Section-By Section Summary of the

Nursing Relief for Disadvantaged Areas Act of 1999 (PL106-95)

Section 1

Short Title

Section 2:

• Establishes a new H-1C category for registered nurses working at hospitals in Health Professional Shortage Areas

Requirements for Qualification

• To qualify, nurses must:

1. have a full and unrestricted license as a nurse in their home countries or must have been educated in the United States
2. pass an appropriate examination (to be determined by HHS), or have a full and unrestricted license to practice as an RN in the state of intended employment
3. must be fully qualified and eligible under all state laws and regulations to practice as an RN in the state of intended employment immediately upon admission to the United States.

Attestation by Employer

• Requires facilities hiring H-1C nurses to file an attestation with the Department of Labor that:

1. the employer is a hospital (as defined under Section 1886(d)(1)(B) of the Social Security Act)^* and is located in a designated health professional shortage area, has at least 190 acute care beds, and that, since 1994, ahs had at least 35% of its patients entitled to Medicare, and at least 28% Medicaid;
2. employment of the nurse will not adversely affect wages and working conditions of similarly employed nurses;
3. the nurse will be paid the same rate as other registered nurses similarly employed at the facility;
4. the facility has taken and is taking timely and significant steps to recruit and retain U.S. citizen or immigrant 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 with in the 90 days before and the 90 days after the date of filing a visa petition for the H-1C nurse and the employment of an H-1C nurse is not intended or designed to influence union activity (layoff means loss of employment other than through discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or expiration of a grant or contract but does not include any situation in which the work is offered, as an alternative to termination, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits, regardless of whether the alternative job offer is accepted).
6. notice of the filing is provided to the bargaining representative for registered nurses at the facility or, if no bargaining representative, has been posted to employees in conspicuous locations;
7. that the facility will never employ H-1C nurses as more than 33% of its total registered nursing staff;
8. the H-1C nurse will not work at any worksite not directly controlled by the employer or transfer the H-1C nurse to another worksite during the course of the nurse’s employment.

• No facility is required to have taken timely and significant steps to recruit and retain U.S. nurses until after the enactment of this act.
• Significant steps will include (non-exclusive list):

1. operating a training program for nurses at the facility or financing (or providing participation in) a program elsewhere;
2. providing career development programs and other methods to encourage other health care workers to become registered nurses;
3. paying a wage to registered nurses higher than the prevailing wage;
4. providing "reasonable opportunities for meaningful salary advancement" by RNs.

• Facilities do not need to take more than one step if a second step is "not reasonable"
• Attestations are valid for one year from date of filing, or the last day that any H-1C nurse is employed under the attestation (whichever is later), and can be used for filing petitions for one year from the date of its filing.

Petitions for Multiple Beneficiaries

• More than one nurse may be included in a single petition.

Complaints, Investigation, Penalties on Attestations

• DOL shall keep a list of facilities filing these attestations, and provide for a process for receiving complaints regarding an employer’s compliance with the attestations.
• Any aggrieved person or organization (including bargaining representatives, organizations deemed appropriate by DOL, and other aggrieved parties as determined in DOL regulations) may file complaints.
• DOL must complete initial investigation within 180 days to determine if there is a basis to determine a violation has occurred.
• Where the facility has failed to meet a condition in the attestation or misrepresented a material fact, civil penalty is up to $1000 per nurse per violation up to $10,000 and a bar on filing H-1C petitions of at least one year.
• Where the facility has violated the wage attestation, DOL may order back pay to comply.

Filing Fees

DOL may collect a fee of up to $250 per attestation to cover DOL’s costs for administering the program.

Period of Admission

H-1C nurses may be admitted for three years. No extensions are provided.

Annual Caps

• Up to 500 H-1C visas may be issued each year.
• Sates with less than 9 million in population as of 1990 can not have more than 25 visas annually; states with more than 9 million can have no more than 50 visas annually
• If not all visas available in a quarter are used, the visas may be issued to states regardless of their population or the state cap in the last quarter of the fiscal year

Conditions of Work for H-1C Nurses

• H-1C Nurses must receive wages and working conditions commensurate with other nurses similarly employed at the facility.
• H-1C Nurses shall work hours commensurate with those of other nurses employed at the facility
• The facility shall not interfere with the right of H-1C nurses to join or organize a union

Miscellaneous Provisions

• Repeals H-1A category (INA §101(a)(15)(H)(i)(A)).
• Requires DOL and INS to promulgate final or interim final regulations within 90 days of the date of Enactment (November 12, 1999).
• Category will sunset four years after date the regulations are first promulgated.

Section 3

Reports

• By the end of the four-year term of the H-1C visa category, HHS and DOL shall jointly submit to Congress a report of recommendations (including specific legislative suggestions) on a program to eliminate the dependence of these facilities on H-1C nurses by providing for a "permanent" solution to the shortage of registered nurses in the U.S.
• The report shall also recommend a method for enforcing the requirements imposed on facilities by filing attestations for H-1C nurses that would be more effective that that enacted in this law.

Section 4

Health Care Certification for Nurses

• Provides that 212(a)(5)(C) certification is satisfied by presentation of certification from CGFNS (or an independent credentialing organization approved by the AG and the Secretary of HHS) that:
  1. the individual has a valid unrestricted license as a nurse in a State where the individual is to be employed and the State has verified that any foreign licenses are authentic and unencumbered;
  2. The nurse has passed the NCLEX;
  3. the nurse is a graduate of an English-language nursing program in a country that is designated by CGFNS and that was in operation on or before the date of enactment or has been approved by unanimous agreement by CGFNS and any other approved credentialing organizations
• This provision is effective upon enactment.
• Requires CGFNS to issue it certified statement within 35 days of application by a foreign nurse.

Section 5

National Interest Waiver for Physicians

• Amends the NIW section of the INA to provide that the Attorney General "shall" grant a national interest waiver for foreign physicians if:

1. the physician agrees to work full time in a designated health professional shortage area or in VA hospital; and
2. A federal agency or State department of public health has determined that the physicians work is in the public interest

• The physician may not be eligible for an immigrant visa or adjustment of status until such time as he or she has worked full time as a physician in a shortage area or VA hospital for an "aggregate" of five years (not including time in J-1 status). However, petitions and adjustment applications can be filed prior to the date the five years’ service is completed.
• This section does not apply to waivers approved before the date of enactment. However, in the case of a physician for whom a national interest waiver was filed before November 1, 1998, the AG shall approve the waiver as long as the physician has worked in the shortage area or VA facility for at least three years (not including time as J-1).

Section 5

L-1 and EB-1 Classification for Employees of Multinational Accounting Firms

• Employees of multinational accounting firms may qualify for L-1 or EB-1 visas, if otherwise eligible, if:
  1. the firm is a partnership organized in the United States to provide accounting or management consulting services under an internationally recognized name;
  2. There is an agreement with a worldwide coordinating organization that is collectively owned and controlled by the member accounting and management consulting firms or by the elected members thereof.
• The entity outside of the United States shall be considered to be an affiliate of the U.S. accounting or management consulting firm if it markets its services under the same internationally recognized name directly or indirectly under an agreement with the same worldwide coordinating organization of which the U.S. entity is a member.
• Continues this qualifying relationship even if firms associate with a successor worldwide coordinating organization, which is not collectively owned and controlled.

39BS9024

Attachment –

Definition of Hospital:

(B) As used in this section, the term ''subsection (d) hospital'' means a hospital located in one of the fifty States or the District of Columbia other than -

(i) a psychiatric hospital (as defined in section 1395x(f) of this title),

(ii) a rehabilitation hospital (as defined by the Secretary),

(iii) a hospital whose inpatients are predominantly individuals under 18 years of age,

(iv)(I) a hospital which has an average inpatient length of stay (as determined by the Secretary) of greater than 25 days, or (II) a hospital that first received payment under this subsection in 1986 which has an average inpatient length of stay (as determined by the Secretary) of greater than 20 days and that has 80 percent or more of its annual Medicare inpatient discharges with a principal diagnosis that reflects a finding of neoplastic disease in the 12-month cost reporting period ending in fiscal year 1997, or

(v)(I) a hospital that the Secretary has classified, at any time on or before December 31, 1990, (or, in the case of a hospital that, as of December 19, 1989, is located in a State operating a demonstration project under section 1395f(b) of this title, on or before December 31, 1991) for purposes of applying exceptions and adjustments to payment amounts under this subsection, as a hospital involved extensively in treatment for or research on cancer, or¹ (II) a hospital that was recognized as a comprehensive cancer center or clinical cancer research center by the National Cancer Institute of the National Institutes of Health as of April 20,1983, that is located in a State which, as of December 19, 1989, was not operating a demonstration project under section 1395f(b) of this title, that applied and was denied, on or before December 31, 1990, for classification as a hospital involved extensively in treatment for or research on cancer under this clause (as in effect on the day before August 5, 1997), that as of August 5, 1997, is licensed for less than 50 acute care beds, and that demonstrates for the 4-year period ending on December 31, 1996, that at least 50 percent of its total discharges have a principal finding of neoplastic disease, as defined in subparagraph (E);

and, in accordance with regulations of the Secretary, does not include a psychiatric or rehabilitation unit of the hospital which is a distinct part of the hospital (as defined by the Secretary). A hospital that was classified by the Secretary on or before September 30, 1995, as a hospital described in clause (iv) shall continue to be so classified notwithstanding that it is located in the same building as, or on the same campus as, another hospital.