shall be construed as requiring a facility to have
taken significant steps described in such clause before the
date of the enactment of this subsection. In the case of an
alien for whom an employer has filed an attestation under this
subparagraph and who is performing services at a worksite other
than the employer's or other than a worksite controlled by the
employer, the Secretary may waive such requirements for the
attestation for the worksite as may be appropriate in order to
avoid duplicative attestations, in cases of temporary,
emergency circumstances, with respect to information not within
the knowledge of the attestor, or for other good cause.
[(B) For purposes of subparagraph (A)(iv)(I), each of the
following shall be considered a significant step reasonably
designed to recruit and retain registered nurses:
[(i) Operating a training program for registered
nurses at the facility or financing (or providing
participation in) a training program for registered
nurses elsewhere.
[(ii) Providing career development programs and
other methods of facilitating health care workers to
become registered nurses.
[(iii) Paying registered nurses wages at a rate
higher than currently being paid to registered nurses
similarly employed in the geographic area.
[(iv) Providing adequate support services to free
registered nurses from administrative and other
nonnursing duties.
[(v) Providing reasonable opportunities for
meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be
considered to be an exclusive list of the significant steps
that may be taken to meet the conditions of subparagraph
(A)(iv)(I). Nothing herein shall require a facility to take
more than one step, if the facility can demonstrate that taking
a second step is not reasonable.
[(C) Subject to subparagraph (E), an attestation under
subparagraph (A) shall--
[(i) expire at the end of the 1-year period
beginning on the date of its filing with the Secretary
of Labor, and
[(ii) apply to petitions filed during such 1-year
period if the facility states in each such petition
that it continues to comply with the conditions in the
attestation.
[(D) A facility may meet the requirements under this
paragraph with respect to more than one registered nurse in a
single petition.
[(E)(i) The Secretary of Labor shall compile and make
available for public examination in a timely manner in
Washington, D.C., a list identifying facilities which have
filed petitions for nonimmigrants under section
101(a)(15)(H)(i)(a) and, for each such facility, a copy of the
facility's attestation under subparagraph (A) (and accompanying
documentation) and each such petition filed by the facility.
[(ii) The Secretary of Labor shall establish a process
for the receipt, investigation, and disposition of complaints
respecting a facility's failure to meet conditions attested to
or a facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives,
associations deemed appropriate by the Secretary, and other
aggrieved parties as determined under regulations of the
Secretary). The Secretary shall conduct an investigation under
this clause if there is reasonable cause to believe that a
facility fails to meet conditions attested to.
[(iii) Under such process, the Secretary shall provide,
within 180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a
finding described in clause (iv). If the Secretary determines
that such a basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint within 60 days of
the date of the determination.
[(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which an
attestation is made) has failed to meet a condition attested to
or that there was a misrepresentation of material fact in the
attestation, the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in
an amount not to exceed $1,000 per violation) as the Secretary
determines to be appropriate. Upon receipt of such notice, the
Attorney General shall not approve petitions filed with respect
to a facility during a period of at least 1 year for nurses to
be employed by the facility.
[(v) In addition to the sanctions provided under clause
(iv), if the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a facility has violated the
condition attested to under subparagraph (A)(iii) (relating to
payment of registered nurses at the prevailing wage rate), the
Secretary shall order the facility to provide for payment of
such amounts of back pay as may be required to comply with such
condition.
[(3) The Secretary of Labor shall provide for a process
under which a State may submit to the Secretary a plan for the
recruitment and retention of United States citizens and
immigrants who are authorized to perform nursing services as
registered nurses in facilities in the State. Such a plan may
include counseling and educating health workers and other
individuals concerning the employment opportunities available
to registered nurses. The Secretary shall provide, on an annual
basis in consultation with the Secretary of Health and Human
Services, for the approval or disapproval of such a plan, for
purposes of paragraph (2)(A)(iv)(II). Such a plan may not be
considered to be approved with respect to the facility unless
the plan provides for the taking of significant steps described
in paragraph (2)(A)(iv)(I) with respect to registered nurses in
the facility.
[(4) The period of admission of an alien under section
101(a)(15)(H)(i)(a) shall be for an initial period of not to
exceed 3 years, subject to an extension for a period or
periods, not to exceed a total period of admission of 5 years
(or a total period of admission of 6 years in the case of
extraordinary circumstances, as determined by the Attorney
General).
[(5) For purposes of this subsection and section
101(a)(15)(H)(i)(a), the term ``facility'' includes an employer
who employs registered nurses in a home setting.]
(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), with respect to an alien who is coming to
the United States to perform nursing services for a facility,
are that the alien--
(A) has obtained a full and unrestricted license to
practice professional nursing in the country where the
alien obtained nursing education or has received
nursing education in the United States;
(B) has passed an appropriate examination
(recognized in regulations promulgated in consultation
with the Secretary of Health and Human Services) or has
a full and unrestricted license under State law to
practice professional nursing in the State of intended
employment; and
(C) is fully qualified and eligible under the laws
(including such temporary or interim licensing
requirements which authorize the nurse to be employed)
governing the place of intended employment to engage in
the practice of professional nursing as a registered
nurse immediately upon admission to the United States
and is authorized under such laws to be employed by the
facility.
(2)(A) The attestation referred to in section
101(a)(15)(H)(i)(c), with respect to a facility for which an
alien will perform services, is an attestation as to the
following:
(i) The facility meets all the requirements of
paragraph (6).
(ii) The employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed.
(iii) The alien employed by the facility will be
paid the wage rate for registered nurses similarly
employed by the facility.
(iv) The facility has taken and is taking timely
and significant steps designed to recruit and retain
sufficient registered nurses who are United States
citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on
nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course
of a labor dispute, the facility did not lay off and
will not lay off a registered nurse employed by the
facility within the period beginning 90 days before and
ending 90 days after the date of filing of any visa
petition, and the employment of such an alien is not
intended or designed to influence an election for a
bargaining representative for registered nurses of the
facility.
(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(c),
notice of the filing has been provided by the facility
to the bargaining representative of the registered
nurses at the facility or, where there is no such
bargaining representative, notice of the filing has
been provided to the registered nurses employed at the
facility through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a
number of aliens issued visas or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(c)
that exceeds 33 percent of the total number of
registered nurses employed by the facility.
(viii) The facility will not, with respect to any
alien issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(c)--
(I) authorize the alien to perform nursing
services at any worksite other than a worksite
controlled by the facility; or
(II) transfer the place of employment of
the alien from one worksite to another.
Nothing in clause (iv) shall be construed as requiring
a facility to have taken significant steps described in
such clause before the date of the enactment of the
Nursing Relief for Disadvantaged Areas Act of 1999. A
copy of the attestation shall be provided, within 30
days of the date of filing, to registered nurses
employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the
following shall be considered a significant step reasonably
designed to recruit and retain registered nurses:
(i) Operating a training program for registered
nurses at the facility or financing (or providing
participation in) a training program for registered
nurses elsewhere.
(ii) Providing career development programs and
other methods of facilitating health care workers to
become registered nurses.
(iii) Paying registered nurses wages at a rate
higher than currently being paid to registered nurses
similarly employed in the geographic area.
(iv) Providing reasonable opportunities for
meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be
considered to be an exclusive list of the significant steps
that may be taken to meet the conditions of subparagraph
(A)(iv). Nothing in this subparagraph shall require a facility
to take more than one step if the facility can demonstrate that
taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under
subparagraph (A)--
(i) shall expire on the date that is the later of--
(I) the end of the one-year period
beginning on the date of its filing with the
Secretary of Labor; or
(II) the end of the period of admission
under section 101(a)(15)(H)(i)(c) of the last
alien with respect to whose admission it was
applied (in accordance with clause (ii)); and
(ii) shall apply to petitions filed during the one-
year period beginning on the date of its filing with
the Secretary of Labor if the facility states in each
such petition that it continues to comply with the
conditions in the attestation.
(D) A facility may meet the requirements under this
paragraph with respect to more than one registered nurse in a
single petition.
(E)(i) The Secretary of Labor shall compile and make
available for public examination in a timely manner in
Washington, D.C., a list identifying facilities which have
filed petitions for nonimmigrants under section
101(a)(15)(H)(i)(c) and, for each such facility, a copy of the
facility's attestation under subparagraph (A) (and accompanying
documentation) and each such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process,
including reasonable time limits, for the receipt,
investigation, and disposition of complaints respecting a
facility's failure to meet conditions attested to or a
facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives,
associations deemed appropriate by the Secretary, and other
aggrieved parties as determined under regulations of the
Secretary). The Secretary shall conduct an investigation under
this clause if there is reasonable cause to believe that a
facility fails to meet conditions attested to. Subject to the
time limits established under this clause, this subparagraph
shall apply regardless of whether an attestation is expired or
unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide,
within 180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a
finding described in clause (iv). If the Secretary determines
that such a basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint within 60 days of
the date of the determination.
(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which an
attestation is made) has failed to meet a condition attested to
or that there was a misrepresentation of material fact in the
attestation, the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in
an amount not to exceed $1,000 per nurse per violation, with
the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such
notice, the Attorney General shall not approve petitions filed
with respect to a facility during a period of at least one year
for nurses to be employed by the facility.
(v) In addition to the sanctions provided for under clause
(iv), if the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a facility has violated the
condition attested to under subparagraph (A)(iii) (relating to
payment of registered nurses at the prevailing wage rate), the
Secretary shall order the facility to provide for payment of
such amounts of back pay as may be required to comply with such
condition.
(F)(i) The Secretary of Labor shall impose on a facility
filing an attestation under subparagraph (A) a filing fee, in
an amount prescribed by the Secretary based on the costs of
carrying out the Secretary's duties under this subsection, but
not exceeding $250.
(ii) Fees collected under this subparagraph shall be
deposited in a fund established for this purpose in the
Treasury of the United States.
(iii) The collected fees in the fund shall be available to
the Secretary of Labor, to the extent and in such amounts as
may be provided in appropriations Acts, to cover the costs
described in clause (i), in addition to any other funds that
are available to the Secretary to cover such costs.
(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant
to petitions granted under section 101(a)(15)(H)(i)(c) in each
fiscal year shall not exceed 500. The number of such visas
issued for employment in each State in each fiscal year shall
not exceed the following:
(A) For States with populations of less than
9,000,000, based upon the 1990 decennial census of
population, 25 visas.
(B) For States with populations of 9,000,000 or
more, based upon the 1990 decennial census of
population, 50 visas.
(C) If the total number of visas available under
this paragraph for a fiscal year quarter exceeds the
number of qualified nonimmigrants who may be issued
such visas during those quarters, the visas made
available under this paragraph shall be issued without
regard to the numerical limitation under subparagraph
(A) or (B) of this paragraph during the last fiscal
year quarter.
(5) A facility that has filed a petition under section
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing
services for the facility--
(A) shall provide the nonimmigrant a wage rate and
working conditions commensurate with those of nurses
similarly employed by the facility;
(B) shall require the nonimmigrant to work hours
commensurate with those of nurses similarly employed by
the facility; and
(C) shall not interfere with the right of the
nonimmigrant to join or organize a union.
(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), the term ``facility'' means a subsection
(d) hospital (as defined in section 1886(d)(1)(B) of the Social
Security Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the
following requirements:
(A) As of March 31, 1997, the hospital was located
in a health professional shortage area (as defined in
section 332 of the Public Health Service Act (42 U.S.C.
254e)).
(B) Based on its settled cost report filed under
title XVIII of the Social Security Act for its cost
reporting period beginning during fiscal year 1994--
(i) the hospital has not less than 190
licensed acute care beds;
(ii) the number of the hospital's inpatient
days for such period which were made up of
patients who (for such days) were entitled to
benefits under part A of such title is not less
than 35 percent of the total number of such
hospital's acute care inpatient days for such
period; and
(iii) the number of the hospital's
inpatient days for such period which were made
up of patients who (for such days) were
eligible for medical assistance under a State
plan approved under title XIX of the Social
Security Act, is not less than 28 percent of
the total number of such hospital's acute care
inpatient days for such period.
(7) For purposes of paragraph (2)(A)(v), the term
``lay off'', with respect to a worker--
(A) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract; but
(B) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
Nothing in this paragraph is intended to limit an
employee's or an employer's rights under a collective
bargaining agreement or other employment contract.
* * * * * * *
(r) Subsection (a)(5)(C) shall not apply to an alien who
seeks to enter the United States for the purpose of performing
labor as a nurse who presents to the consular officer (or in
the case of an adjustment of status, the Attorney General) a
certified statement from the Commission on Graduates of Foreign
Nursing Schools (or an equivalent independent credentialing
organization approved for the certification of nurses under
subsection (a)(5)(C) by the Attorney General in consultation
with the Secretary of Health and Human Services) that--
(1) the alien has a valid and unrestricted license
as a nurse in a State where the alien intends to be
employed and such State verifies that the foreign
licenses of alien nurses are authentic and
unencumbered;
(2) the alien has passed the National Council
Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program--
(A) in which the language of instruction
was English;
(B) located in a country--
(i) designated by such commission
not later than 30 days after the date
of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999,
based on such commission's assessment
that the quality of nursing education
in that country, and the English
language proficiency of those who
complete such programs in that country,
justify the country's designation; or
(ii) designated on the basis of
such an assessment by unanimous
agreement of such commission and any
equivalent credentialing organizations
which have been approved under
subsection (a)(5)(C) for the
certification of nurses under this
subsection; and
(C)(i) which was in operation on or before
the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999; or
(ii) has been approved by unanimous
agreement of such commission and any equivalent
credentialing organizations which have been
approved under subsection (a)(5)(C) for the
certification of nurses under this subsection.
* * * * * * *