EB-3 Green Cards for Foreign Nurses

The United States needs more nurses, and some American employers are looking abroad for them. It’s not an easy process but here’s information on how to get started. If you’ve had an employer sponsor and abandon you in the past (usually because of the recession) see below. Always remember that there may be differences in these steps based on your situation.

By far the most common way to immigrate to the U.S. is to find an employer to sponsor you for an I-140 Immigrant Petition for Alien Worker in the EB-3 visa category.  This allows you, your spouse and minor children to get green cards to live, work and study in the U.S. as Legal Permanent Residents (LPR). “EB-3” stands for Employment-Based Immigration: Third Preference. Nurses are normally classified as “skilled or professional workers” within this category. In this process, the employer is the “petitioner.” The nurse is the “beneficiary” or “principal applicant.”

For most employment visas, the employer has to go through a lengthy process to show they cannot find a U.S. worker for the position who is able, willing, qualified and available.  But for EB-3 nurses, the government has determined there is a shortage of professional nurses in the U.S. (it’s a so-called “Schedule A Occupation) so the process for the initial I-140 petition is faster than for other types of workers. The petitioner does have to take several steps before filing the petition: request a prevailing wage determination (PWD) with the Department of Labor to show the employer is not underpaying the nurse, then the job must be posted for 15 days at the employer’s work location, and the employer must then wait 30 days to file the I-140 petition with USCIS. These steps usually take 3-4 months. Normally it then takes several more months for the petition to be approved if all the paperwork is in order. The employer can pay an extra fee for “premium processing” to expedite this step.

But that doesn’t mean you’ll get a visa quickly after that. There is a numerical quota for EB-3 category visas and a backlog of several years for those visas for a few countries, including the Philippines, India and China as of July 2016. Your country is determined by your country of birth. But if your spouse was born in a different country, you may qualify in that country, which could be much faster. Keep that in mind.

The date your employer files the petition is called the priority date (PD) and that all-important date determines your visa’s availability. Always remember your priority date and keep all your documents, especially notices from the government. The dates of visa availability go forward and sometimes backwards, called retrogression, and are unpredictable. I won’t explain it in detail here but you can find out more at this post. But before you get to all of that, you must prepare yourself to be hired by a prospective employer, which is often an agency that will place you in a hospital or other facility.

Here’s a summary of the process:

  1. Complete the required education and licensing requirements in your country including graduating from an accredited Registered Nursing (RN) program, be licensed in your country as an RN, and practice as an RN for at least two years, preferably more. Working in a specialty area is helpful, such as critical care, OR, ER, and labor and delivery.
  2. Pass an English language test, preferably the Test of English as a Foreign Language (TOEFL), or the International English Language Testing System (IELTS). Some nurses are exempt from the language exam, e.g. if you went to nursing school in the UK, Republic of Ireland, Australia, New Zealand, or Canada apart from Quebec, and your nursing school courses and textbooks were in English.
  3. Apply for a license in the state in which you intend to work. In the U.S. each of the 50 states licenses its nurses; there is no national nursing license. You will often have a problem getting a state license because you will not get a Social Security number until you get to the U.S. However, the state licensing board should issue you a letter stating that, except for your lack of a Social Security number, you would be eligible for a license. That will suffice for immigration purposes to get the visa. Then you can get the SS number and license once you are in the U.S.
  4. Pass the NCLEX-RN or National Council Licensing Examination – Registered Nurse. If the NCLEX-RN is not offered in your country (it’s only offered in about 10 countries outside the U.S.), you might find an employer or agency to accept the CGFNS Qualifying Exam instead in order to start the visa process, although you will still need to pass the NCLEX-RN once you get to the U.S. The CGFNS exam is offered in many more countries.
  5. Find a U.S. employer or recruiting agency to contract with. Be careful in choosing as this is an important relationship and there will be financial penalties if you want to terminate the contract before its conclusion. Ask your nursing friends for recommendations or get names of agencies/employers from your government’s employment department. Filipinos can search for legitimate nursing positions at the Philippines Overseas Employment Administration,  The government has screened those listed. Be very careful not to pay money to a scam or fake agency or employer.
  6. The employer or agency/employer then files the I-140 petition. Immigrating through an I-140 petition is a three-part process.

First, the employer files the petition with U.S. Citizenship and Immigration Services who will decide whether the employer and employee have met all the requirements for this employment-based visa to be approved.

Next, If the petition is approved, the papers go to the National Visa Center (NVC) which will hold the papers until a visa is close to being available and will then seek your documents (e.g. birth, marriage and police certificates) to prepare the file for the embassy. The NVC may hold the file for years because of the visa quota and backlogs explained above. Be sure to let the NVC know of any address, email, phone or family changes while you wait.

Finally, the papers go to the embassy or consulate in the country where you are living where you will get your medical exams and interview. You can request the interview and processing take place in a third country if you are working outside your home country. If successful, you will soon receive your visa and can travel to the U.S.

7. As your priority date approaches, obtain a VisaScreen certificate, valid for five years. This verifies and certifies your education, training, licensing, and English proficiency. The VisaScreen is valid for 5 years so you will need to re-certify if it expires before you immigrate.
8. There will be additional requirements once you get to the U.S. but we’ll leave it at that.

What if the employer petitions you when you are single and then you marry and/or have children before your interview?  In the EB-3 visa category, you’re allowed to include your spouse and children in the petition, even if these relationships are created after the original petition is filed. Often visa applicants are worried they will no longer be eligible if tell the government they have a spouse or child. This is not so in the employment categories. [It’s only true in one family-based category, F2B, when a green card holder sponsors an unmarried child or daughter]. If you don’t include your spouse or child, your only option later is to petition them when you get to the U.S. and then there’s going to be a long delay in getting them visas. To add a spouse or child, send the birth certificates to the National Visa Center and ask the NVC to add them. You will need to provide all required documents, fees, and medical exams for them before the interview.

What if a previous employer petitioned you in the 2000s, but then abandoned the petition after the 2008 recession (or at any other time)? You can normally use the earlier priority date if you find a new employer to petition you. This is called recapturing the priority date. You’ll need your prior I-140 approval notice. This can be included with the new I-140 petition and the employer can request the earlier priority date be used. This means, for example, if your previous employer filed a petition for you in 2007 and then abandoned it, you can find a new employer in 2016 who can use the 2007 date. In this case there probably will not be any wait for the visa to be available once the new I-140 is approved. Earlier priority dates are very attractive to potential new employers so be sure to find your documents and let them know. The employer will still have to go through the entire I-140 process again, including the Prevailing Wage Determination, etc. and paying fees but it’s still a lot better than waiting in line for years for a visa.

Are there any easier ways to work as a nurse in the U.S.? By now you’ll realize this is a long, expensive, complicated process; there are fees and waits at every stage.  Unfortunately, there’s not an alternative if you’re looking for a green card and permanent residency. The H-1B visa is a non-immigrant or temporary (not green card) U.S. employment visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. It’s very difficult for nurses to qualify for an H-1B because nursing generally does not require a bachelors degree. If the particular position does require a bachelors degree or equivalent, it’s possible an H-1B is appropriate. Again the employer has to petition for you and you have to be a highly qualified nurse for an employer to consider spending the time and money involved in the H-1B process.

There is one last option available only to nurses who are Canadian or Mexican citizens (no other citizens qualify): the TN NAFTA, which allows them to work in the United States. You still need to have an employer willing to employ you but there is no petition process to go through. A Canadian citizen can go to the U.S. border, show the required documents and request entry. Mexican citizens need to apply for a TN visa at an embassy or consulate in Mexico in advance. Spouses and children can also request entry but are not allowed to work.

Do you need your own immigration lawyer to represent or assist you in this process? Maybe yes and maybe no. In most cases one immigration attorney files the petition and represents both the employer and the employee. This can create conflicts. For example, if you have a criminal conviction in a foreign country that could cause problems in obtaining the visa, you might be uncomfortable sharing all the information with your employer or the lawyer representing the employer.

In one case, our client was at first represented, as usual, by the employer’s attorney. She had waited years for her visa to be available. Her papers were at the National Visa Center and she could have finally gone to the embassy for the interview if only the lawyer had promptly replied to correspondence and requests from the NVC. Unfortunately, he didn’t, the dates retrogressed (went backwards) so the visa was no longer available, and the nurse had to wait again for a visa to be available. We represented her in preparing the case at the NVC the second time and also preparing her for the embassy interview. This time she had a successful appointment at the embassy as soon as the visa was available. She definitely thought an attorney made a difference.

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