In January 2019, the Fairness for High-Skilled Immigrants Act was introduced as proposed legislation in both the House (HR 1044) and the Senate (S 386). The legislation seeks to relieve the long wait for green cards that exists for applicants from India and China. Even though this is a worthwhile objective, the legislation’s unintended consequences would have devastating consequences for U.S. hospitals suffering from the nursing shortage, especially those in rural areas.

Seven Year Wait for Nurses

For hospitals and other healthcare providers who struggle to find enough nurses in the midst of our nationwide nursing shortage, the fundamental impact of the proposed legislation would be that any nurse petitioned after the law went into effect would have to wait for 7.5 years to get a visa.

Many hospitals depend on international nurses as a vital component of their overall ability to deliver nursing care. Our members tell us that some hospitals avoid cutting services or closing beds because international nurses provide a source of nursing care not available with domestic levels of supply. U.S. patients would suffer from this legislation.

A Quick Summary of the Employment Based Visa Situation in the United States

The Immigration and Naturalization Act allows for 140,000 Employment-Based visas per year, of which 80,080 are used by EB-2 and EB-3 positions. Current law does not allow more than 7.5% of these visas to go to any specific nationality. Consequently, due to these “per-country caps,” nations with higher populations are more likely to have a wait time for visas.

Nurses are eligible for these visas depending on their education level, along with other professions. Nurses are not eligible for the work visas used for other professions, most notably, the H1B.

The Impact of the Fairness for High-Skilled Immigrants Act

The Fairness for High-Skilled Immigrants Act (H.R. 1044), co-sponsored by Reps. Zoe Lofgren (D-CA), Ken Buck (R-CO), and many bipartisan members and the companion Senate bill (S. 386 sponsored by Sens. Mike Lee (R-UT) and Kamala Harris (D-CA) with multiple co-sponsors), would amend the Immigration and Nationality Act by eliminating per-country caps for employment-based immigrant visas.

The proposed law doesn’t add any visas to the annual number of EB-2 and EB-3 visas. It just re-orders the queue in which the numbers are claimed.

As of April 2018, there were approximately 550,000 EB-2 and EB-3 Indian immigrants and their spouses and minor children waiting for green cards. Additionally, there are 25,000 Chinese and 21,000 Philippine immigrants and their spouses and minor children also waiting for green cards. No other countries have material retrogressions. In total the visa backlog for EB-2 and EB-3 is about 596,000.

U.S. Healthcare Delivery Would Suffer with the Fairness for High-Skilled Immigrants Act

At a run rate of 80,080 EB-2 and EB-3 visas per year and a backlog of 596,000 applicants, there will be a permanent EB-2, EB-3 retrogression of 7.45 years (596,000 / 80,080 = 7.45).

U.S. hospitals and healthcare facilities need nursing help now. Not 7+ years from now.

The goal is to achieve a more equitable immigration system, but it would inadvertently devastate access to health care in the United States by restricting the immigration and hiring of foreign-educated registered nurses.

In application, the removal of the caps would prioritize Indian nationals above all other green card applicants. Since few nurses waiting for visas are Indian nationals, this legislation would result in an immediate retrogression in the availability of foreign-educated nurses from countries like the Philippines, Kenya, Nigeria, Jamaica, the United Kingdom, and all other countries.

Rural and underserved communities feel America’s nursing crisis most acutely. Any disruption in the flow of foreign-educated health care practitioners will only harm these populations by restricting their access to medical care.

There is a better way

The AAIHR proposes to add language aimed at curing this deficiency. Our solution would thoughtfully mitigate the problems borne of the Fairness for High-Skilled Immigrants Act by specially apportioning employment-based immigration third preference category (EB-3) visas for nurses and other care professionals in critical need categories.

Because the immigrant visas set aside in our solution are aimed at Department of Labor-designated shortage occupations (Schedule A), there will be no adverse impact on U.S. workers.

Congress must act to cure the Fairness For High Skilled Immigrants Act.

There is no substantive or procedural reason why they cannot add this language. Americans’ access to health care will be severely restricted unless and until Congressional members add language to the Fairness for High-Skilled Immigrants Act as a technical amendment.

The current language of the Fairness for High-Skilled Immigrants Act would be a win for Indian nationals and a loss for American patients. Let’s make it a win for both.