[106th Congress Public Law 95]
[From the U.S. Government Printing Office]


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[DOCID: f:publ095.106]


[[Page 1311]]

           NURSING RELIEF FOR DISADVANTAGED AREAS ACT OF 1999

[[Page 113 STAT. 1312]]

Public Law 106-95
106th Congress

                                 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. <<NOTE: Nov. 12, 1999 -  [H.R. 
                                 441]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Nursing Relief for 
Disadvantaged Areas Act of 1999.>>  assembled,

SECTION 1. <<NOTE: 8 USC 1101 note.>>  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

[[Page 113 STAT. 1313]]

        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 <<NOTE: Deadline.>>  
        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:

[[Page 113 STAT. 1314]]

            ``(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 <<NOTE: Expiration date.>>  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 <<NOTE: Applicability.>>  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) <<NOTE: Records. Public information.>>  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 <<NOTE: Procedures.>>  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) <<NOTE: Deadlines.>>  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

[[Page 113 STAT. 1315]]

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--

[[Page 113 STAT. 1316]]

            ``(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 <<NOTE: Deadline. Regulations. 8 USC 1182 
note.>>  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)).

[[Page 113 STAT. 1317]]

    (e) Limiting <<NOTE: Applicability. 8 USC 1182 note.>>  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. <<NOTE: 8 USC 1182 note.>>  RECOMMENDATIONS FOR ALTERNATIVE 
            REMEDY FOR NURSING SHORTAGE.

    Not <<NOTE: Deadline.>>  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).

SEC. 4. CERTIFICATION FOR CERTAIN ALIEN NURSES.

    (a) In General.--
            (1) Section 212 of the Immigration and Nationality Act (8 
        U.S.C. 1182) is amended by adding at the end the following new 
        subsection:

    ``(r) Subsection (a)(5)(C) shall not apply to an alien who seeks to 
enter the United States for the purpose of performing labor as a nurse 
who presents to the consular officer (or in the case of an adjustment of 
status, the Attorney General) a certified statement from the Commission 
on Graduates of Foreign Nursing Schools (or an equivalent independent 
credentialing organization approved for the certification of nurses 
under subsection (a)(5)(C) by the Attorney General in consultation with 
the Secretary of Health and Human Services) that--
            ``(1) the alien has a valid and unrestricted license as a 
        nurse in a State where the alien intends to be employed and such 
        State verifies that the foreign licenses of alien nurses are 
        authentic and unencumbered;
            ``(2) the alien has passed the National Council Licensure 
        Examination (NCLEX);
            ``(3) the alien is a graduate of a nursing program--
                    ``(A) in which the language of instruction was 
                English;
                    ``(B) located in a country--
                          ``(i) <<NOTE: Deadline.>>  designated by such 
                      commission not later than 30 days after the date 
                      of the enactment of the Nursing Relief for 
                      Disadvantaged Areas Act of 1999, based on such 
                      commission's assessment that the quality of 
                      nursing education in that country, and the English 
                      language proficiency of those who complete such 
                      programs in that country, justify the country's 
                      designation; or
                          ``(ii) designated on the basis of such an 
                      assessment by unanimous agreement of such 
                      commission and any

[[Page 113 STAT. 1318]]

                      equivalent credentialing organizations which have 
                      been approved under subsection (a)(5)(C) for the 
                      certification of nurses under this subsection; and
                    ``(C)(i) which was in operation on or before the 
                date of the enactment of the Nursing Relief for 
                Disadvantaged Areas Act of 1999; or
                    ``(ii) has been approved by unanimous agreement of 
                such commission and any equivalent credentialing 
                organizations which have been approved under subsection 
                (a)(5)(C) for the certification of nurses under this 
                subsection.''.
            (2) Section 212(a)(5)(C) of the Immigration and Nationality 
        Act (8 U.S.C. 1182(a)(5)(C)) is amended by striking ``Any alien 
        who seeks'' and inserting ``Subject to subsection (r), any alien 
        who seeks''.

    (b) Effective Date.--The <<NOTE: 8 USC 1182 note.>>  amendments made 
by subsection (a) shall take effect on the date of the enactment of this 
Act, without regard to whether or not final regulations to carry out 
such amendments have been promulgated by such date.

    (c) Issuance <<NOTE: Deadline. 8 USC 1182 note.>>  of Certified 
Statements.--The Commission on Graduates of Foreign Nursing Schools, or 
any approved equivalent independent credentialing organization, shall 
issue certified statements pursuant to the amendment under subsection 
(a) not more than 35 days after the receipt of a complete application 
for such a statement.

SEC. 5. NATIONAL INTEREST WAIVERS OF JOB OFFER REQUIREMENTS FOR ALIENS 
            WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES 
            OR ALIENS OF EXCEPTIONAL ABILITY.

    Section 203(b)(2)(B) of the Immigration and Nationality Act (8 
U.S.C. 1153(b)(2)(B)) is amended to read as follows:
                    ``(B) Waiver of job offer.--
                          ``(i) National interest waiver.--Subject to 
                      clause (ii), the Attorney General may, when the 
                      Attorney General deems it to be in the national 
                      interest, waive the requirements of subparagraph 
                      (A) that an alien's services in the sciences, 
                      arts, professions, or business be sought by an 
                      employer in the United States.
                          ``(ii) Physicians working in shortage areas or 
                      veterans facilities.--
                                    ``(I) In general.--The Attorney 
                                General shall grant a national interest 
                                waiver pursuant to clause (i) on behalf 
                                of any alien physician with respect to 
                                whom a petition for preference 
                                classification has been filed under 
                                subparagraph (A) if--
                                            ``(aa) the alien physician 
                                        agrees to work full time as a 
                                        physician in an area or areas 
                                        designated by the Secretary of 
                                        Health and Human Services as 
                                        having a shortage of health care 
                                        professionals or at a health 
                                        care facility under the 
                                        jurisdiction of the Secretary of 
                                        Veterans Affairs; and
                                            ``(bb) a Federal agency or a 
                                        department of public health in 
                                        any State has previously 
                                        determined that the alien 
                                        physician's work in

[[Page 113 STAT. 1319]]

                                        such an area or at such facility 
                                        was in the public interest.
                                    ``(II) Prohibition.--No permanent 
                                resident visa may be issued to an alien 
                                physician described in subclause (I) by 
                                the Secretary of State under section 
                                204(b), and the Attorney General may not 
                                adjust the status of such an alien 
                                physician from that of a nonimmigrant 
                                alien to that of a permanent resident 
                                alien under section 245, until such time 
                                as the alien has worked full time as a 
                                physician for an aggregate of five years 
                                (not including the time served in the 
                                status of an alien described in section 
                                101(a)(15)(J)), in an area or areas 
                                designated by the Secretary of Health 
                                and Human Services as having a shortage 
                                of health care professionals or at a 
                                health care facility under the 
                                jurisdiction of the Secretary of 
                                Veterans Affairs.
                                    ``(III) Statutory construction.--
                                Nothing in this subparagraph may be 
                                construed to prevent the filing of a 
                                petition with the Attorney General for 
                                classification under section 204(a), or 
                                the filing of an application for 
                                adjustment of status under section 245, 
                                by an alien physician described in 
                                subclause (I) prior to the date by which 
                                such alien physician has completed the 
                                service described in subclause (II).
                                    ``(IV) Effective date.--The 
                                requirements of this subsection do not 
                                affect waivers on behalf of alien 
                                physicians approved under section 
                                203(b)(2)(B) before the enactment date 
                                of this subsection. In the case of a 
                                physician for whom an application for a 
                                waiver was filed under section 
                                203(b)(2)(B) prior to November 1, 1998, 
                                the Attorney General shall grant a 
                                national interest waiver pursuant to 
                                section 203(b)(2)(B) except that the 
                                alien is required to have worked full 
                                time as a physician for an aggregate of 
                                three years (not including time served 
                                in the status of an alien described in 
                                section 101(a)(15)(J)) before a visa can 
                                be issued to the alien under section 
                                204(b) or the status of the alien is 
                                adjusted to permanent resident under 
                                section 245.''.

SEC. 6. FURTHER CLARIFICATION OF TREATMENT OF CERTAIN INTERNATIONAL 
            ACCOUNTING FIRMS.

    Section 206(a) of the Immigration Act of 1990 (8 U.S.C. 1101 note) 
is amended to read as follows:
    ``(a) Clarification of Treatment of Certain International Accounting 
and Management Consulting Firms.--In applying sections 101(a)(15)(L) and 
203(b)(1)(C) of the Immigration and Nationality Act, and for no other 
purpose, in the case of a partnership that is organized in the United 
States to provide accounting or management consulting services and that 
markets its accounting or management consulting services under an 
internationally recognized name under an agreement with a worldwide 
coordinating organization that is collectively owned and controlled by 
the member accounting and management consulting firms or by the elected

[[Page 113 STAT. 1320]]

members (partners, shareholders, members, employees) thereof, an entity 
that is organized outside the United States to provide accounting or 
management consulting services shall be considered to be an affiliate of 
the United States accounting or management consulting partnership if it 
markets its accounting or management consulting services under the same 
internationally recognized name directly or indirectly under an 
agreement with the same worldwide coordinating organization of which the 
United States partnership is also a member. Those partnerships organized 
within the United States and entities organized outside the United 
States which are considered affiliates under this subsection shall 
continue to be considered affiliates to the extent such firms enter into 
a plan of association with a successor worldwide coordinating 
organization, which need not be collectively owned and controlled.''.

    Approved November 12, 1999.

LEGISLATIVE HISTORY--H.R. 441:
---------------------------------------------------------------------------

HOUSE REPORTS: No. 106-135 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 145 (1999):
            May 24, considered and passed House.
            Oct. 22, considered and passed Senate, amended.
            Nov. 2, House concurred in Senate amendment.

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