Caring for an Older America:

Building a Sustainable Domestic Nursing Workforce

By Laura Jolley

University of Virginia Law School

Tied for Fourth Place

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I. Introduction

We live in an aging America. In 2008, the “older population,” commonly defined as

persons sixty-five years or older,1 represented 12.8% of the U.S. population, or approximately

one in every eight Americans.2 By the year 2030, an estimated nineteen percent of the American

population will be over age sixty-five.3 With aging comes a greater need for health care services.

A 2008 Institute of Medicine report noted that the older population accounts for twenty-six

percent of all physician office visits, thirty-five percent of all hospital stays, thirty-four percent of

all prescriptions, and thirty-eight percent of all emergency medical service responses.4 In

response to the increasing older population, industries that serve older adults will undergo

substantial growth in the next ten years.5 Further, financial pressure on hospitals to discharge

patients sooner will drive up the demand for long-term care admissions for older adults at

nursing facilities.6 The nursing workforce provides a substantial fraction of health care services

to older adults, so as the aging population continues to increase so will the nursing workforce

need to in order to meet this increased demand.

As it stands, our current nursing workforce is too small and inadequately trained to meet

the health care challenges facing the U.S. Building a more robust nursing workforce will require

an array of initiatives and investments aimed at increasing the training, recruitment, and retention

                                                                                                               1 Traditionally, in the U.S. age sixty-five is the beginning of old age since this is when Americans become eligible for full Social Security benefits. See U.S. Department of Health and Human Services Administration on Aging, A PROFILE OF OLDER AMERICANS 4 (2009), available at http://www.aoa.gov/aoaroot/aging_statistics/index.aspx. 2 Id. 3 Grayson K. Vincent & Victoria A. Velkoff, THE NEXT FOUR DECADES THE OLDER POPULATION IN THE UNITED STATES: 2010 TO 2050 2 (2010), available at http://www.aoa.gov/aoaroot/aging_statistics/future_growth/future_growth.aspx 4 Institute of Medicine, RETOOLING FOR AN AGING AMERICA: BUILDING THE HEALTH CARE WORKFORCE 45 (2008), available at http://books.nap.edu/catalog.php?record_id=12089#toc 5 Center for Health Workforce Studies School of Public Health University at Albany, THE IMPACT OF THE AGING POPULATION ON THE HEALTH WORKFORCE OF THE UNITED STATES 121 (2006). [hereinafter Center for Health Workforce Studies]. 6 Id.

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of nurses within our workforce. This Note proposes that the United States’ current reliance on

the immigration of foreign-trained nurses as a recruitment initiative is not a responsible solution

to achieving nursing workforce sustainability or meeting the demand for health care services for

our aging population. Reliance on the immigration of foreign-trained nurses misplaces the

necessary incentives for the investment in domestic strategies that are more suitable to the

development of a sustainable and proficient nursing workforce able to meet the growing

demands of an aging America. Further, reliance on foreign-trained nurses adversely affects the

provision of health care in lower-income countries. The development of a self-sufficient nursing

workforce that is able to address the needs of our aging country is good domestic and global

policy and will require a robust, long-term, and coordinated commitment to domestic initiatives.

The recent passing of the Patient Protection and Affordable Care Act (PPACA) represents a

unique opportunity for the development of a comprehensive, systematic approach to nursing self-

sufficiency.

Part I of this Note describes the structure of the U.S. nursing workforce. Part II details

the current and projected shortfalls of nurses in the U.S. Part III examines the U.S.’s

recruitment and employment of foreign-trained nurses to fill domestic nursing shortfalls. Part

IV describes the factors that “push” and “pull” foreign-trained nurses into the U.S. market. In

Part V this Note outlines the benefits to the U.S. and foreign countries from the U.S.’s reliance

on foreign-trained nurses. In contrast, Part VI delineates the challenges created by the reliance

on foreign-trained nurses to fill domestic shortfalls. Finally, Part VII sets forth

recommendations for developing a more sustainable nursing workforce able to care for our aging

population. Recommendations fall into three categories: (1) recommendations to build a

stronger domestic nursing workforce through solutions funded and implemented in the U.S; (2)

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recommendations that focus on collaborative efforts to build self-sufficient nursing workforces

in low- and middle-income countries, and (3) recommendations for the implementation of safety

mechanisms if the U.S. continues to rely on foreign-nurses to fill domestic shortfalls.

I. Nursing in the U.S.

The nursing profession is comprised of multiple individual nursing occupations. The

generic descriptor “nurses” is used to refer to registered nurses (RN), licensed practical nurses

(LPN), nursing aides, and home health aides. While the educational requirements and

responsibilities for the various nursing cadres differ, the nursing profession as a whole is

responsible for direct patient care in most health care settings.

Educational requirements for RNs vary and consist of either a bachelor’s degree in

nursing, an associate’s degree in nursing, or a diploma from a hospital-administered nursing

school.7 In order to obtain a state license, a registered nurse must pass the National Council

Licensure Examination – Registered Nurse (NCLEX-RN).8 Fifty-eight percent of RNs are

employed in hospital settings9 where older adults make up thirty-eight percent of all hospital

stays.10 RNs are also employed in nursing and other residential facilities (eight percent), in home

health care (five percent), and in health offices and clinics (eleven percent).11 Only four percent

of registered nurses are employed in education and teaching.12 RNs are primarily responsible for

providing direct patient care, educating and advising patients and their caregivers, and

developing and managing nursing care plans.13

                                                                                                               7 Center for Health Workforce Studies, supra note 5, at 111. 8 National Council of State Boards of Nursing, https://www.ncsbn.org/nclex.htm (last visited Dec. 14, 2010). 9 Center for Health Workforce Studies, supra note 5, at 111. 10 Institute of Medicine, supra note 4, at 45. 11 Center for Health Workforce Studies, supra note 5, at 112. 12 Id. 13 Id. at 109.

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The educational background of LPNs also varies, but all LPNs are required to complete a

state approved nursing program, which typically lasts one year, and pass a state-based licensing

exam, the National Council Licensure Examination – Practical Nurse (NCLEX- PN).14 Nearly

half of all LPNs have an associate’s degree and five percent have a bachelor’s degree. Nursing

and residential care facilities employ thirty-two percent of LPNs, hospitals twenty-eight percent,

health care offices sixteen percent, and home health care agencies six percent.15 LPNs are under

the supervision of RNs and physicians, and are primarily responsible for bedside care (i.e.

changing dressings, attending to the general comfort of the patients). Teaching facilities only

employ three percent of LPNs.16

No formal education is required for nursing aides. Training is often provided at the

health care facility or in community colleges. However, home health aides are required to pass a

competency exam in order for Medicare to reimburse their employer for their services.17 The

majority of nursing aides are employed in nursing and residential care (fifty-one percent)

followed by hospitals (twenty-five percent).18

II. Creation of a Domestic Nursing Shortage

As is the general population, the nursing workforce is also aging. In fact, the nursing

workforce is out-aging the general workforce. The median age for the American workforce

overall is forty-years old, while the median age for RNs is forty-three and forty-four for LPNs.19

By 2020, forty-five percent of RNs will have reached retirement age and similar percentages of

LPNs are expected to reach retirement age in the next ten years.20 In addition to large numbers

                                                                                                               14 National Council of State Boards of Nursing, https://www.ncsbn.org/nclex.htm (last visited Dec. 14, 2010). 15Center for Health Workforce Studies, supra note 5, at 113. 16 Id. 17 Id. at 114. 18 Id. 19 Id. at 112. 20 Id.

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of nurses retiring, work hours are shown to decline for RNs and LPNs after age fifty-five, from a

mean of more than thirty-three hours a week for nurses younger than fifty-five to a mean of

fewer than thirty-one hours for those over age fifty-five.21 In contrast, nursing and home health

aides have a greater percentage of workers under age forty-five, and a median-age of only thirty-

nine, one year younger than the American workforce as a whole.22 It is more difficult, however,

to assess the supply of nursing and home health aides, as they are not required to attain a degree

or licensure, but turnover and retention problems are very serious for this occupation.23 Factors

that contribute to the high turnover rates for nursing aides, particularly those employed in

nursing facilities, include low salaries, little to no benefits, challenging work conditions with

high rates of workplace injury, and very limited possibilities for career advancement.24 In all

nursing cadres reimbursement issues, poor working conditions, and extensive regulatory

requirements are contributing factors to the continual shortage of workers.25

Domestic nursing schools are also not able to keep up with the demand for nursing

services.26 The American Association of Colleges of Nursing found that nearly 30,000 qualified

applicants were turned away from baccalaureate nursing programs and as many as 150,000 from

all nursing programs in 2005 because of shortages of faculty, resources, space, and clinical

                                                                                                               21 Id. 22 Id. at 115. 23Id. at 112. 24 Patricia Keenan, Commonwealth Fund, THE NURSING WORKFORCE SHORTAGE: CAUSES, CONSEQUENCES, PROPOSED SOLUTIONS, 3 (2003). 25 Kevin C. Fleming, Jonathan M. Evans, & Daryl S. Chutka, Caregiver and Clinician Shortages in an Aging Nation, 78 MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH 1026, 1027 (2003); Center for Health Workforce Studies, supra note 5, at 112. 26 Daniel Polsky, Julie Sochalski, Linda H. Aiken & Richard A. Cooper, Leonard Davis Institute of Health Economics, MEDICAL MIGRATION TO THE U.S.: TRENDS AND IMPACT, 1 (2007), available at http://www.upenn.edu/ldi/issuebrief12_6.pdf

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placement sites.27 This shortage has produced RN vacancy rates of ten to fifteen percent in U.S.

hospitals and nursing homes.28

While the U.S. is currently suffering from a shortage of nurses, the shortage is only

estimated to grow larger as the demand increases and more nurses retire. The Bureau of Labor

Statistics predicts that between the years of 2008 and 2018 registered nurses and home health

aides will be the two fastest growing occupations in the U.S.29 Specifically, as illustrated in

Figure 1 below, between the years 2008 and 2018 registered nurses are estimated to have a total

of 1.03 million job openings due to growth of the health care industry and replacement needs.

LPNs, nursing aides, and home health aides are predicted to experience similar increases with

total job openings of 391,300, 422,300 and 1.3 million, respectively. The increase in the number

of new and replacement openings represents large increases in these sectors. For instance, as

illustrated in Figure 2, this is a fifty percent increase in home health aides and a twenty-two

percent increase in registered nurses needed to meet the growing demand of the health care

system.

Figure 1: Predicted total job openings due to growth and replacement needs for all nursing

cadres for 2008-2018.30

                                                                                                               27 Linda H. Aiken, U.S. Nurse Labor Market Dynamics Are Key to Global Nurse Sufficiency,42 HEALTH SERVICES RESEARCH 1299,1303 (2007). 28 Daniel Polsky, Sara J. Ross, Barbara L. Brush & Julie Socharlski, Trends in Characteristics and Country of Origin Among Foreign-Trained Nurses in the United States, 1990-2000, 97 Am. J. Public Health 895, 895 (2007) [hereinafter Polsky, Trends in Characteristics]. 29 T. Alan Lacey & Benjamin Wright, Bureau of Labor Statistics, Occupational Employment Projections to 2018, MONTHLY LABOR REVIEW, 82, 84 (2009). 30 Id. at 107-08.

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Figure 2: Percentage increase estimated for 2008 – 2018 for nursing workforce by

cadre.31

Further, studies have repeatedly shown a very strong relationship between inadequate staffing

and adverse patient outcomes, including mortality.32

Despite the current shortage, predictions of a much greater nursing shortage in the future,

and data showing a relationship between inadequate staffing and poor health outcomes – the U.S.                                                                                                                31Id. at 93. 32 Joint Comm’n on Accreditation of Healthcare Organizations, Health Care at the Crossroads: Strategies for Addressing the Evolving Nursing Crisis 14 (2003).

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lacks a coordinated response to this domestic nursing shortage. The U.S. states have

implemented various piecemeal approaches through public-private partnerships and with funding

from Title VIII of the Public Health Service Act. However, no systematic approach exists and

various interest groups, such as Filipino nursing organizations, the Foreign Nurse Taskforce, and

immigration focused law centers have successfully lobbied Congress to amend our immigration

laws such that the recruitment of foreign-trained nurses has become a primary strategy for

increasing the supply of nurses in the workforce.33

III. Recruitment of foreign trained nurses

One of the United States’ responses to the increasing nursing shortage is the recruitment

and employment of foreign nurses. Globally, there is a very long history of recruiting and

employing foreign trained nurses, but in the 2000s the world started seeing international nursing

recruitment at a magnitude never seen before.34 In 2000, about 181,000 foreign-trained RNs

were working in the U.S., representing 9.1% of the nursing workforce.35 Increasingly other

health professions, particularly physicians, in low- and middle-income countries are retraining as

nurses influenced by the migration potential of a registered nursing degree. Between 2000 and

2007, 3500 Filipino physicians retrained as nurses and left the Philippines for nursing jobs

abroad, and an additional 4000 Filipino physicians enrolled in nursing schools.36 Almost one-

                                                                                                               33 See e.g., Patricia Pittman, Amanda Folsom, Emily Bass & Kathryn Leonhardy, AcademyHealth, NURSE RECRUITMENT: STRUCTURE AND PRACTICES OF A BURGEONING INDUSTRY 6 (2007); Hammond Law Group, RETROGRESSION: THE END OF FOREIGN NURSE RECRUITING? (2004), available at http://www.hammondlawfirm.com/alerts/12.03.2004healthcare_alert.htm; Barbara Marquand, Philippine Nurses in the U.S.: Yesterday and Today, MINORITY NURSE, available at http://www.minoritynurse.com/filipino-philippine-nurses/philippine-nurses-us%E2%80%94yesterday-and-today; Moira Herbst, Immigration: More Foreign Nurses Needed? BLOOMBERG BUSINESS WEEK, June 21, 2009, available at http://www.businessweek.com/bwdaily/dnflash/content/jun2009/db20090619_970033.htm 34 Barbara L. Brush, Julie Sochalski, & Anne M. Berger, Imported Care: Recruiting Foreign Nurses to U.S. Health Care Facilities, 23 HEALTH AFFAIRS 78, 79 (2004). 35 Polsky, Trends in Characteristics, supra note 28, at 896. 36 Aiken, supra note 27, at 1301.

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third of foreign-trained nurses in the U.S. come from the Philippines.37 The second largest

source of foreign-trained nurses in the U.S. is the Caribbean and Latin America, followed by

high-income regions such as Canada, Western Europe, and Australia.38 Recruitment from other

high-income countries, such as Canada, creates a domino effect, with high-income countries that

lose nurses to the U.S., then recruiting in low-income countries to fill their vacancies. More

recently, more foreign nurses are coming from Africa, and less from Asia. Compared with the

foreign nurses immigrating in the 1990s, new foreign trained RNs in 2000 were twice as likely to

come from low-income countries and thirty percent more likely to come from countries with a

low supply of nurses.39 About eighty percent of foreign-born nurses working in the U.S. are

from low- and middle-income countries and are approximately equal in number to the entire

nurse supply of Canada.40

According to current immigration law, foreign-trained nurses on employment-based visas

are only allowed to fill positions as professional nurses, which include registered and advanced

practice nurses. However, there are incidents in which recruitment agencies for health care

organizations hire foreign-trained registered nurses for registered nursing positions, but once the

RN arrives in the U.S. he or she is placed in a lower nursing cadre position (i.e. LPN or nursing

aide positions).41 Thus, while immigration law only formally allows professional nurses to

immigrate on employment-based visas, foreign trained nurses are also filling in lower nursing

cadres as well.

IV. Push and pull factors fueling the immigration of nurses                                                                                                                37 Id. 38 Id. at 1306. 39 Polsky, Trends in Characteristics, supra note 28, at 896. 40 Richard A. Cooper & Linda H. Aiken, Health Services Delivery: Reframing Policies for Global Migration of Nurses and Physicians A U.S. Perspective, 7 POL’Y, POLITICS, & NURSING PRACTICE 66S, 68S (2006). 41 Press Release, U.S. Equal Employment Opportunity Comm’n, EEOC Announces $2.1 million Settlement of Wage Discrimination Suit for Class of Filipino Nurses (Mar. 2, 1999), available at http://archive.eeoc.gov/press/3-2-99.html.

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Health workforce experts often define the migration flow of nurses enabled by pull

factors, recipient country-based polices or opportunities that attract nurses, and push factors,

home country conditions that push nurses out of their home workforce.42

A. Pull factors

1.) U.S. shortage

The U.S. has the largest nursing workforce in the world, which includes nearly

twenty percent of the world’s professional nurses and fifty percent of the world’s English

speaking professional nurses.43 With such a large proportion of the world’s nurses,

seemingly small shortfalls in the nursing workforce in the U.S. can exert a great global

pull. In 2006, the U.S. passed the U.K. as the world’s largest importer of nurses with

around 15,000 foreign-trained nurses passing the registered nursing licensing exam

(NCLEX-RN).44 Thus, the U.S.’s continual shortage of nurses has set the stage for the

creation of a global nursing migration pathway.

2.) Economic, social, and educational factors

The United States has become the destination of choice for many foreign-trained

nurses due to several economic, social, and educational factors. For instance, higher

wages in the U.S., opportunities to pursue advanced education, and a higher standard of

living are all commonly cited reasons for nurse migration.45 U.S. recruitment agencies,

acknowledging the pull effect of education, have included advanced training

                                                                                                               42 Donna S. Kline, Push and Pull Factors in International Nurse Migration, 2Q. J. OF NURSING SCHOLARSHIP 107, 108 (2003). 43 Aiken, supra note 27, at 1299. 44 Id. 45 Id. at 1301.

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opportunities, such as a U.S.-based master’s level education, to further incentivize nurses

to migrate to the U.S.46

3. Aggressive recruitment

Aggressive recruitment by hospitals, nursing homes, and commercial recruiting

firms of foreign-trained nurses is also a primary pull factor.47 Not only do hospitals and

nursing homes independently recruit overseas for nurses, but they hire private for-profit

recruitment agencies that work as brokerages as well.48 Based in the Philippines, India,

and other key country locations recruitment agencies work to advance the foreign nursing

students’ access to information about working overseas, English language training, and

exam preparation courses.49 Formally shouldered by migrating nurses, facilities now

cover the cost of immigrating as part of their recruitment efforts.50 Additionally, foreign-

trained nurses take the U.S. registered nurse licensing exam, NCLEX-RN, overseas now

to streamline their recruitment process into the U.S. nursing workforce.51

4. U.S. immigration law

Recognizing the chronic nursing shortage in the U.S., Congress has traditionally

taken an approach that eases requirements and is conducive to the issuing of non-

immigrant and immigrant visas for professional nurses. Table 1 in the appendix provides

an overview of the various immigration laws Congress has passed to address domestic

nursing shortfalls.

a. Non-immigrant temporary visas

                                                                                                               46 Brush, supra note 34, at 84. 47 Aiken, supra note 27, at 1301. 48Brush, supra note 34, at 83. 49Id. at 84. 50 Id. 51 Id.

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U.S. immigration law has a long history of permitting foreign-born nurses to work

in the United States through the statutory creation of temporary work visas. The H-1C

temporary non-immigrant visa for registered nurses was the most recent example of

this.52 While this temporary visa expired at the end of December 2009 and Congress has

yet to renew it, it still has the possibility of being renewed in the future. Prior to the

congressional creation of the H-1C visa in 1999, nurses had available to them an H-1A

temporary non-immigrant visa, which was issued to more than 10,000 foreign nurses

between 1995 and 2000.53 The H-1A category was replaced with the H-1C non-

immigrant visa category for professional nurses and several differences exist between the

two visa categories, primarily with the H-1C visa being more restrictive. For instance,

under H-1C a much smaller number of visas (only 500) could be allocated annually and

facilities that recruited nurses under the H-1C category were required to file an attestation

with the Secretary of Labor that the facility meets multiple requirements, including that it

is located in a health professions shortage area.54 Only fourteen hospitals in the U.S.

were qualified to hire H-1C non-immigrant nurses. A facility was also restricted in that

at any one time it could not employ H-1C nurses in a number “that exceeds 33 percent of

the total number of registered nurses employed at the facility.”55 Additionally, a facility

was required to take “significant steps” designed at reducing the facility’s dependence on

non-immigrant registered nurses.56 However, a facility could bring in multiple registered

nurses under a single attestation and was not required to take more than one “significant

step” (e.g. operating a training program for registered nurses at the facility) if it could

                                                                                                               52 8 USC § 1101(a)(15)(H)(i) (2010). 53 Kline, supra note 42, at 108. 54 8 U.S.C. § 1182(m)(2)(A) (2010). 55 8 U.S.C. § 1182 (m)(2)(A)(vii). 56 8 U.S.C. § 1182(m)(2)A)(iv); 8 U.S.C. § 1182 (m)(2)(B).

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demonstrate that a second step was not reasonable.57 A registered nurse that was to be

admitted under a H-1C visa was required to have:

(1) 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; (2) has passed an appropriate examination . . . or has a full and unrestricted license under State law to practice professional nursing in the State of intended employment; and (3) 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.58

Further, under the statute, an H-1C nurse was admissible for three years, and was not

authorized to perform nursing services at any worksite other than one controlled by the

facility that submitted the attestation.59 While the H-1C visa category is currently

expired, legislatures have and continue to attempt to extend this visa category, such as

through the Emergency Nurse Supply Relief Act proposed by Rep. Robert Wexler in

May 2009.60 Even if this category is not renewed, there will continue to be nurses

working under the H-1C visa category for the next three years in the U.S., until the last

few nurses that applied for this visa before its expiration have completed their three-year

visa term.

b. Legal permanent resident (LPR) visas for nurses

While the most recent version of the non-immigrant nurse visa has not furthered

the employment of large numbers of foreign-trained nurses due to its numerical and

facility restrictions, employment based visas for foreign-trained nurses seeking legal

                                                                                                               57 8 U.S.C. § 1182 (m)(2)(B)(i); 8 U.S.C. § 1182(m)(2)(B)(iv). 58 8 U.S.C. § 1182(m)(1)(A)-(C). 59 8 U.S.C. § 1182(m)(2)(A)(viii)(I). 60 Diomedes J.Tsitouras & Maria Pabon Lopez, Flatlining: How the Reluctance to Embrace Immigrant Nurses is Mortally Wounding the U.S. Health Care System 12 J. HEALTH CARE L. & POL’Y 235, 250 (2009).

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permanent residency are much more heavily used. Congress has designed the U.S.’s

immigration policy in such a way as to streamline the process for nurses to become legal

permanent residents. Through a Department of Labor regulation, registered nurses are

included in a category known as Schedule A. If an occupation appears on Schedule A the

employer can skip the Department of Labor application process and go directly to the

Department of Homeland Security with the immigrant visa petition, this significantly fast

tracks the process.61 Currently, Schedule A only includes professional nurses, physical

therapists and certain non-citizens of exceptional ability.62 The schedule A category is

intended to cover occupations for which “there are not sufficient United States workers

who are able, willing, qualified, and available.”63 According to the regulation, an

employer can apply for an immigrant visa for a professional nurse if the foreign-trained

nurse has “(1) received a Certificate from the Commission on Graduates of Foreign

Nursing Schools (CGFNS); (2) [] holds a full and unrestricted (permanent) license to

practice nursing in the state of intended employment; or (3) [] has passed the National

Council Licensure Examination for Registered Nurses (NCLEX-RN).”64

Foreign–trained nurses are eligible for an employment based category three

immigrant visa (EB-3). Annual numerical restrictions limit the EB-3 visa category, but

on several occasions Congress has authorized the carry over of unused employment-

based visas authorized from previous years, but never filled, in an attempt to increase the

number of nurses able to immigrate.65 For instance, the Emergency Supplemental

Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005

                                                                                                               61 20 CFR 656.5 (2010). 62 20 CFR 656.15. 63 20 C.F.R. § 656.5. 64 20 C.F.R. § 656.15(c)(2). 65 Aiken, supra note 27, at 1304.

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allowed the State Department to release 50,000 employment-based (EB-3) visas that were

unused from previous years making them available to eligible nurses from India, China,

and the Philippines.66

While Congress designed the H-1C non-immigrant visa to only be temporary,

foreign-trained nurses legally in the U.S. under the temporary visa can apply to have their

status adjusted to a legal permanent resident. If a nurse meets the requirements for a

professional nurse under Schedule A and an employer is willing to file a EB-3 visa

application on his or her behalf, a nurse who originally entered the U.S. as a temporary

worker and restricted to facilities in health professions shortage areas can become a

lawful permanent resident employable anywhere in the U.S.67 Further, if a nurse has filed

for adjustment of status and waiting for a determination for more than 180 days, his or

her work authorization is portable and he or she is eligible to work with another employer

as long as the new employment remains within the nursing profession.68 U.S. Census data

revealed that in 2000, sixty-three percent of foreign-born RNs were U.S. citizens by

naturalization, illustrating that the majority of nurses who come to the U.S. stay

permanently.69

The above discussion on non-immigrant and immigrant visas for nurses only

takes into account nurses that are entering the U.S. under employment provisions in the

Immigration and Nationality Act. Many nurses also enter on family based visas or as

students and acquire work authorization through other immigration pathways.70

B. Push factors

                                                                                                               66 Tsitouras, supra note 60, at 253. 67 8 U.S.C. § 1154(a)(F) (2010). 68 8 U.S.C. § 1154(j). 69 Aiken, supra note 27, at 1304. 70 Id. at 1305.

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1. Poor working conditions in sending countries

There are multiple working conditions in sending countries that tend to push

nurses and other health care workers into employment in high-income countries. For

instance, nursing salaries are often low in sending countries in comparison to other

careers within the country and particularly in comparison to available salaries in high-

income countries. In many sending countries due to the re-structuring of government

salaries as a result of loan requirements from the World Bank and International Monetary

Fund, health budgets and thus health workers’ salaries have been greatly reduced and

have remained low.71 Additionally, a median annual nursing salary in the Philippines in

2006 was approximately $2,000 whereas a similarly trained nurse in the U.S. was

$57,280.72 A large pay differential between sending countries and receiving countries

works to push nurses to emigrate.

Additionally, a large wage differential creates the opportunity for nurses working

abroad to send remittances to family members still residing in the sending country and

functions as a push factor. In 2004, the Central Bank of the Philippines reported total

remittances (from all occupations) of $8.5 billion, which represents ten percent of the

country’s gross domestic product.73 Other factors related to working conditions also tend

to push health workers into immigrating to high-income countries such as professional

isolation, lack of research opportunities, and occupational health risks associated with

inadequate facilities.74

2. Advanced educational opportunities

                                                                                                               71 Tsitouras, supra note 60, at 249. 72 Id. 73 M.A. Kana, From Brain Drain to Brain Circulation, 4 JOS J. OF MEDICINE 8, 9 (2007). 74 Id.

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Many foreign-trained health workers come to the U.S. for additional training

opportunities that might not be available in their home country. However, it is very

common for students after completing their education or advanced degree to never return

to their home country. Nurses cite multiple reasons for this including a lack of research

funding in their home country, poor research facilities, and a lack of educational

opportunities for their children.75

3. Instability

Economic and political instability in countries can greatly influence the migration

of professionals from a country. Health workers are not exempt to this and countries with

chronic poverty and civil war are very likely to see a large emigration of their health

workforce.76

V. Benefits to the U.S. & Foreign Countries

A. Health care provision for aging America

One of the greatest benefits that the U.S. receives from employing foreign-trained nurses

is being able to address the health care needs of aging America. The 2000 census reported that

of new entrants to the U.S. registered nurse workforce 17.5% of foreign-trained nurses were

entering employment in nursing homes, compared to only 6.6% of U.S.-trained nurses.77 This

represents a rather dramatic shift from the U.S. Census data from 1990, which reported that only

6.3% of foreign-trained nurses entering the workforce were doing so through employment in

nursing homes.78 However, there is little evidence that foreign-educated nurses locate in areas of

medical need in any greater proportion than native-born nurses. Studies have found that foreign

                                                                                                               75 Id. 76 Id. 77Polsky, Trends in Characteristics, supra note 28, at 896. 78Id.

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trained nurses are much less likely to settle in rural areas than U.S.-trained nurses and that less

than two percent of foreign-born nurses live outside metropolitan areas, compared to eighteen

percent of native-born nurses.79 The settlement of foreign-trained nurses in primarily

metropolitan areas cuts against one of the main purposes of having relaxed immigration laws,

which is to place foreign-nurses in underserved areas where employers are unable to attract U.S.

trained-nurses and the greatest nursing shortages exist.

B. Increases in the diversity of the nursing workforce

The international recruitment of nurses increases the diversity of the U.S. nursing

workforce. The U.S. is becoming increasingly diverse and having a nursing workforce that

reflects a similar diversity is certainly advantageous. U.S. trained nurses are more likely to be

white than foreign-trained nurses, 90% compared to 32.4% respectively.80 While foreign-trained

nurses increase the diversity of the workforce overall, half of all foreign-trained nurses are Asian,

and only a very small percentage are traditionally underrepresented minorities, either Hispanic or

black.81

C. Remittances and brain circulation

Foreign countries can greatly benefit from the remittances that foreign-trained nurses

send to families still residing in their home country. For instance, as was discussed above, in

2004 nearly ten percent of the Philippines gross domestic product came from remittances.82

Brain circulation occurs when health workers travel overseas for advanced training and

the sharing of ideas, and upon completion of the training return to his or her home country to

serve as an expert and train others. If nurses come to the U.S. to receive advanced training, and

                                                                                                               79 Aiken, supra note 27, at 1308. 80 Id. at 1310. 81 Id. 82 Kana, supra note 73.

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then return to their home country with this new expertise it can be very beneficial for the sending

country. However, many of the health workers that travel abroad for training never return to

their home country. In response, in order to encourage brain circulation and not brain drain,

some training programs are now requiring that health workers return and work in their home

country for a certain number of years after degree or certificate completion.83

VI. Challenges created by reliance on foreign-trained nurses

to address domestic shortfalls

The use of foreign-trained nurses provides a multitude of benefits to the U.S. and older

Americans, but it also creates several challenges both domestically and abroad. These

challenges include unknowns about the quality of care provided, questions on the ability of

foreign-nurses to assimilate into the American health care system, concerns over the abuse of

temporary non-immigrant H-1C visa nurses by facilities, and the depletion of the nursing

workforces of low and middle-income countries.

A. Quality of care & ability to assimilate

There has been relatively little research or data collected on how, if at all, the quality of

care differs between U.S. and foreign-trained nurses. Similarly, researchers have not

systematically evaluated the ability of foreign-trained nurses to assimilate into the American

healthcare system.84 The Commission on Graduates of Foreign Nursing Schools (CGFNS) is a

non-profit organization developed in 1977.85 It was created in response to the U.S. Department

of Labor's concern over a large number of immigrant visas being allocated to nurses who were

                                                                                                               83 See, e.g. Global Scholarship Alliance, http://www.globalscholarship.net/ (last visited Dec. 14, 2010). 84 Brush, supra note 34, at 85. 85 Commission on Graduates of Foreign Nursing Schools, http://www.cgfns.org/sections/programs/cp/ (last visited Dec. 14, 2010).

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unable to pass state licensing exams after arriving in the U.S.86 CGFNS serves to evaluate

foreign nursing education credentials and conduct predictive testing on foreign-trained nurses to

determine the probability of passing state licensing exams prior to being issued an immigrant

visa.87 The CGFNS examination is offered in source countries and covers nursing skills, English

language proficiency, and cultural competency.88 Once a nurse passes the examination he or she

is issued a CGFNS certificate that qualifies the foreign-trained nurse for an EB-3 immigrant

visa.89 Additionally, forty states require that foreign-trained nurses have a certificate from the

CGFNS prior to taking the NCLEX-RN and becoming licensed in the state.90 Researchers,

however, have conducted few studies to evaluate the effectiveness of the CGFNS in evaluating

skills, language, and cultural competency. Cultural competency is important not only for

interactions with patients, but also interactions with other health care workers, particularly other

nurses. Interestingly, a study conducted on the ability of foreign-trained nurses and U.S. nurses

to relate to one another found that U.S. - and foreign-trained nurses generally share a core set of

professional values, such as clinical autonomy and collegiality, and work together to further

goals such as increased professional status.91

B. Depression of registered nursing wages

Facilities that submitted an attestation for the recruitment of non-immigrant nurses under

the H-1C visa, had to attest that the employment of a foreign-trained nurse would not adversely

affect the wages and working conditions of registered nurses similarly employed.92 The statute

                                                                                                               86 Id. 87 Id. 88 Id. 89 20 C.F.R. § 656.15(c)(2) (2010). 90 Commission on Graduates of Foreign Nursing Schools, http://www.cgfns.org/sections/programs/cp/ (last visited Dec. 14, 2010). 91 Aiken, supra note 27, at 1311. 92 8 U.S.C. § 1182(m)(2)(A)(ii)-(iii) (2010).

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also required that foreign-nurses be paid the wage rate of similarly situated U.S. trained nurses.93

In order to enforce this, the Secretary of Labor is required to undertake an investigation of the

facts attested to by the facility if a complaint is filed and the Secretary finds that there is

“reasonable cause” to believe that the facility has either failed to meet the conditions attested to

or misrepresented a material fact.94 If, a facility is found in violation of its attestation,

particularly relating to the payment of foreign-trained nurses at the wage rate, the facility can be

assessed a civil monetary penalty (not more than $1000 per nurse), will not be approved for

petitions for the employment of nurses for one year, and is required to provide back pay to any

foreign-trained nurses.95 With requirements such as these in place, it creates a disincentive for

facilities to increase the wages of U.S. trained nurses in an effort to recruit and retain domestic

nurses within the facility. It is also debatable whether a health care worker will report a facility

in violation to the Secretary of Labor and, if so, whether the sanctions are really great enough to

discourage a facility’s behavior of paying foreign-trained nurses below the wage rate.

Standards are more lenient for nurses applying for legal permanent residence, in that the

Department of Labor has pre-determined that “wages and working conditions of United States

workers similarly employed will not be adversely affected by the employment of aliens in

Schedule A occupations.”96 Thus, facilities are not required to complete an attestation, but when

petitioning for the employment-based immigrant visa they must submit a prevailing wage

determination with the application.97 Similar to the non-immigrant visa, this statutory

requirement does not create an incentive for wage increases for similarly situated U.S. trained

registered nurses. Further, hospitals have noted that the initial cost of recruiting foreign nurses is

                                                                                                               93Id. 94 8 U.S.C. § 1182(m)(2)(E)(ii)-(v). 95 Id. 96 20 CFR 656.5 (2010). 97 20 CFR 656.15(b)(1).

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higher than that of hiring domestic nurses, but many feel that money is saved in the long run due

to a reduced turnover of foreign trained nurses. Nurses on an H-1C visa are tied to the

employment, and thus unable to leave, and many recruitment agencies assure full or partial

remuneration to facilities if recruited nurses do not meet their contractual obligations.98 Thus,

from a hospital’s point of view, recruiting abroad may be less costly than raising salaries,

increasing benefits, and providing other economic incentives needed to retain domestic nurses.99

In contrast, some studies have shown that the annual income of foreign-trained nurses is

considerably higher than their U.S. trained counterparts, although, at least half of this difference

is likely from foreign-trained nurses’ older age, longer work hours, and location within states

with higher nursing wages.100

C. Exploitation of foreign-trained nurses

Of great concern, is the exploitation of foreign-trained nurses once they arrive in the U.S.

The requirements of the H-1C non-immigrant visa, tie foreign-trained nurses to their

employment site. Additionally, many nurses are unaware at the time of recruitment that the

employment is only on a temporary basis. Foreign-trained nurses are particularly vulnerable to

exploitation because they often lack a social and support network in the U.S. The American

Nurses Association documented multiple instances of exploitation, and worked with several

organizations to develop a code of ethics for the industry.101 To comply with the code,

institutions are required to provide nurses with information on their rights prior to the signing of

an employment contract.102 Further, there have been occasions in which foreign-trained nurses

                                                                                                               98Brush, supra note 34, at 83. 99 Id. 100 Polsky, Trends in Characteristics, supra note 28, at 896. 101 Lori Aratanti, Code Aims to Aid Nurses, WASHINGTON POST, Sept. 6, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/09/12/AR2008091203001.html 102Id.

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have successfully brought claims against facilities for exploitation. For example, in Villaneuva

v. Woodbine Healthcare Center sixty-five Filipino nurses filed an employment discrimination

claim against a nursing facility and received a 2.1 million dollar settlement.103 The claim was

filed for the facility’s action in hiring foreign-trained registered nurses in nursing aid positions

and paying those that were hired in registered nursing positions $6.00 less per hour than similarly

situated U.S. trained registered nurses at the facility.104 The Department of Labor also

investigated the facility for the wage rate violation, requiring the facility to pay back wages to

the nurses.105

D. Brain drain of nursing workforce from low- and middle-income countries

The U.S.’s reliance on foreign-trained nurses is leaving many low- and middle- income

countries starved for their own health workers. Because the U.S. nursing workforce is so large,

even a small increase in the number of RNs immigrating to the U.S. can represent a large

proportion of the sending country’s nurses. For instance, between the years of 1990 and 2000

the 11.1% of RNs who entered the U.S. from Africa, represented more than one percent of the

entire supply of African nurses.106 Even a country like India, where human resources are the

country’s natural resource, has a nurse to population ratio of only 80 nurses per 100,000

people.107 The Philippines has a slightly higher nurse to population ratio of 169 nurses per

100,000 people, but comparatively both countries are much lower than high-income countries

such as the U.S. and U.K. with a nurse density of 937 and 1212 respectively.108 Sub-Saharan

African countries typically have some of the lowest health worker to population ratios. For

                                                                                                               103U.S. Equal Employment Opportunity Comm’n, supra note 41. 104 Id. 105 Id. 106Polsky, Trends in Characteristics, supra note 28, at 898. 107  Lincoln Chen et al., World Health Org., WORKING TOGETHER FOR HEALTH, Annex 4 (2006), available at http://www.who.int/whr/2006/whr06_en.pdf.  108  Id.  

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instance, Malawi and Zimbabwe have nurse to population ratios of fifty-nine and seventy-two

per 100,000 people.109 (See Figure 3 for country comparisons).

Figure 3: Nurses per 100,000 people in select countries110

In the Philippines, the government encourages the migration of nurses to higher-income

countries, partly due to the remittances sent to the country from nurses working overseas.

However, the health care system in the Philippines struggles with the high emigration rate of its

nurses. The country has a low nurse density and the nurses that are lost are often those that are

experienced and/or serving as teaching staff.111

Additionally, not only is international nurse recruitment depleting the nursing workforce

in other countries, but in countries like the Philippines where physicians are re-training as nurses,

it is depleting multiple levels of the health care system.112 Since the majority of RNs in the U.S.

workforce are reporting to have naturalized, and thus decided to remain in the U.S. permanently,

                                                                                                               109Id.  110 Id. 111 Kline, supra note 42, at 109. 112 Aiken, supra note 27, at 1301.

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there appears to be very little “brain circulation” taking place with nurses taking new skills back

to their home countries.113 The current immigration laws are also designed in such a way that

nurses are able to come to the U.S. to work on a permanent basis through the EB-3 visa much

more easily, than on a temporary basis. Even without the expiration of the current H-1C visa

category, when the temporary visa was still available, the restrictions for this category were

much greater on facilities than the restrictions are for facilities recruiting foreign-trained nurses

to immigrate as legal permanent residents.

Further, the U.S.'s current international development and immigration policies are

antagonistic to one another. The U.S. provides billions of dollars in foreign aid, through

contributions to the Global Fund, the development and funding of the President’s Emergency

Plan for AIDS Relief (PEPFAR), and multiple bi-lateral agreements to the very same countries,

from which hospitals and nursing homes then recruit nurses from to meet domestic shortfalls.114

Consequently, countries are unable to harness the financial assistance into actionable gains in the

delivery of health care because countries are without the necessary health workers to vaccinate,

distribute medications, and staff clinics and hospitals. Countries also face little incentive to

invest in the development of a robust and highly skilled nursing workforce when many of their

graduates either upon graduation or after gaining considerable experience will join the

workforces of high-income countries. Additionally, in most sending countries the government is

primarily responsible for financing nursing education, unlike in the U.S. where students must

                                                                                                               113 Id. at 1304. 114 See, e.g., Media Note, U.S. Dep’t of State, U.S. Funding Pledge for HIV/AIDS, Malaria, Tuberculosis Fund (Oct. 5, 2010), available at http://www.america.gov/st/texttrans-english/2010/October/20101005160219su0.1536153.html&distid=ucs; United States President’s Emergency Plan for AIDS Relief, MAKING A DIFFERENCE: FUNDING, available at http://www.pepfar.gov/press/80064.htm  

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privately finance their education, leaving many countries without a return on their investment in

nurses.115

VIII. Recommendations for developing a more sustainable nursing workforce

Recommendations fall into three general categories. The first category (1) consists of

recommendations to build a stronger domestic nursing workforce through solutions funded and

implemented in the U.S. The second category of recommendations (2) focuses on collaborative

efforts to build self-sufficient nursing workforces in low- and middle-income countries. The

third category of recommendations (3) consists of safety mechanisms for implementation if the

U.S. continues to rely on foreign-nurses to fill domestic shortfalls.

(1) Domestic solutions for a domestic shortfall

The first step in satisfying our domestic nursing workforce needs is the development of a

national heath workforce policy. Without a national health workforce policy, the U.S. lacks a

coordinated national commitment to building a sustainable domestic workforce. The passing of

the Patient Protection and Affordability of Care Act (PPACA) represents an opportune moment

in which to develop this coordinated plan. PPACA specifically addresses the health care

workforce and commands the development of a National Health Care Workforce Commission.116

The Commission is responsible for reviewing the health care workforce needs of the U.S.

annually and reporting on these needs to Congress.117 Further, the Commission is to pay

particular attention to the health workforce needs of special populations, such as the aging

population in America.118 Unfortunately, missing from the Commission is the mission of

                                                                                                               115 See generally WORLD BANK, The Nurse Labor and Education Markets in the English-Speaking CARICOM: Issues and Options for Reform, 2 (2009), available at http://siteresources.worldbank.org/INTJAMAICA/Resources/The_Nurse_Labor_Education_Market_Eng.pdf 116 42 U.S.C. §294q (2010). 117 Id. 118 Id.

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developing a national health workforce strategy, even though the Commission is required to

report on the state of the health workforce and make recommendations to Congress. PPACA has

listed building nursing workforce capacity at all levels as a high priority topic, and provides

extensive funding for studies of effective mechanisms for financing education and training in

health care careers.119 Specifically, it authorizes state health workforce development grants,

funding for centers that will provide geriatric education and training, geriatric career incentive

awards for advanced practice nurses, and a loan repayment and scholarship program for nurses

pursuing advanced education to become teaching faculty.120 There are also nurse retention

grants authorized through PPACA for facilities that develop career ladder programs and other

retention efforts that focus on increasing nurse involvement in the organizational and clinical

decision-making process of a health care facility.121 PPACA appears to be a step in the right

direction with multiple initiatives aimed at domestic programming in an effort to increase the

stock of U.S. trained nurses. However, the U.S. still needs to create a national domestic

workforce policy to coordinate and complement these efforts. This policy needs to focus on

three primary areas: increasing training capacity, recruitment, and the retention of U.S. nurses.

Many of PPACA’s provisions are targeted at these areas, but a comprehensive plan that details

the current programs available, levels of funding, and future goals for the nursing workforce

would allow for a more systematic and transparent approach. The following include specific

recommendations for inclusion in a national health workforce policy focusing on increasing the

training capacity, recruitment, and retention of U.S.-trained nurses.

(1) Increasing training capacity

                                                                                                               119 42 U.S.C. §298. 120 42 U.S.C. § 297o; 42 U.S.C. § 298. 121 42 U.S.C. § 296p-1.

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The inadequate number of nursing school graduates is not due to the lack of

qualified applicants in the U.S. Rather, the U.S. has a large, qualified applicant pool but

nursing schools turn qualified applicants away due to shortages in faculty, resources,

space, and clinical education opportunities.122 In addition to PPACA initiatives aimed at

increasing faculty by providing loan forgiveness for nurses pursuing a teaching career

track, a coordinated plan should encourage states to provide incentives for facilities, such

as hospitals and nursing centers, to increase their support for nursing education. For

instance, a coordinated plan can encourage health care facilities to provide space within

their current buildings and allow clinical nurses with graduate education to serve as

clinical faculty. Some states have accomplished this by including within a facilities

reimbursement rate the costs to undertake these activities. For example, in 2007,

Maryland implemented an initiative where the State Health Services Cost Review

Commission would increase hospital rates by a tenth of one percent, raising about $100

million over ten years to be used to increase training through expansion of faculty and

use of existing infrastructure within hospitals.123 This type of public-private partnership

for expanding training capacity is being used in a diverse range of settings and has the

opportunity to be a particularly resourceful way to increase training capacity when state

budgets are severely constrained and resource allocation decisions are under scrutiny.

For example, in 2008 the nursing school at Shenandoah University in Virginia formed a

partnership with Inova Health System.124 This two-year partnership supported the

school’s accelerated bachelor’s program in nursing through the funding of scholarships,

                                                                                                               122 Cooper, supra note 40, at 68S. 123 Aiken, supra note 27, at 1313. 124 Robert J. Rosseter, American Association of Colleges of Nursing, NURSING SHORTAGE (2010), available at http://www.aacn.nche.edu/media/factsheets/nursingshortage.htm

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new classrooms, labs, administrative spaces, and providing clinical rotation slots at three

Inova hospitals.125

Further, evidence has shown that a more educated nursing workforce has better

patient outcomes and higher nurse productivity. Building upon grants available through

PPACA for nursing students wanting to seek advanced training in geriatrics and grants to

facilities providing this advanced training, there should be a focus on increasing

baccalaureate degree programs by making them more available and accessible. A

registered nurse is not required to have a baccalaureate degree and in 2000 only slightly

more than half of all RNs reported having either a bachelor’s degree (forty-five percent)

or graduate or professional school degree (ten percent).126 Permitting community

colleges to participate in baccalaureate nursing education by offering the additional

training as a top-up to nurses currently seeking associates degrees can be used to create a

larger cadre of nurses with higher degrees without extending substantially the time it

takes students to complete the additional education.127

In general, by increasing the training capacity of nursing schools and thus creating

more domestically-trained nurses, the U.S. will likely see an increase in the diversity of

the nursing workforce, since fewer historically underrepresented minorities will be turned

away from nursing schools due to lack of overall educational capacity at the schools.128

(2) & (3) Recruitment & Retention

Increasing the training capacity of nursing schools is a vital step in reaching

national self-sufficiency, but if facilities are unable to recruit or retain newly trained U.S.

                                                                                                               125 Id. 126 Center for Health Workforce Studies, supra note 5, at 111. 127 Aiken, supra note 27, at 1314. 128 Id. at 1310.

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nurses then investments in training become futile. The U.S. can best utilize the

opportunity created by PPACA for the provision of nurse retention grants with the

simultaneous closing off of immigration loopholes. Closing off these loopholes would

remove some of the incentives in place that keep wage rates and benefits low for U.S.-

trained nurses. The PPACA created retention efforts include the development and

implementation of career ladder programs and programs that increase the involvement of

nurses in organizational facility decisions. Retention is a particular problem, because as

more nurses exit a facility it creates a domino effect, increasing the workload and stress

for the remaining nurses, thus reducing their job satisfaction and ultimately resulting in

their exit from the facility as well.129

A comprehensive national health workforce policy should not include the creation of

more lenient immigration policies, as the reliance on foreign-trained nurses is not a sustainable

solution. Further, immigration laws only ease the recruitment and hiring of foreign professional

nurses, which includes registered and advanced practice nurses. As discussed in section II

above, nursing shortages exist in all cadres. Foreign-trained nurses that are still working on H-

1C temporary non-immigrant visas or EB-3 permanent resident visas are not permitted to be

employed as LPNs, nursing assistants, or home health aides. There have been proposals to

create visas that allow unskilled immigrant workers to enter the U.S. to provide care for the

elderly in an attempt to address shortages in these other cadres, for example as home health

aides.130 However, these proposals if enacted would continue to focus attention away from

training, employing, and retaining, a U.S. workforce. It seems very likely that this would

encourage nurses to “re-train” as unskilled home health aides in order to enter the U.S, just as

                                                                                                               129 Rosseter, supra note 124. 130 Sarah J. Rasalam, Improving the Immigration Policy of the United State to Fulfill the Caregiving needs of America’s Aging Baby Boomers: The Alternative to Out-sourcing Grandma, 16 ELDER L. J. 405, 439 (2009).

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physicians from the Philippines are “re-training” now as RNs. Additionally, the proposed visa

would require the visa holders to remain in elder care, which creates the same risks of abuse and

exploitation as the H-1C visa does now for registered nurses.

(2) Use country partnerships to invest in stabilizing the nursing workforces of low- and

middle- income countries

This recommendation addresses the lack of coordination between the U.S.’s international

development and immigration policies. Investing in low- and middle-income countries to help

national governments reduce their disease burden is good global and domestic policy. Helping a

country reduce disease burdens and prevent outbreaks increases the country’s productivity and,

because of the increasingly global world we live in, protects America’s health as well. But,

investments in public health initiatives and health systems that lack the health workers necessary

for implementation greatly reduces the effectiveness of the U.S.’ foreign aid. The World Health

Organization is a leader in documenting best practices for increasing the health workforce in

resource limited settings. Examples of these best practices, which would be good foreign aid

investments, include efforts taken to increase job satisfaction for nurses, such as providing short-

term training opportunities outside the country, promotion tracks, and designing continuing

education opportunities that address challenges faced by nurses in practice.131 Other initiatives

include improving living conditions for nurses and their families by investing in infrastructure

and services, such as telecommunications, sanitation, electricity, and the availability of schools

for children.132 Wage increases are generally not thought of as a very effective strategy since the

wage differential between high-income countries and low-income countries is so large, that even

                                                                                                               131 See World Health Organization, INCREASING ACCESS TO HEALTH WORKERS IN REMOTE AND RURAL AREAS THROUGH IMPROVED RETENTION (2010). 132See Id.

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a significant increase in the sending country wages will not greatly reduce the pull of the

recipient country.

However, until our immigration policy better reflects our international development

policy our investments overseas cannot be maximally used. Reducing the current streamlined

immigration provisions will help re-direct efforts of recruitment firms to our domestically trained

nurses and allow source countries to maximally benefit from the training of their national

workforce. While some nurses will continue to immigrate to the U.S. to work, reducing the

streamlining of foreign-nurses into the U.S. should inhibit the aggressive recruitment of those

nurses who would be satisfied remaining within their own country with the above mentioned job

satisfaction and living condition initiatives.

(3) Implementation of safety mechanisms if the U.S. continues to rely on foreign-trained

nurses to fill domestic shortfalls

If the U.S. continues to rely on the use of foreign-trained nurses either through the re-

authorization of the H-1C temporary visa program or on a permanent basis through the EB-3

visa, then there are several mechanisms that can be put in place to help reduce challenges created

by this reliance.

1. Research on communication, assimilation, and quality

Currently, there is a lack of evidence on the quality of care, ability for foreign-

trained nurses to assimilate, and acquisition of effective communication skills. While the

CGFMS is intended to account for these factors, there has still been little research

conducted in the U.S. on cultural adjustment and quality issues. Research will help

inform the CGFMS and the facilities that recruit foreign-trained nurses on how

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programming might be improved to help nurses adjust better and still provide high

quality care.

2.) Protections in place to prevent the exploitation of foreign-trained nurses

Foreign-trained nurses are vulnerable to exploitation by recruitment agencies and

facilities during the recruitment process and after arrival in the U.S. While some

institutions may subscribe to a code of ethics designed to prevent abuse, the risk of

exploitation is still present. Immigration law also includes sanctions for facilities that

violate wage rate requirements, but for this to occur it requires someone with knowledge

of the exploitation to report the violation to the Secretary of Labor and only after an

investigation the Department of Labor may impose sanctions. If a foreign nurse is

unaware of his or her rights it seems unlikely that a nurse will report the exploitation.

Immigrant rights organizations should continue advocacy efforts to educate foreign-

trained nurses on their rights and develop social support networks.

3.) Continued participation in domestic and international ethical recruitment guidelines

Article 13 of the Universal Declaration of Human Rights explicitly states that

“everyone has the right to leave any country, including his own.”133 Individual nurses

should have the ability to choose the practice location of his or her choice. However, the

systematic recruitment of foreign-trained nurses with little regard for the deficiencies it

creates in home countries is not a responsible global policy. Organizations have

undertaken various efforts to create industry-based and international codes of ethical

conduct for the recruitment of foreign educated health workers in response to the

                                                                                                               133 Universal Declaration of Human Rights, art.13, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

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deficiencies that nursing migration creates in source countries and the vulnerability of

foreign-trained health workers to exploitation.

In the United States, the Alliance for Ethical International Recruitment Practices,

a non-profit organization, developed the Voluntary Code of Ethical Conduct.134 The

Code sets out standards that subscribing institutions should use to provide fair and

transparent recruitment, appropriate cultural and clinical orientation, and practices for

reducing the burden felt on source countries.135 A diverse range of stakeholders drafted

the Code and its adoption by recruitment agencies and facilities is voluntary. Institutions

that subscribe to the Code are required to provide potential recruits with information on

their rights once they arrive in the U.S. The Alliance monitors compliance with the Code

among its subscribers by surveying nurses recruited by the subscribing institution and

through "open reports" that can be made by other Code subscribers, foreign-educated

health workers, and other industry participants.136 The Alliance does not provide detailed

information, however, on how it resolves substantiated claims of non-compliance among

the Code's subscribers.137 Due to the voluntary nature of the Code and the lack of explicit

penalties for non-compliance, it is likely that the organizations that are the most likely to

exploit foreign-trained health workers are those that will be the least likely to subscribe

and if they do unlikely to abide by the standards.

Complementing the industry-based code, the 63rd World Health Assembly,

adopted a new WHO Global Code of Practice on the International Recruitment of Health

                                                                                                               134 See Alliance for Ethical Int’l Recruitment Practices, VOLUNTARY CODE OF ETHICAL CONDUCT FOR THE RECRUITMENT OF FOREIGN-EDUCATED NURSES TO THE UNITED STATES, available at http://www.fairinternationalrecruitment.org/images/uploads/THE%20CODE.pdf  135 Id. 136 Alliance for Ethical Int’l Recruitment Practices, MONITORING PROGRAM, http://www.fairinternationalrecruitment.org/index.php/employer_recruiter/monitoring_program/ 137 Id.

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Personnel, which commits member states to apply voluntary principles of ethical

recruitment.138 These two codes differ in that the WHO’s Code applies to member states,

whereas the U.S. Code applies to industry, but both are voluntary. The U.S. government,

as a WHO member state, and U.S. institutions should continue to apply the voluntary

principles in the two ethical guides for recruitment.

IX. Conclusion

Decreasing reliance on foreign-trained nurses, coupled with increases in investments in

the training, recruitment, and retention of U.S. trained nurses is the most sustainable method for

meeting the increased demand our aging population will place on the health care system.

PPACA is a step in the right direction and creates incentives for individuals to pursue nursing,

specifically geriatric nursing, and for facilities to recruit and retain U.S. trained health workers.

However, as long as facilities continue to see the importation of foreign-trained nurses as a

cheaper and more attractive option, and are enabled by our current immigration laws, the

opportunities made available to increase our domestic nursing workforce through PPACA will be

left unfulfilled.

X. Appendix Table 1: Use of U.S. Immigration Laws to Address Domestic Nursing Shortages139 Legislation Primary Component Immigration Nursing Relief Act (INRA) (1989)

A nursing shortage that had developed in the late 1980s prompted Congress to pass this Act. It created an H-1A temporary non-immigrant visa for nurses, made nurses eligible for permanent residency within a five-year period with no numerical limitations or country backlogs, and accelerated permanent resident applications. The H-1A visa program expired in 1996.

Illegal Immigration Reform and Responsibility Act

Made a certificate form the Commission on Graduates of Foreign Nursing Schools (CGFNS) a requirement for a foreign-trained

                                                                                                               138World Health Assembly, Int’l Recruitment of Health Personnel: Draft Global Code of Practice, A63/A/Conf. Paper No. 11 (May 20, 2010), available at, http://www.fairinternationalrecruitment.org/images/uploads/WHO%20-%20International%20recruitment%20of%20health%20personnel%20draft%20code%20of%20practice.pdf 139Tsitouras, supra note 60, at 250-57.      

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(1996) nurse to receive an immigrant visa in the EB-3 category, unless the nurse was already licensed in a U.S. state or had passed the NCLEX-RN exam.

Nursing Relief for Disadvantaged Areas Act (NRDAA) (1999)

This legislation created the H-1C nonimmigrant temporary visa category. The H-1C visa was more restrictive as to which facilities could qualify for its use than its predecessor, the H-1A visa.

Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief (2005)

Allowed the State Department to release 50,000 unused employment visas for use by immigrants from India, Philippines, and China seeking an EB-3 visa, which included nurses.

Nursing Relief for Disadvantaged Areas Reauthorization Act (2006)

Reauthorized the use of the H-1C visa for an additional three years. The H-1C visa expired at the end of 2009 and has yet to be renewed.