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10/07/2002 HEALTHCARE IMMIGRATION ALERT:
THE DEPARTMENT OF LABOR IMPOSES PENALTIES AGAINST A HEALTHCARE FACILITY:
USDOL v. Beverly Enterprises, Inc.
Seven years after the expiration of the H-1A visa program for foreign
nurses, the Department of Labor issued a decision imposing severe penalties
against Beverly Enterprises for violating the now-defunct H-1A program. The
Department of Labor ruled that Beverly Enterprises violated the regulations
of the H-1A program by employing hundreds of foreign nurses as nursing
assistants, rather than registered nurses, and paying the nurses wages far
less than the wage required by law. Therefore, the Department of Labor
assessed penalties against Beverly Enterprises consisting of more than $3
million in back pay for the under-paid nurses and $1 million in civil
penalties.
Congress created the H-1A visa under the Nursing Relief Act of 1989 as a
quick visa option for foreign registered nurses to come to the U.S. for a
temporary period of time to alleviate the nursing shortage. While the H-1A
visa program expired on September 1, 1995, any facility that hired an H-1A
foreign nurse before the deadline had to comply with the terms of the
program throughout the duration of the foreign nurses' visa. One of the
requirements of the H-1A program was that a healthcare facility had to pay
the foreign nurses the greater of the actual wage rate the facility paid its
nurses or the prevailing wage rate for nurses in the geographic area. The
prevailing wage must come from a published wage survey that meets the
Department of Labor criteria.
Beverly Enterprises and its related facilities reportedly hired 418 Filipino
nurses during a two year period under the H-1A program. While the nurses
were brought to the U.S. as registered nurses, Beverly Enterprises employed
them in lower positions such as nursing assistants until the nurse obtained
the state license. Beverly Enterprises had an employment agreement with the
nurses stating that the nurse would be paid less than the prevailing wage
until she received her state license.
In January 1995, the Department of Labor received a telegram from a State
Department official in the Philippines alleging that Beverly Enterprises was
abusing the H-1A program. The telegram estimated that fifty percent of the
H-1A visa recipients ultimately did not work as registered nurses in the
United States but instead worked as nursing assistants at a very low wage.
While the H-1A program no longer exists, the Department of Labor decision is
important for health care facilities that hire foreign nurses on other
temporary visas or permanent visas. Both the H-1C and H-1b visa
classifications contain a wage attestation like the expired H-1A visa that
requires the facility to pay the higher of the actual wage or the prevailing
wage. As for permanent visas, the Department of Labor has predetermined that
there is a shortage of registered nurses; therefore, registered nurses are
not required to file an application with a wage attestation with the
Department of Labor. Instead, the registered nurse files the application for
a permanent visa directly with the Immigration and Naturalization Service.
However, the INS Regulations require the employer to certify that it will
pay the registered nurse the required wage at the time the registered nurse
becomes a permanent resident.
Healthcare facilities can comply with the Department of Labor and INS
regulations pertaining to wages in the following manner:
" Facilities can recruit foreign nurses who already have the state license,
or will obtain the state license before entering the U.S. As such,
healthcare facilities will not have to contend with the issue of employing a
registered nurse in a lower level position while she waits to obtain the
state license.
" If a facility hires a foreign nurse who does not yet have the state
license the facility can employ the foreign nurse in a lower level position
while she waits to obtain the state license as long as the facility pays the
nurse the higher of the actual wage it pays its registered nurses or the
prevailing wage for registered nurses in the geographic area. The facility
should not pay the wage for a lower level position.
" If the registered nurse fails to pass the state license within a
reasonable amount of time, the facility can terminate the nurse and notify
the INS. The facility is not required, by the virtue of an immigration
filing, to employ the foreign nurse for a specific amount of time.
Hammond & Associates, LLC insists on strict compliance with all Department
of Labor and INS regulations. As such, our firm uses only those surveys that
meet the Department of Labor guidelines for acceptable wage surveys. If a
facility offers a foreign nurse a wage that is below the prevailing wage,
Hammond & Associates, LLC advises the company that it cannot proceed with
the application unless the wage is increased. Furthermore, our firm advises
healthcare facilities to pay a registered nurse the prevailing wage for a
registered nurse even if she is working temporarily in a lower level
position while waiting for her state license.
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