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Retrogression Causing Angst and Hope

Brought to you by Staffing Industry Analysts, Inc.

Robyn Hessinger

November 2007

Event

All discussions about international recruiting at our 2007 Healthcare Staffing Summit led to one word – retrogression.

Amidst a string of failed immigration reform proposals in Congress, there is a faint glimmer of hope hanging on the safe passage of one amendment that may give healthcare staffing firms a boost with regard to bringing foreign healthcare professionals to the United States. There is one remaining piece of legislation under consideration this week that could ease some of the pain by releasing 61,000 unused green cards.

While international recruiting is not a silver bullet to solve the problem of shortage of nurses in the U.S., it is one of the many ways healthcare staffing firms hope to increase the much needed workforce.

Background

Considering the healthcare industry's reliance on immigrant workers, you could say the industry is teetering on the brink. With the visas these employees need to work in the United States severely backlogged, capped, and over-extended, the whole program to bring skilled healthcare workers to this country is in what is called "retrogression."

Simply put, retrogression means that the demand for visas that allow foreign workers to work legally in the United Sates exceeds the supply granted by Congress, and the queue for those who have already applied is severely backlogged. Applications from 2002 are only now being considered.

Applicants - and the staffing companies that hire them - now have to wait until more visas are available.

There is an amendment pending, introduced by Senators Schumer and Hutchinson to recapture 61,000 unused green cards that were lost in prior years, which would give them to registered nurses, physical therapists and their families.

Senator Durbin added his own amendment to the Schumer/Hutchinson amendment which would charge employers $1,500 for each nurse or physical therapist that receives one of the 61,000 green cards; the monies would go into a fund to train American nurses and therapists. The amendment(s) is part of the Labor Health and Human Services Appropriation Bill (LHHS).

"With retrogression, the numbers are up in the hundreds of thousands, so maybe 61,000 is not exactly going to solve the problem, but it might reduce some waits a little bit," said immigration lawyer Carl Shusterman.

The challenge, however, is that no immigration reform bills have been passed this year. And the climate is not necessarily 'immigration friendly.'

On Oct. 24, the Dream Act--immigration legislation aimed to give some children of illegal immigrants a path to American citizenship--failed a key Senate vote. It was just another in a series of failed immigration reforms, including efforts to increase the number of work visas available for foreign professionals and to reduce the backlog, or wait-time, for those awaiting green cards or permanent residency within the United States.

"The atmosphere is not wonderful up there on Capitol Hill as far as immigration right now," said Shusterman, a regular visitor to Washington D.C. "And the Democrats are kind of afraid to take on the Republicans because they have so many [other] good issues, like the war, and healthcare. Immigration is just not one of them, according to the polls. So they are kind of soft-pedaling. They tried the Dream Act, because that was the most popular. But they were defeated even on that."

So the only amendment that really has a chance is the recapturing of green cards for therapists and nurses, according to Shusterman, but even that is hanging in the air right now. "I just think that the mood is so poisoned this year with that major immigration bill that was going to try to do all things for all people, that now even the most reasonable piece of legislation if it's in the immigration field can't get passed."

Karen Fleming, VP at staffing firm HCCA International, is watching this week's activity very closely as her company specializes in international nurse recruitment. "Retrogression hit a year ago and only a very small number of international nurses have been able to come into the U.S. in the last year."

Staffing companies and immigration attorneys from the Coalition to Improve Healthcare Staffing hired two lobbyists in June, according to Fleming, after comprehensive immigration reform was shot down. "We are trying to get a temporary fix through the Labor Health and Human Services bill. Our objective is to get the short-term fix approved before Memorial Day. Otherwise we probably will not see another nurse being allowed in here until third or fourth quarter of 2009."

The legislative session ends mid-November. And this amendment is in the Senate bill only, and not the House version of the legislation. A House-Senate Conference Committee has just begun, so first they have to convince the House to accept the amendment. This could be the deciding week for the amendment.

If the amendment passes, staffing companies that are providing allied health or nursing professionals could get a boost from the 61,000 visas. But for regular skilled and bachelor degree professionals, there is still a five year wait right now.

There are still applicants that might not be caught in the retrogression wait, but they are waiting for the FBI to check names – approximately 360,000 - to get their Green Card or citizenship. Add to this, the national visa center has stopped processing applications and there is a backlog at the consulate.

Staffing companies that are providing advanced degree professionals, like doctors, are in pretty good shape because retrogression doesn't affect EB2 (Employment Based Second Preference) visas unless the applicant is from one of a few different countries, such as China or India. But for most countries, there is no retrogression on that category.

Chris Musillo, a partner with Hammond Law Firm based in Cincinnati OH, is also watching the healthcare immigration legislation very closely and regularly updates a healthcare immigration advocacy blog. "There are a lot of people in Congress that don't want to see anything related to immigration," Musillo said, "But our amendment did make it to the Conference Committee."

Aside from the immigration-related challenges, the bill faces other changes. "The President has hinted that he will veto the LHHS bill because it is giving away to much money," Musillo said. "It is not specifically about the nurses – that is like a pimple on an elephant. It is about the larger issue of billions of dollars."

Musillo sees several scenarios for the amendment (and its parent LHHS bill) if it passes the Conference Committee this week: The LHHS bill could be offered as a standalone bill; it could be bundled with something like a defense bill (which the President would likely approve); or a massive omnibus bill that could include the LHHS bill and a dozen or so other appropriations bills.

Musillo said that while immigration may not be a popular topic, healthcare for Americans – and the adequate supply of healthcare practitioners - is, so the LHHS bill has a better chance.
Despite the backlog throughout the system, both Musillo and Shusterman advised staffing companies to continue their international recruiting efforts.

"This is the time to get those petitions filed," Shusterman said. "Whether this bill passes in November, December or sometime next year, their place in line – what we call the priority date – will be ahead of everybody who waits for the bill to pass. Once the bill passes, everybody and their uncle will be filing these things."

Fleming said HCCA continues to recruit, because retrogression will eventually be over. "Countries have been through retrogression with us before, so the drop off in applicants has been much less."

And, she cautions that once more visas are released, they will go very quickly. "If they last us a year, we will be very lucky."

Staffing Industry Analysts’ Perspective

We do not anticipate a resolution anytime soon to international recruiting challenges However, there is a slim chance the currently proposed amendment will pass. Even if it fails, it could potentially be tried again in some other form after Congress resumes. Healthcare staffing firms are encouraged to consider at least getting a place in line with regard to H1-B visas to ensure participation. Staffing companies can also help by joining in lobbying efforts to move legislation forward, including contacting legislative representatives or joining the Coalition to Improve Healthcare Staffing (http://www.ctihs.org/).

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