- Employment Law Guide
Work Authorization for Non-U.S. Citizens: Registered Nurses (H-1C Visas)
Compliance Assistance By Law
DOL Agency Assistance
Other Government Assistance
Updated: September 2009
Section 212(m) of the
Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act)
(8 USC §1101 et seq.(http://www4.law.cornell.edu/uscode/8/1101.html); 20 CFR Part 655(http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=37d3532fdedfe1089145315391a5f161&tpl=/ecfrbrowse/Title20/20cfr655_main_02.tpl), Subparts L and M)
Who is Covered
The Nursing Relief for Disadvantaged Areas Act of 1999 and its reauthorization in December of 2006 allows qualifying hospitals to employ temporary foreign workers (nonimmigrants) as Registered Nurses (RNs) for up to three years under H-1C visas. Only 500 H-1C visas can be issued each year during the three-year period of the H-1C program (2006-2009).
The Office of Foreign Labor Certification(http://www.foreignlaborcert.doleta.gov/) (OFLC) of the Employment and Training Administration (ETA)(http://www.doleta.gov/) administers the labor attestation process of the H-1C program. The H-1C program applies to employers seeking to hire registered nurses at hospitals/facilities only in certain disadvantaged areas. The provision sunsets December 19, 2009.
The Immigration and Nationality Act (INA) restricts the employers eligible to participate in the H‑1C program. Only hospitals in health professional shortage areas as defined by the Public Health Service Act and qualified based on the cost reporting period of fiscal year 1994 under Title XVIII of the Social Security Act may file applications for foreign registered nurses under the H-1C program. The employer must attest to the attestations located in 20 CFR 655.1111 through 655.1118.
The Wage and Hour Division(http://www.wagehour.dol.gov/) investigates and resolves complaints that the employer failed to meet conditions to which it attested. Complaints about such matters should be filed with a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm).
All appropriate protections under U.S labor laws apply to workers under a temporary labor certification from the Department of Labor.
No facility may intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person because such person has filed a complaint, testified, sought counsel, or asserted or exercised any rights on behalf of himself or others.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
There are specific notice and posting requirements relating to the Attestations and petitions.
Notice of the filing of the Attestation Form ETA 9081(http://www.foreignlaborcert.doleta.gov/pdf/eta9081.pdf) must be provided by the facility to the bargaining representative of the registered nurses at the facility immediately upon filing with the Department of Labor. Notice of the filing of the petition must also be provided by the facility to the bargaining representative for the nurses on the date of such transmission to the Department of Homeland Security. If there is no bargaining representative, a written notice must be posted at two or more conspicuous locations at the facility. In the alternative, electronic notice may be given by whatever means the employer normally communicates with its employees (e.g., e-mail or home Web page). The notice may be either a copy of the Attestation or petition, or a document stating that the Attestation or petition has been filed and is available for review at the facility. The petition notice must remain posted for 10 days. The Attestation notice must either be posted for the duration of the validity period or sent to the individual e-mail addresses of each nurse.
The notice must include the following statement: "Complaints alleging misrepresentation of material facts in the Attestation or failure to comply with the terms of the Attestation may be filed with any office of the Wage and Hour Division of the U.S. Department of Labor."
Within 30 days of the date of the filing of the Attestation, a copy must be provided to all registered nurses employed at the facility either by individual e-mail, or by posting and delivering the nurse a hard copy.
The facility must maintain a separate file available to any interested parties within 72 hours upon written or oral request containing a copy of various documents, including the attestation, the prevailing wage determination, description of the facility’s pay system (or copy of the pay schedule), and copies of all notices required by the regulations.
The facility must maintain its payroll records for at least three years, and make the records available if there is an enforcement action.
There are no reporting requirements.
The Department of Labor may assess a civil money penalty not to exceed $1,000 per nurse per violation, with the total penalty not to exceed $10,000 per violation. The Department also may impose appropriate remedies, including the payment of back wages, the performance of attested obligations such as providing training, and reinstatement and/or wages for laid off U.S. nurses.
Relation to State, Local, and Other Federal Laws
Various Federal, state, and local labor standards, such as the Fair Labor Standards Act, will apply to foreign workers employed in the U.S.
Compliance Assistance Available
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act.
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page.
Employment and Training Administration,
Office of Foreign Labor
Tel: 1-877-US2JOBS (1-877-872-5627) or 1-202-693-3010; TTY
The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources of applicable law. Every effort has been made to ensure that the information provided is complete and accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at www.dol.gov/compliance or by calling our Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365) (1-866-487-2365).