H.R. 441 (ih) To amend the Immigration and Nationality Act with respect to the requirements for the admission of nonimmigrant nurses who will practice in health professional shortage areas. [Introduced in House] ...

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        H.R.441

                       One Hundred Sixth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

         Begun and held at the City of Washington on Wednesday,
   the sixth day of January, one thousand nine hundred and ninety-nine


                                 An Act


 
    To amend the Immigration and Nationality Act with respect to the 
requirements for the admission of nonimmigrant nurses who will practice 
                 in health professional shortage areas.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Nursing Relief for Disadvantaged 
Areas Act of 1999''.

SEC. 2. REQUIREMENTS FOR ADMISSION OF NONIMMIGRANT NURSES IN HEALTH 
              PROFESSIONAL SHORTAGE AREAS DURING 4-YEAR PERIOD.

    (a) Establishment of a New Nonimmigrant Classification for 
Nonimmigrant Nurses in Health Professional Shortage Areas.--Section 
101(a)(15)(H)(i) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(15)(H)(i)) is amended by striking ``; or'' at the end and 
inserting the following: ``, or (c) who is coming temporarily to the 
United States to perform services as a registered nurse, who meets the 
qualifications described in section 212(m)(1), and with respect to whom 
the Secretary of Labor determines and certifies to the Attorney General 
that an unexpired attestation is on file and in effect under section 
212(m)(2) for the facility (as defined in section 212(m)(6)) for which 
the alien will perform the services; or''.
    (b) Requirements.--Section 212(m) of the Immigration and 
Nationality Act (8 U.S.C. 1182(m)) is amended to read as follows:
    ``(m)(1) The qualifications referred to in section 
101(a)(15)(H)(i)(c), with respect to an alien who is coming to the 
United States to perform nursing services for a facility, are that the 
alien--
        ``(A) has obtained a full and unrestricted license to practice 
    professional nursing in the country where the alien obtained 
    nursing education or has received nursing education in the United 
    States;
        ``(B) has passed an appropriate examination (recognized in 
    regulations promulgated in consultation with the Secretary of 
    Health and Human Services) or has a full and unrestricted license 
    under State law to practice professional nursing in the State of 
    intended employment; and
        ``(C) is fully qualified and eligible under the laws (including 
    such temporary or interim licensing requirements which authorize 
    the nurse to be employed) governing the place of intended 
    employment to engage in the practice of professional nursing as a 
    registered nurse immediately upon admission to the United States 
    and is authorized under such laws to be employed by the facility.
    ``(2)(A) The attestation referred to in section 
101(a)(15)(H)(i)(c), with respect to a facility for which an alien will 
perform services, is an attestation as to the following:
        ``(i) The facility meets all the requirements of paragraph (6).
        ``(ii) The employment of the alien will not adversely affect 
    the wages and working conditions of registered nurses similarly 
    employed.
        ``(iii) The alien employed by the facility will be paid the 
    wage rate for registered nurses similarly employed by the facility.
        ``(iv) The facility has taken and is taking timely and 
    significant steps designed to recruit and retain sufficient 
    registered nurses who are United States citizens or immigrants who 
    are authorized to perform nursing services, in order to remove as 
    quickly as reasonably possible the dependence of the facility on 
    nonimmigrant registered nurses.
        ``(v) 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 within the period 
    beginning 90 days before and ending 90 days after the date of 
    filing of any visa petition, and the employment of such an alien is 
    not intended or designed to influence an election for a bargaining 
    representative for registered nurses of the facility.
        ``(vi) At the time of the filing of the petition for registered 
    nurses under section 101(a)(15)(H)(i)(c), notice of the filing has 
    been provided by the facility to the bargaining representative of 
    the registered nurses at the facility or, where there is no such 
    bargaining representative, notice of the filing has been provided 
    to the registered nurses employed at the facility through posting 
    in conspicuous locations.
        ``(vii) The facility will not, at any time, employ a number of 
    aliens issued visas or otherwise provided nonimmigrant status under 
    section 101(a)(15)(H)(i)(c) that exceeds 33 percent of the total 
    number of registered nurses employed by the facility.
        ``(viii) The facility will not, with respect to any alien 
    issued a visa or otherwise provided nonimmigrant status under 
    section 101(a)(15)(H)(i)(c)--
            ``(I) authorize the alien to perform nursing services at 
        any worksite other than a worksite controlled by the facility; 
        or
            ``(II) transfer the place of employment of the alien from 
        one worksite to another.
    Nothing in clause (iv) shall be construed as requiring a facility 
    to have taken significant steps described in such clause before the 
    date of the enactment of the Nursing Relief for Disadvantaged Areas 
    Act of 1999. A copy of the attestation shall be provided, within 30 
    days of the date of filing, to registered nurses employed at the 
    facility on the date of filing.
    ``(B) For purposes of subparagraph (A)(iv), each of the following 
shall be considered a significant step reasonably designed to recruit 
and retain registered nurses:
        ``(i) Operating a training program for registered nurses at the 
    facility or financing (or providing participation in) a training 
    program for registered nurses elsewhere.
        ``(ii) Providing career development programs and other methods 
    of facilitating health care workers to become registered nurses.
        ``(iii) Paying registered nurses wages at a rate higher than 
    currently being paid to registered nurses similarly employed in the 
    geographic area.
        ``(iv) Providing reasonable opportunities for meaningful salary 
    advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be 
an exclusive list of the significant steps that may be taken to meet 
the conditions of subparagraph (A)(iv). Nothing in this subparagraph 
shall require a facility to take more than one step if the facility can 
demonstrate that taking a second step is not reasonable.
    ``(C) Subject to subparagraph (E), an attestation under 
subparagraph (A)--
        ``(i) shall expire on the date that is the later of--
            ``(I) the end of the one-year period beginning on the date 
        of its filing with the Secretary of Labor; or
            ``(II) the end of the period of admission under section 
        101(a)(15)(H)(i)(c) of the last alien with respect to whose 
        admission it was applied (in accordance with clause (ii)); and
        ``(ii) shall apply to petitions filed during the one-year 
    period beginning on the date of its filing with the Secretary of 
    Labor if the facility states in each such petition that it 
    continues to comply with the conditions in the attestation.
    ``(D) A facility may meet the requirements under this paragraph 
with respect to more than one registered nurse in a single petition.
    ``(E)(i) The Secretary of Labor shall compile and make available 
for public examination in a timely manner in Washington, D.C., a list 
identifying facilities which have filed petitions for nonimmigrants 
under section 101(a)(15)(H)(i)(c) and, for each such facility, a copy 
of the facility's attestation under subparagraph (A) (and accompanying 
documentation) and each such petition filed by the facility.
    ``(ii) The Secretary of Labor shall establish a process, including 
reasonable time limits, for the receipt, investigation, and disposition 
of complaints respecting a facility's failure to meet conditions 
attested to or a facility's misrepresentation of a material fact in an 
attestation. Complaints may be filed by any aggrieved person or 
organization (including bargaining representatives, associations deemed 
appropriate by the Secretary, and other aggrieved parties as determined 
under regulations of the Secretary). The Secretary shall conduct an 
investigation under this clause if there is reasonable cause to believe 
that a facility fails to meet conditions attested to. Subject to the 
time limits established under this clause, this subparagraph shall 
apply regardless of whether an attestation is expired or unexpired at 
the time a complaint is filed.
    ``(iii) Under such process, the Secretary shall provide, within 180 
days after the date such a complaint is filed, for a determination as 
to whether or not a basis exists to make a finding described in clause 
(iv). If the Secretary determines that such a basis exists, the 
Secretary shall provide for notice of such determination to the 
interested parties and an opportunity for a hearing on the complaint 
within 60 days of the date of the determination.
    ``(iv) If the Secretary of Labor finds, after notice and 
opportunity for a hearing, that a facility (for which an attestation is 
made) has failed to meet a condition attested to or that there was a 
misrepresentation of material fact in the attestation, the Secretary 
shall notify the Attorney General of such finding and may, in addition, 
impose such other administrative remedies (including civil monetary 
penalties in an amount not to exceed $1,000 per nurse per violation, 
with the total penalty not to exceed $10,000 per violation) as the 
Secretary determines to be appropriate. Upon receipt of such notice, 
the Attorney General shall not approve petitions filed with respect to 
a facility during a period of at least one year for nurses to be 
employed by the facility.
    ``(v) In addition to the sanctions provided for under clause (iv), 
if the Secretary of Labor finds, after notice and an opportunity for a 
hearing, that a facility has violated the condition attested to under 
subparagraph (A)(iii) (relating to payment of registered nurses at the 
prevailing wage rate), the Secretary shall order the facility to 
provide for payment of such amounts of back pay as may be required to 
comply with such condition.
    ``(F)(i) The Secretary of Labor shall impose on a facility filing 
an attestation under subparagraph (A) a filing fee, in an amount 
prescribed by the Secretary based on the costs of carrying out the 
Secretary's duties under this subsection, but not exceeding $250.
    ``(ii) Fees collected under this subparagraph shall be deposited in 
a fund established for this purpose in the Treasury of the United 
States.
    ``(iii) The collected fees in the fund shall be available to the 
Secretary of Labor, to the extent and in such amounts as may be 
provided in appropriations Acts, to cover the costs described in clause 
(i), in addition to any other funds that are available to the Secretary 
to cover such costs.
    ``(3) The period of admission of an alien under section 
101(a)(15)(H)(i)(c) shall be 3 years.
    ``(4) The total number of nonimmigrant visas issued pursuant to 
petitions granted under section 101(a)(15)(H)(i)(c) in each fiscal year 
shall not exceed 500. The number of such visas issued for employment in 
each State in each fiscal year shall not exceed the following:
        ``(A) For States with populations of less than 9,000,000, based 
    upon the 1990 decennial census of population, 25 visas.
        ``(B) For States with populations of 9,000,000 or more, based 
    upon the 1990 decennial census of population, 50 visas.
        ``(C) If the total number of visas available under this 
    paragraph for a fiscal year quarter exceeds the number of qualified 
    nonimmigrants who may be issued such visas during those quarters, 
    the visas made available under this paragraph shall be issued 
    without regard to the numerical limitation under subparagraph (A) 
    or (B) of this paragraph during the last fiscal year quarter.
    ``(5) A facility that has filed a petition under section 
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing 
services for the facility--
        ``(A) shall provide the nonimmigrant a wage rate and working 
    conditions commensurate with those of nurses similarly employed by 
    the facility;
        ``(B) shall require the nonimmigrant to work hours commensurate 
    with those of nurses similarly employed by the facility; and
        ``(C) shall not interfere with the right of the nonimmigrant to 
    join or organize a union.
    ``(6) For purposes of this subsection and section 
101(a)(15)(H)(i)(c), the term `facility' means a subsection (d) 
hospital (as defined in section 1886(d)(1)(B) of the Social Security 
Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the following requirements:
        ``(A) As of March 31, 1997, the hospital was located in a 
    health professional shortage area (as defined in section 332 of the 
    Public Health Service Act (42 U.S.C. 254e)).
        ``(B) Based on its settled cost report filed under title XVIII 
    of the Social Security Act for its cost reporting period beginning 
    during fiscal year 1994--
            ``(i) the hospital has not less than 190 licensed acute 
        care beds;
            ``(ii) the number of the hospital's inpatient days for such 
        period which were made up of patients who (for such days) were 
        entitled to benefits under part A of such title is not less 
        than 35 percent of the total number of such hospital's acute 
        care inpatient days for such period; and
            ``(iii) the number of the hospital's inpatient days for 
        such period which were made up of patients who (for such days) 
        were eligible for medical assistance under a State plan 
        approved under title XIX of the Social Security Act, is not 
        less than 28 percent of the total number of such hospital's 
        acute care inpatient days for such period.
        ``(7) For purposes of paragraph (2)(A)(v), the term `lay off', 
    with respect to a worker--
            ``(A) means to cause the worker's loss of employment, other 
        than through a discharge for inadequate performance, violation 
        of workplace rules, cause, voluntary departure, voluntary 
        retirement, or the expiration of a grant or contract; but
            ``(B) does not include any situation in which the worker is 
        offered, as an alternative to such loss of employment, a 
        similar employment opportunity with the same employer at 
        equivalent or higher compensation and benefits than the 
        position from which the employee was discharged, regardless of 
        whether or not the employee accepts the offer.
    Nothing in this paragraph is intended to limit an employee's or an 
    employer's rights under a collective bargaining agreement or other 
    employment contract.''.
    (c) Repealer.--Clause (i) of section 101(a)(15)(H) of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)) is amended 
by striking subclause (a).
    (d) Implementation.--Not later than 90 days after the date of the 
enactment of this Act, the Secretary of Labor (in consultation, to the 
extent required, with the Secretary of Health and Human Services) and 
the Attorney General shall promulgate final or interim final 
regulations to carry out section 212(m) of the Immigration and 
Nationality Act (as amended by subsection (b)).
    (e) Limiting Application of Nonimmigrant Changes to 4-Year 
Period.--The amendments made by this section shall apply to 
classification petitions filed for nonimmigrant status only during the 
4-year period beginning on the date that interim or final regulations 
are first promulgated under subsection (d).

SEC. 3. RECOMMENDATIONS FOR ALTERNATIVE REMEDY FOR NURSING SHORTAGE.

    Not later than the last day of the 4-year period described in 
section 2(e), the Secretary of Health and Human Services and the 
Secretary of Labor shall jointly submit to the Congress recommendations 
(including legislative specifications) with respect to the following:
        (1) A program to eliminate the dependence of facilities 
    described in section 212(m)(6) of the Immigration and Nationality 
    Act (as amended by section 2(b)) on nonimmigrant registered nurses 
    by providing for a permanent solution to the shortage of registered 
    nurses who are United States citizens or aliens lawfully admitted 
    for permanent residence.
        (2) A method of enforcing the requirements imposed on 
    facilities under sections 101(a)(15)(H)(i)(c) and 212(m) of the 
    Immigration and Nationality Act (as amended by section 2) that 
    would be more effective than the process described in section 
    212(m)(2)(E) of such Act (as so amended).

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