Healthcare in Crisis: Exploring Immigration as a Vital Solution for the U.S.

Kathleen Campbell Walker
Chair, Immigration Practice Group
Dickinson Wright PLLC

See all this Month's Articles

Original Publish Date: July 9, 2024

Overview

A recent commentary published by Brookings provides a sobering crystal ball into the future regarding healthcare demands.¹ Over the first two years of the pandemic, the U.S. economy lost 400,000 workers in residential care facilities and nursing, and at present, the shortage is approximately 130,000 based on pre-pandemic levels.² Since the last group of baby boomers turn 65 in 2030, the U.S. Census Bureau estimates that 73 million senior citizens will comprise approximately one-fifth of the U.S. population and will outnumber children.³ In 2017, immigrants comprised 18.2% of healthcare workers and 23.5 percent of formal and nonformal long-term care workers. In addition, 27.5% of direct care workers and 30.3 percent of nursing home housekeeping and maintenance workers were immigrants.⁴ It would seem logical that a streamlined process would be available for employers seeking foreign nationals for staffing shortages in the industry. Unfortunately, the reality of healthcare-based options is minimal at best. This article will not focus on the physician-based alternatives due to word limits.

Paths for Healthcare Workers

Immigration is, unfortunately, an area of extreme bureaucratic complexity. Thus, it is often hard to understand how one step in the process can be a game changer. For example, employers are normally juggling employment-based (as opposed to family-based options) immigrant (permanent residence/green cards) visa options in addition to nonimmigrant-visa (temporary work) based alternatives. The immigrant visa options regarding the steps and timing to reach the goal of permanent residence are very dependent on the nationality and qualifications of the potential hire as well as the category of the type of employment (e.g., degree requirements, experience, and training).

Immigrant Visas

Each year, 140,000 immigrant visas (which number includes dependent spouses and eligible unmarried children) are allocated between the U.S. Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) among new and pending applicants to immigrate to the U.S. Because demand is greater than supply, the backlogs can results in a waiting line of several decades for some.⁵ The priority date for determining the foreign national’s spot in line is determined by the filing a labor certification with the Department of Labor (DOL), when applicable, or an I-140 petition with USCIS. DOS publishes a Visa Bulletin⁶ every month based on demand, backlogs, and processing by USCIS and consular posts abroad to establish the posted priority dates to allow immigrant visa processing to start by USCIS or DOS. The July 2024 Visa Bulletin had terrible news for prospective employers of nurses, who normally fall into the third employment-based category (EB-3) because the position does not require a bachelor’s degree. This category retrogressed the posted priority date by almost one year for nationals of Mexico, the Phillippines, and the rest of the world, except for nationals of China or India. That meant that due to the magical algorithm applied, employers found out that the wait for staffing shortages to be filled for some jobs was postponed for a year. The DOS indicated that if high demand continues for immigrant visas in the EB-3 category, it might be retrogressed again or even become unavailable (U) for filings until the new federal fiscal year starts in October.

Thus, nurse applicants from Mexico, the Phillippines, or the rest of the world (minus India and China) are left in purgatory with the inability to immigrate to the U.S. and commence work for potentially another year or longer.⁷ While the U.S. recognizes the nursing shortage by not requiring a test of the U.S. labor market for foreign nurses (Schedule A), there is no such recognition in our allocation of immigrant visas. Some potential solutions:

Set aside a separate additional allocation of immigrant visas tied to documented healthcare shortages and exempt them from the annual cap due to public health and safety. These healthcare shortages could be certified by states for allocation.
Exempt family members from the 140,000 employment-based cap.
For other healthcare positions, Schedule A could be expanded to include additional positions other than just nurses and physical therapists.
Consider exemptions from immigrant visa number caps, if the worker was educated/trained in the U.S.

Of course, these solutions require legislative action, resulting in the passage of bills, which seems a forgotten practice; and the idea of increasing the number of immigrant visas is a very hard sell, even with emergency-level shortages.

Nonimmigrant Visas

The nursing profession has been the recipient of a few targeted fixes regarding nonimmigrant visa options in the past. For example, in the 1980s and 1990s, Congress created the H-1A category for foreign nurses who would work in facilities deemed to have a shortage of healthcare professionals by the DOL. This option was followed by the H-1C category with similar requirements but a more restrictive scope and a cap of 500 per year. Between FY1990 and FY2012, the U.S. issued 36,743 H-1A visas and 1,042 H-1C visas to foreign health care workers.⁸

The nonimmigrant visa categories used for healthcare shortages are typically the following:

H-1B, H-1B1 (limited to Chile and Singapore), and E-3 (limited to Australia) specialty workers (positions requiring a bachelor’s degree or equivalent).
TN professionals from Mexico and Canada based on the limited professions allowed.
O-1 individuals of extraordinary ability.
H-2B individuals who meet a temporary, intermittent, peak load, or seasonal need.
J-1 for international medical graduates – physicians.

All of the categories present many different considerations. Employers do not heavily rely on the H-1B, H-1B1, or E-3 categories for nurses, for example, because the positions do not typically require a bachelor’s degree. That requirement leaves the nursing nonimmigrant options primarily to the TN category, which is limited to Canadians and Mexicans. Unfortunately, the ability to extend work authorization (Optional Practical Training – OPT) for recent nursing graduates in the U.S. is not possible because nursing is not listed as a STEM field for qualification. Our nonimmigrant category options are obviously not responsive to labor shortages or even national health concerns. Some of the solutions that have been suggested but not implemented are:

The Immigrants in Nursing and Allied Health Act of 2022 (H.R. 8021, 117th Congress) would have allowed U.S. Health and Human Services (HHS) to provide grants to state, tribal, and local governments as well as private organizations to assist lawfully present noncitizens to enter nursing or allied health professions.
The Professional’s Access to Health Workforce Integration Act of 2022 (H.R. 8019, 117th Congress) would have provided grants to assist unemployed and underemployed skilled immigrants who were internationally trained health professionals to join the U.S. health workforce.
Using the premise of a national healthcare emergency, the statutory requirement for certain healthcare workers to obtain a healthcare worker certificate, even if educated in the U.S., could be suspended.

Unfortunately, the failure to create legislative fixes results in the inability of the U.S. to provide additional well-trained healthcare workers to meet the needs of the population. It is critical, though, to understand the current immigration maze to determine even the small corrections that could help secure critical staffing.

About the Author: Kathleen Campbell Walker is chair of the Immigration Practice Group at Dickinson Wright PLLC. She is also a national past president and general counsel of the American Immigration Lawyers Association (AILA), and an emeritus member of its Board of Governors.Internationally recognized as a leading authority in immigration law & policy and renowned for her extensive experience, Kathleen has testified before Congress six times. For her clients, Kathleen excels as a strategist in navigating complex immigration issues, offering solutions across diverse areas, including business immigration, compliance, audits, cross-border challenges, admissions, waivers, worksite enforcement, and consular processing. She can be reached at kwalker@dickinsonwright.com.

¹Benjamin H. Harris and Liam Marshall, “Immigration to address the caregiving shortfall,” Brookings.edu (April 2, 2024). https://www.brookings.edu/articles/immigration-to-address-the-caregiving-shortfall/
²U.S. Bureau of Labor Statistics, https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true.
³Jonathan Vespa, Lauren Medina, and David M. Armstrong, “Demographic Turning Points for the United States: Population Projections for 2020 to 2060,” U.S. Census Bureau (Issued March 2018 and revised February 2020) https://www.census.gov/content/dam/Census/library/publications/2020/demo/p25-1144.pdf.
⁴Leah Zallman, Karen E. Finnegan, et. al., “Care for America’s Elderly and Disabled People Relies on Immigrant Labor,” Volume 38, No. 6 Health Affairs: Community Care and High-Need Patients (June 2019).
⁵Stuart Anderson, “More than 1 Million Indians Waiting for Highly Skilled Immigrant Visas,” Forbes.com (April 14, 2024) https://www.forbes.com/sites/stuartanderson/2024/04/14/more-than-1-million-indians-waiting-for-high-skilled-immigrant-visas/.
⁶See https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2024/visa-bulletin-for-july-2024.html.
⁷See Nathaniel Weixel, “State Department freezes new visas for foreign nurses,” TheHill.com (June 17, 2024)
⁸See “Immigration Options and Professional Requirements for Foreign Health Care Workers,” Congressional Research Service (April 28, 2023) https://crsreports.congress.gov/product/pdf/R/R47528/2