Legal PerspectivesLegal Perspectivesof Global Migrationof Global Migration

5th International Nursing Conference5th International Nursing ConferenceHonolulu, HawaiiHonolulu, HawaiiJanuary 25, 2006January 25, 2006

By REUBEN S. SEGURITANBy REUBEN S. SEGURITAN450 Seventh Avenue, Suite 1400, New York, NY 10123450 Seventh Avenue, Suite 1400, New York, NY 10123

Phone 212 695 5281 Fax 212 563 2664Phone 212 695 5281 Fax 212 563 2664www.seguritan.comwww.seguritan.com

I.I. Specific conditions that shape Specific conditions that shape relevant Philippine lawsrelevant Philippine laws

A.A. Underemployment, low Underemployment, low wages, poor wages, poor working conditions and working conditions and political political instability push Filipinos to instability push Filipinos to migrate.migrate.

B.B. Filipino nurses have migrated Filipino nurses have migrated to more to more than 30 countries in order to than 30 countries in order to improve improve their earnings and the quality their earnings and the quality of life of of life of their families, and to achieve their families, and to achieve career career fulfillment and advancement.fulfillment and advancement.

C.C. The Philippine government The Philippine government encourages encourages the migration of nurses the migration of nurses to boost dollar to boost dollar remittances and ease remittances and ease unemployment.unemployment.

Remittances from overseas workers last year was Remittances from overseas workers last year was estimated at $13.5 billion estimated at $13.5 billion (Philippine Daily Inquirer, (Philippine Daily Inquirer, 1/9/2006).1/9/2006).

D.D. To meet the global demand for To meet the global demand for nurses, nurses, nursing schools have sprouted all nursing schools have sprouted all over over the Philippines and doctors are the Philippines and doctors are

migrating as nurses.migrating as nurses.

There are now over 400 nursing schools with 200 There are now over 400 nursing schools with 200 more applying for permits. more applying for permits. (Philippine Star, 6/18/2005)(Philippine Star, 6/18/2005)

E.E. The exodus of Filipino nurses The exodus of Filipino nurses and and doctors has caused the doctors has caused the closure and closure and understaffing of understaffing of hospitals in the hospitals in the Philippines Philippines and the utilization of poorly-and the utilization of poorly-trained and low quality nursingtrained and low quality nursing

graduates. graduates. (Philippine News, 11/23/2005; Philippine Center (Philippine News, 11/23/2005; Philippine Center for for Investigative Journalism, 2005 report)Investigative Journalism, 2005 report)

II. II. Global trends that shape Global trends that shape migration migration laws in destination laws in destination countriescountries

A.A. Nursing shortage is Nursing shortage is global.global.

77% of developed countries have 77% of developed countries have shortages.shortages. (Bulletin of the World Health (Bulletin of the World Health Organization)Organization)

Canada shortage will reach 78,000 by Canada shortage will reach 78,000 by 2011 and Australia , 40,000 by 2010.2011 and Australia , 40,000 by 2010. (International Council of Nurses Report)(International Council of Nurses Report)

50,000 needed annually in Europe, 50,000 needed annually in Europe, another 50,000 in the Middle East.another 50,000 in the Middle East.

30 states in the US have shortages 30 states in the US have shortages and by 2020, 44 states are expected and by 2020, 44 states are expected to have it.to have it. (Health Resources and Services (Health Resources and Services Administration)Administration)

Map 1: States with Shortages of FTE Registered Nurses in Map 1: States with Shortages of FTE Registered Nurses in 20002000

Map 2: States with Projected Shortages of FTE Registered Map 2: States with Projected Shortages of FTE Registered Nurses in 2020Nurses in 2020

Supply versus Demand Projections for FTE Registered Nurses by State - 2005Supply versus Demand Projections for FTE Registered Nurses by State - 2005

Supply versus Demand Projections for FTE Registered Nurses by State - 2020Supply versus Demand Projections for FTE Registered Nurses by State - 2020

B.B. Rising need for nurses is Rising need for nurses is brought brought about by increase in about by increase in managed managed healthcare (such as healthcare (such as Medicare and Medicare and Medicaid in the Medicaid in the US) and the aging of US) and the aging of the the general population in destination general population in destination countries.countries.

C.C. Destination Destination countries countries traditionally traditionally look to the look to the Philippines Philippines and otherand other developing developing countries for countries for nurses nurses and the pull and the pull factors are factors are high pay and high pay and career career advancement.advancement.

In 2004, 50.2 percent of In 2004, 50.2 percent of foreign-educated nurses in the foreign-educated nurses in the US were from the Philippines US were from the Philippines (Health Resources and Services (Health Resources and Services Administration)Administration)

Country of Origin for Foreign-Educated RNs in 2004

50.20%

20.20%

8.40%

21.20%

Philippines

Canada

UK

Other

D.D. Some countries and nursing groups Some countries and nursing groups have questioned the have questioned the

ethics behind the ethics behind the recruitment of foreign nurses.recruitment of foreign nurses.

The International Council of Nurses and the The International Council of Nurses and the American Nurses Association have pointed to American Nurses Association have pointed to ethical and competence issues that arise from ethical and competence issues that arise from the migration of nurses.the migration of nurses.

Canada, Norway, UK and Australia have policy Canada, Norway, UK and Australia have policy statements.statements.

Ireland recommends that employers recruit Ireland recommends that employers recruit from countries where government supports from countries where government supports the process.the process.

E.E. There have been instances of There have been instances of recruiters recruiters fraudulently obtaining fraudulently obtaining visas for nurses visas for nurses who who are are then forced to work under then forced to work under deplorable deplorable conditions for substandard conditions for substandard

wages in destination wages in destination countries.countries.((PowerPoint PowerPoint presentation at PNAA National presentation at PNAA National Convention, July 2005 at www.seguritan.com)Convention, July 2005 at www.seguritan.com)

III. Laws that Govern Philippine III. Laws that Govern Philippine Migration Migration

A.A. Private recruitment agencies Private recruitment agencies are are required to obtain a license.required to obtain a license. (OFW (OFW Guide)Guide)

Licensing requirements are:Licensing requirements are:

- 75% Filipino ownership- 75% Filipino ownership

- Capitalization of P2 M, at - Capitalization of P2 M, at the time of the the time of the application application

- Market capability to deploy - Market capability to deploy 50 to 100 workers 50 to 100 workers during the 1st year during the 1st year to “new virgin markets.” to “new virgin markets.”

- Escrow deposit of P1M and a - Escrow deposit of P1M and a surety bond of surety bond of P100,000 to P100,000 to guarantee contract compliance.guarantee contract compliance.

License expires in 4 years but may be License expires in 4 years but may be canceled anytime.canceled anytime.

More than a thousand agencies are currently More than a thousand agencies are currently operating. operating. (Manila Times)(Manila Times)

56 licenses were canceled from 2002 to 56 licenses were canceled from 2002 to 2004. 2004. (OFW Guide)(OFW Guide)

B.B. Nurses and employers must be Nurses and employers must be properly properly documented for documented for monitoring and monitoring and protection protection purposes.purposes.

Documentation of nurses is done through: Documentation of nurses is done through:

- Submission of - Submission of employment clearances, employment clearances, appropriate appropriate credentials, skills certificates and credentials, skills certificates and duly duly executed and verified employment executed and verified employment contracts.contracts.

- Attendance at a pre-- Attendance at a pre-departure orientation departure orientation seminar. seminar.

- Issuance of overseas employment - Issuance of overseas employment certificate certificate (OEC) as exit clearance (OEC) as exit clearance at airports which at airports which entitles them to travel entitles them to travel tax and terminal fee tax and terminal fee exemption. The OEC is exemption. The OEC is being replaced by the being replaced by the E-card which E-card which serves as an ID card.serves as an ID card.

- Membership with the Overseas - Membership with the Overseas Workers Workers Welfare Administration Welfare Administration (OWWA).(OWWA).

Documentation of employers is done through:Documentation of employers is done through:

- Submission of - Submission of accreditation documents which accreditation documents which are are verified by labor officers and verified by labor officers and authenticated by embassy officials at authenticated by embassy officials at

embassy posts. embassy posts.

- Only verified and - Only verified and authenticated manpower authenticated manpower requests are requests are sent to POEA for registration.sent to POEA for registration.

- Employment contract - Employment contract standards must be standards must be approved by the POEA approved by the POEA

Contract standards must comply with Contract standards must comply with Philippine and receiving country’s laws.Philippine and receiving country’s laws.

Contract disputes must be resolved through a Contract disputes must be resolved through a grievance machinery.grievance machinery.

- Conciliation services - Conciliation services are available on site in are available on site in embassies and embassies and consulates.consulates.

- Arbitration before the - Arbitration before the National Labor National Labor Relations Relations Commission in the Philippines if Commission in the Philippines if conciliation fails. conciliation fails.

IV.IV. Laws that Govern Migration to Laws that Govern Migration to Destination Countries in Destination Countries in

GeneralGeneral

A.A. To meet nursing shortages, To meet nursing shortages, immigration rules have been immigration rules have been

relaxed. relaxed. In some countries, In some countries, recruitment is done recruitment is done not just by private not just by private agencies but by the agencies but by the government government of destination countries as of destination countries as well. well.

UK engages in government-to-government UK engages in government-to-government agreements on foreign nurse recruitmentagreements on foreign nurse recruitment

Ministry of Health of Saudi Arabia also sources Ministry of Health of Saudi Arabia also sources its nurses from the Philippine Department of its nurses from the Philippine Department of Labor.Labor.

Japan has been negotiating with the Philippine Japan has been negotiating with the Philippine government on recruiting Philippine nurses. government on recruiting Philippine nurses. (Japan Today, 10/14/2005)(Japan Today, 10/14/2005)

Australia is poised to recruit more Philippine Australia is poised to recruit more Philippine nurses.nurses.

B.B. To protect the domestic nursing To protect the domestic nursing workforce, workforce, destination destination

countries set countries set caps and limits on the caps and limits on the stay of foreign stay of foreign nurse recruits.nurse recruits.

C.C. To ensure quality healthcare, To ensure quality healthcare, destination countries destination countries

requirerequire testing, testing, certification or registration. certification or registration.

All nurses in Ireland are registered with its All nurses in Ireland are registered with its nursing registration authority (nursing registration authority (An Bord An Bord AltranaisAltranais), which administers the supervised ), which administers the supervised clinical practice / orientation and assessment clinical practice / orientation and assessment of foreign nurses. of foreign nurses.

UK requires nurses compulsory English test UK requires nurses compulsory English test and a period of adaptation and orientation.and a period of adaptation and orientation.

Australia requires Philippine nurses to take Australia requires Philippine nurses to take bridging courses.bridging courses.

V.V. Laws that Govern United Laws that Govern United States States MigrationMigration

A.A. US laws on the immigration of US laws on the immigration of nurses nurses demonstrate the constant demonstrate the constant tension tension between liberalizing between liberalizing the entry of the entry of foreign nurses on foreign nurses on one hand and the one hand and the protection of protection of labor and the quality of labor and the quality of health care, health care, on the other, as on the other, as historically historically shown.shown.

Mass migration of Filipino nurses to the US Mass migration of Filipino nurses to the US started with the Exchange Visitor Program started with the Exchange Visitor Program (EVP) established in 1948. Nurses entered the (EVP) established in 1948. Nurses entered the US for the education and training program and US for the education and training program and were paid low monthly stipends. The EVP were paid low monthly stipends. The EVP eventually became an inexpensive vehicle for eventually became an inexpensive vehicle for the recruitment of nurses to fill the emerging the recruitment of nurses to fill the emerging nursing shortage.nursing shortage.

- 11,136 Filipino nurses - 11,136 Filipino nurses migrated from 1956 to migrated from 1956 to 1969 under the 1969 under the program. program. (Asperilla’s Dissertation, (Asperilla’s Dissertation, Columbia University, Columbia University, 1971)1971)

The 1965 Immigration Act abolished racial The 1965 Immigration Act abolished racial restrictions and allowed Filipinos and other restrictions and allowed Filipinos and other Asians to compete with other immigrants from Asians to compete with other immigrants from Europe and Africa. It allowed Filipino nurses to Europe and Africa. It allowed Filipino nurses to immigrate even without prearranged immigrate even without prearranged employment.employment.

In 1971, New York required foreign nurse In 1971, New York required foreign nurse graduates (FNGs) to pass the State Board graduates (FNGs) to pass the State Board Test Pool Examination (SBPTE) before being Test Pool Examination (SBPTE) before being granted the nursing license. In 1977, all states granted the nursing license. In 1977, all states required FNGs to take the SBPTE. required FNGs to take the SBPTE.

Most FNGs in the 70s came under the H-1 visa Most FNGs in the 70s came under the H-1 visa and were required to take the first available and were required to take the first available licensure exam upon arrival. If they failed, licensure exam upon arrival. If they failed, they fell out of status. Many were threatened they fell out of status. Many were threatened with deportation.with deportation.

In December 1977, these nurses got a reprieve In December 1977, these nurses got a reprieve when the INS allowed them 3 chances to pass when the INS allowed them 3 chances to pass the exam. But it instituted a policy requiring the exam. But it instituted a policy requiring future nurses to pass a pre-screening test to future nurses to pass a pre-screening test to be administered by the Commission on be administered by the Commission on Graduates of Foreign Nursing Schools (CGFNS). Graduates of Foreign Nursing Schools (CGFNS).

In 1987, the INS imposed a 5-year limit on H-1 In 1987, the INS imposed a 5-year limit on H-1 visa. Many nurses had been in the US for more visa. Many nurses had been in the US for more than 5 years so they fell out of status.than 5 years so they fell out of status.

In 1989, the Nursing Relief Act was passed to In 1989, the Nursing Relief Act was passed to legalize these nurses by granting instant legalize these nurses by granting instant green cards but it also imposed restrictions on green cards but it also imposed restrictions on nursing immigration. Nursing was no longer nursing immigration. Nursing was no longer considered a professional occupation by the considered a professional occupation by the 1990 Immigration Act and therefore did not 1990 Immigration Act and therefore did not qualify for the H-1 visa. A new visa category, qualify for the H-1 visa. A new visa category, the H-1A, however, was created specifically the H-1A, however, was created specifically for nurses but this was allowed to expire in for nurses but this was allowed to expire in 1995 even as a committee recommended its 1995 even as a committee recommended its extension. extension.

In 1996, the Visa Screen Certificate was In 1996, the Visa Screen Certificate was imposed but the INS rules did not take effect imposed but the INS rules did not take effect until December 1998. As a result, the until December 1998. As a result, the processing of green card application for processing of green card application for nurses and other health professionals was nurses and other health professionals was frozen for more than 2 years.frozen for more than 2 years.

In 1999, the H-1C visa program for nurses In 1999, the H-1C visa program for nurses migrating to work in so-called Health migrating to work in so-called Health Professional Shortage Areas was created. Few Professional Shortage Areas was created. Few medical facilities availed of this visa program medical facilities availed of this visa program because of its limited scope. This program was because of its limited scope. This program was allowed to expire in June 2005.allowed to expire in June 2005.

B.B. Current immigration rules Current immigration rules continue continue to be restrictive. to be restrictive.

Foreign nurses have no viable nonimmigrant visa Foreign nurses have no viable nonimmigrant visa option at present.option at present.

- The H-1B visa is available - The H-1B visa is available only to nurses who only to nurses who will fill highly will fill highly specialized or high administrative specialized or high administrative positions positions such as clinical nurse specialist, such as clinical nurse specialist, certified nurse anesthetist, certified nurse certified nurse anesthetist, certified nurse practitioner, and upper level nurse managers.practitioner, and upper level nurse managers.

- The USCIS investigates - The USCIS investigates whether the job to be whether the job to be filled is highly filled is highly specialized or a high specialized or a high administrative position. The filing fee for H-1B administrative position. The filing fee for H-1B

includes the payment of includes the payment of the anti-fraud fee of the anti-fraud fee of $500. $500.

Although nurses are on a pre-certified list of Although nurses are on a pre-certified list of shortage occupations when applying for a shortage occupations when applying for a green card, they are subject to slow, expensive green card, they are subject to slow, expensive and duplicative requirements and are subject and duplicative requirements and are subject to quota limitations.to quota limitations.

- 80% of the states - 80% of the states require CGFNS certificate require CGFNS certificate before taking the before taking the NCLEX exam.NCLEX exam.

- All foreign RNs - All foreign RNs including those educated, including those educated, licensed and licensed and trained in the US must obtain a trained in the US must obtain a Visa Visa Screen Certificate.Screen Certificate.

- - RN must RN must demonstrate that her demonstrate that her education, license and training are education, license and training are equivalent to those in the US and her equivalent to those in the US and her

competence in oral and competence in oral and written written English are English are appropriate for US appropriate for US practice. practice.

- Third preference under - Third preference under which nurses are which nurses are categorized started to categorized started to retrogress in January retrogress in January 2005. 2005.

- Latest bulletin shows - Latest bulletin shows retrogression to retrogression to April 22, 2001. April 22, 2001.

- The 50,000 visa - The 50,000 visa numbers given to numbers given to Schedule A Schedule A occupations in May 2005 occupations in May 2005 is only a is only a stop gap measure.stop gap measure.

IV.IV. Reform issues that deserve a Reform issues that deserve a closer look.closer look.

A.A. Should a temporary visa program for nurses be Should a temporary visa program for nurses be established in the US?established in the US?

B.B. Should immigrant visa numbers be increased?Should immigrant visa numbers be increased?

C.C. Is it time to abolish the CGFNS and Visa Screen Is it time to abolish the CGFNS and Visa Screen requirements?requirements?

D.D. Should Manila be a test site for the NCLEX?Should Manila be a test site for the NCLEX?

E.E. Should nurses be forced to serve in the Philippines Should nurses be forced to serve in the Philippines before migrating?before migrating?

The EndThe End