RE: Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System (67 Federal Register 30466) May 6, 2002

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Monday, July 15th 2002

Emily Stover DeRocco
Assistant Secretary for Employment and Training
United States Department of Labor
200 Constitution Avenue, NW, Room C-4318
Washington, DC 20210
Attention: Dale Ziegler, Chief, Division of Foreign Labor Certifications

Dear Ms. DeRocco:

On behalf of our nearly 5,000 member hospitals, health systems, networks and other providers of care, the American Hospital Association (AHA) welcomes the opportunity to comment on the Department of Labor’s (DOL) proposed rule to amend the regulations governing the filing and processing of labor certification applications for the permanent employment of aliens in the United States, as it pertains to professional nurses.

The DOL has determined that there are not sufficient United States workers who are able, willing, qualified, and available as professional nurses and that the wages and working conditions of U.S. professional workers similarly employed will not be adversely affected by the employment of aliens as professional nurses. As such, employers may apply for a Schedule A labor certification for professional nurses. The proposed promulgation of current Schedule A procedures, as presented in DOL’s proposed rule, will, inadvertently, decrease the number of qualified alien professional nurses permanently working in the U.S. at a time when health care is at a critical juncture.

While the nation’s health care workforce is experiencing a shortage of many types of personnel, none is more critical than the nurses who provide bedside care. The current nursing shortage differs from those of previous years, which were largely a result of fluctuations in the economy. Now, current supplies of nurses are shrinking for reasons that will be with us for the long term: an aging workforce (the average age of registered nurses is 45); a dearth of younger nurses to replace those who retire (enrollment in basic registered nursing programs has declined by over 50,000 since 1993); and an aging nursing school faculty workforce (the average age of nursing school professors is 52). Coupled with these factors is the approaching retirement of 78 million baby boomers, and their increasing demand for health care resources.

A September 2001 study commissioned by the AHA’s Commission on Workforce for Hospitals and Health Systems reported the following bleak facts:

  • over one in seven hospitals report a severe shortage of nurses with more than 20% of registered nurse positions vacant;
  • hospitals have average vacancy rates for registered nurses of 13%;
  • registered nurse vacancy rates have increased since 1999 for 60% of hospitals.

The most important fact to recognize is that without nurses, hospitals cannot fulfill their mission to serve patients. The nursing shortage has already affected hospital operations and patient care. Some of the unfortunate measures that hospitals have had to take to deal with the shortage include diverting patients from hospital’s emergency rooms, discontinuing programs and reducing service hours.

While permanent employment of alien professional nurses is not the answer to our nation’s nursing shortage, it is part of a multi-tiered and collaborative approach required from all stakeholders, including hospitals, academia, professional organizations, and our local, state and federal governments, including the DOL. Incorporating the following two elements into DOL’s proposed rule will assist in granting more Schedule A labor certifications to qualified professional nurses, in both the short and long term.

The National Council Licensure Examination (NCLEX), administered by the National Council of State Boards of Nursing (NCSBN), is required by every state in order for any nurse, including alien professional nurses, to obtain a state-administered nursing license. Currently, NCLEX examinations are only routinely administered in the United States and to some extent, in Guam, Saipan, the Virgin Islands, Puerto Rico and American Samoa. The NCSBN has indicated that starting in 2003, NCLEX examinations will be offered in more foreign countries. This will result in more foreign nurses taking the NCLEX examination, instead of the Commission on Graduates of Foreign Nursing Schools Examination (CGFNS) – a test that is currently offered worldwide. In fact, when acceptable, foreign nurses would prefer to take the NCLEX examination because it is the only examinationrequired by state licensing boards, while the CGFNS is a test that aims to predict a foreign nurse’s ability to pass the NCLEX examination - passage does not provide for a permanent nursing license.

The DOL’s proposed rule would require that employers seeking an Application for Alien Employment Certification for a professional nurse must file, as part of their application, documentation that the alien has passed the CGFNS; or that the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

What DOL’s rule does not address is when an alien professional nurse haspassed the NCLEX examination but does not have a permanent nursing license from the state of intended employment. In a vast majority of states, a social security number is required, without exception, in order to obtain a permanent license. Unfortunately, an alien professional nurse cannot obtain a social security number without first obtaining an immigrant visa or a work permit, which requires the Immigration and Naturalization Service (INS) to first approve the immigrant visa petition under Schedule A, Group 1.

In lieu of a permanent license, an alien professional nurse who has passed the NCLEX examination receives a letter from the state licensing authority indicating that upon presentation of a social security number, he/she will be issued a permanent state license.

There are just a few states that recognize the dilemma of obtaining a social security number and offer an alternative for obtaining a permanent nursing license. For example, Alaska’s Division of Occupational Licensing allows an alien professional nurse, unable to obtain a social security number, to request an exception from the social security number requirement (see Attachment 1). This allows an alien professional nurse who has passed the NCLEX examination to obtain a permanent nursing license from the state of Alaska without a social security and thus, qualify under DOL’s proposed rule for a Schedule A labor certification.

Unfortunately, there are very other few states that have procedures or laws in place that allow for such an exception. As such, the DOL should add to the proposed rule that a letter from a state licensing authority, indicating passage of the NCLEX examination, is an alternative to passage of the CGFNS examination and the possession of a permanent license for purposes of approving a Schedule A labor certification. This will be especially beneficial in the long term, as the NCLEX examination is offered in more foreign countries.

Another situation not addressed by DOL’s proposed rule is when an alien professional nurse has achieved licensure in one state, through reciprocity, and then is petitioned by an employer in another state. In this situation, the alien nurse would not have to pass an examination in the second state. The alien nurse would initially obtain a “temporary license” in the second state and then, when paperwork is completed (“endorsement”), receives a permanent license. The status of the temporary license in the second state is almost the equivalent of a permanent license and should not be confused with a regular temporary license where passage of the NCLEX examination is required for a permanent license. In the case of a petitioned alien nurse, all that is required for a permanent license is completion of paperwork.

The DOL’s proposed rule should also be amended to provide that the possession of such a “temporary license”, where no further examination is required for permanent licensure, is an acceptable alternative to passage of the CGFNS examination and the possession of a permanent license for purposes of approving a Schedule A labor certification.

It is important to note that the INS has long recognized and accepted the passage of the NCLEX examination and the petitioned alien nurse’s “temporary license” as having the functional equivalent of a permanent license. Recently, however, there have been questions about whether this is acceptable. It is therefore critical that DOL’s final rule explicitly include these two elements.

The AHA appreciates the opportunity to submit these comments on DOL’s proposed rule. If you have any questions about these comments, please feel free to contact either me, Carla Luggiero, senior associate director for federal relations, at (202) 626-2333, or, Robyn Cooke, director of state issues forum, at (202) 626-2672.


Rick Pollack
Executive Vice President


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