In the first break in an almost three-year battle, the Immigration and Naturalization Service implemented a temporary guideline Dec. 14 allowing immigrant nurses and occupational therapists to begin applying for green cards. The INS posted a memo on its World Wide Web site that said labor shortages had prompted the change.
The battle began in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act. The legislation, which took effect in January 1997, is massive, containing more than 180 sections.
While some sections make it easier for healthcare workers to stay in the U.S. temporarily without scrutiny, Section 343 makes it far more difficult for workers to seek permanent residency in the U.S. and applies to seven groups of professionals: medical technicians, medical technologists, nurses, occupational therapists, physical therapists, physician assistants and speech pathologists.
To obtain a green card, healthcare workers must show proficiency in English and their work skills. But so far the only guidelines for certifying professional competency are a guideline in the law stating that the appropriate accrediting bodies for nurses and occupational therapists are the Commission on Graduates of Foreign Nursing Schools and the National Board for Certification in Occupational Therapy.
However, accrediting bodies for the other professions were not specified. And without INS guidelines, green cards cannot be issued. The December guideline said only that nurses and occupational therapists could submit green card applications.
Ling Shan Ye has experienced immigration problems firsthand. She came to the U.S. from China seven years ago, earned her bachelor's degree in nursing at Wichita (Kan.) State University and began a career as a pediatric nurse at Queen of Angels-Hollywood Presbyterian Medical Center in Los Angeles.
Certifying Ling's proficiency sounds as if it would be simple, given her degree from an accredited U.S. university and her California nursing license. But even with the December guideline, her green card application is being held "in abeyance" until the INS publishes guidelines for certifying competence.
Ling, 36, who also trained as a nurse in China, has been impressed by the U.S. healthcare system. Against conventional wisdom, she views healthcare as far more holistic in the U.S. than in China: "(Providers) take the entire patient into account when they give care," she says.
However, Ling considers the U.S. immigration system to be oblique and fragmented. Nearly three years after Queen of Angels agreed to sponsor her green card, Ling has no idea how much longer she will be allowed to stay in the U.S.
Ling's limbo is similar to that of the protagonist in a Franz Kafka story, with her only misdeed being the submission of her green card application as Congress approved unclear immigration reforms.
"It seems like a scandal," says Carl Shusterman, a Los Angeles immigration lawyer who represents Ling and other healthcare workers. "I deal with hospitals in 35 states, and they could not get by without these people, and yet they are being treated in a terrible way."
Shusterman points out that the federal law is redundant, given that all the states already use detailed investigation and licensing processes. "What is the need for having a federal (law) for what's already being done?" he asks.
The situation caused by the 1996 law brings clients to Shusterman, but those clients come to him in a state of emotional distress. Although healthcare workers have not been deported during the application process, they are stuck in their current jobs, since a change would require them to begin the application process anew, according to observers.
The process is already a grind, usually taking most of a six-year deadline. It can be even more wrenching for healthcare workers with teen-age children. Typically when children turn 21, they cannot be covered by a parent's green card application, and in some cases they even face deportation. The overseas spouses of immigrants to the U.S. can't be admitted to this country until the immigrants have obtained green cards.
Problems are relative. "The way the INS has set this up has been a real hardship on families," says Steven Clark, an immigration lawyer in Cambridge, Mass., and president-elect of the American Immigrant Lawyers Association.
Some organizations have taken legal action against the INS. The Commission on Graduates of Foreign Nursing Schools, which will earn $325 per applicant to certify nurses, filed suit in federal court last May to compel the INS to publish guidelines.
"This failure to act, on the part of the INS, has resulted in serious and irreparable harm for hundreds, possibly even thousands, of healthcare workers awaiting final adjudication of their applications," the lawsuit states. The commission was joined by the Washington-based American Immigration Law Foundation.
Richard Rulon, an attorney for the plaintiffs, says he is negotiating with the INS and is optimistic about a settlement this year.
Why the INS has made so little progress remains a mystery. An agency spokeswoman did not return phone calls. But published reports suggest the agency has wanted to restrict the flow of immigrants since the passage of the 1996 law. The Wall Street Journal reported in February 1998 that the INS was freezing the application process for healthcare workers to discourage immigration.
But Rulon says he doesn't believe the INS is acting out of a deliberate policy. He suggests the scope of the 1996 law has overwhelmed the agency. "They don't know how to prioritize all the implementations that are required of them," he says.
Meanwhile, immigrant healthcare workers can't take advantage of one of the primary opportunities in the U.S.-making more money. Because they don't want to reapply for green cards, immigrants are precluded from filling in for spot nursing shortages that are forcing providers to ratchet up salaries and offer signing bonuses (Dec. 14, 1998, p. 34).
The situation may cause hospitals to bypass a sizable pool of skilled immigrant healthcare workers, according to hospital officials and lobbyists.
Green card required. "I don't know of the exact situation in the hospitals, but there are some private nursing situations where they're very reluctant to place people who don't have green cards," says Linda Quick, president of the South Florida Hospital and Healthcare Association, whose members are experiencing a nursing shortage.
Some providers in California had made a cottage industry of training and certifying nurses for the U.S., but they no longer conduct extensive recruitment tours in the Philippines, according to Claudia Rosenfeld, vice president of the Healthcare Association of Southern California, a lobbying group for Los Angeles-area hospitals. Rosenfeld says she believes the incremental tightening of the application processes for visas and green cards over the past decade may have contributed to the problem.
"Yet we'll see a lot of nurses continue to come over from Canada until that country gets sick of donating its healthcare workers," says Rosenfeld, adding that the North American Free Trade Agreement makes it much easier for healthcare workers from Canada to immigrate temporarily to the U.S. than for workers from other countries to do so.
The INS' temporary guidelines may give little comfort to would-be applicants. That's because the agency accepts only 65,000 green card applications from all professions that require a bachelor's degree or higher during its fiscal year, which ends Sept. 30. The INS typically hits that target months before the Sept. 30 deadline and refuses more applications until the next fiscal year. Last year the agency cut off applications May 11.
Although exact figures were unavailable from the INS, Shusterman estimates that more than 20,000 nurses and occupational therapists rushed to submit applications in December-competing with all the other professionals who began submitting theirs Oct. 1. Ling is among those waiting to see what happens to their applications.
Ironically, Ling's patients may be benefiting the most from the uncertainty. Ling says she copes with the problem by putting more energy into her work. But another irony-that she experienced less bureaucracy in her Communist homeland-is not lost on her.
"This whole thing is ridiculous, and everyone says there is nothing I can do about it," she says. "At least in China you knew where you could complain."