Immigration proposal for pandemic doctors does not require them to treat COVID-19 patients

On April 30, Sens. David Perdue (R-Ga.), Dick Durbin (D-Ill.), Todd Young (R-Ind.) and Chris Coons (D-Del.) announced their Healthcare Workforce Resilience Act (HWRA), which they claim will quickly address a shortage of doctors and nurses that poses a significant risk to our ability to respond effectively to the COVID-19 crisis. 

HWRA would recapture 40,000 unused employment-based worker visas: 15,000 for doctors and 25,000 for nurses. It also would recapture unused visas for their families.

Unused visas are available. Congress has set hard numerical caps for most types of immigrant visas since 1921. As of July 2019, congress had allocated 25,294,990 immigrant visas and only 20,567,754 of them had been used.

But why are the senators sponsoring a bill to give these visas to doctors and nurses without requiring them to spend even a single day caring for hospitalized COVID-19 patients?

Experts predict that up to 60 percent of our population of 300 million people will become infected with COVID-19 and approximately 20 percent of them will need hospitalization. This means that 36 million Americans may need hospitalization for COVID-19 treatment.

Key HWRA provisions

• Recapture unused employment-based immigrant visas from previous fiscal years for doctors, nurses, and their families;
• Exempt these visas from country caps;
• Require employers to attest that immigrants from overseas who receive these visas will not displace an American worker;
• Require the Department of Homeland Security and the State Department to expedite the processing of the recaptured visas; and
• Limit the filing period for recaptured visas to 90 days following the termination of the President’s COVID-19 emergency declaration.

Deadline for participating in the program

The recaptured visas would be available to any doctor or nurse who has already filed an immigrant visa petition, and they would continue to be available for new visa petitions until 90 days after the termination of the president’s declaration of a COVID–19 national emergency.

This means that doctors and nurses who are already providing health care services in the United States as nonimmigrant visitors could become lawful permanent residents (LPRs). This includes more than 10,000 doctors who are here on specialty occupation H-1B visas who are only allowed to work at the facility that sponsored them for their visas.  

According to Senator Durbin, “It is unacceptable that thousands of doctors currently working in the U.S. on temporary visas are stuck in the green card backlog, putting their futures in jeopardy and limiting their ability to contribute to the fight against COVID-19.”

But once they have been given LPR status, they would be free to remain in the jobs they already have or find more attractive work elsewhere. HWRA would not require them to provide care for COVID-19 patients.

Exemption from country caps

The United States has a population of almost one million lawfully present foreign workers and accompanying family members who have approved visa petitions for LPR status and are just waiting for a visa to become available. And this is in addition to the foreign nationals with an approved immigrant worker visa petition who are waiting in their home countries.

This backlog was caused by 8 USC §1152(a)(2), which imposes an annual 7 percent per-country limit on immigrant visas and 8 USC §1151(d)(1)(A), which imposes a 140,000 per-year world-wide limit on employment-based immigrant visas.

HWRA would exempt the doctors and nurses and their families from the 7 percent per-country cap; the world-wide limit doesn’t apply to recaptured visas — it only applies to newly issued visas. 

The backlog on employment-based visas, however, is only a problem for two countries, India and China. The average wait for an employment-based immigrant visa for nationals from India is eight years, and it is five years for Chinese nationals. But the average wait for the rest of the world is only one year.

Congressmen have been trying to eliminate the per-country cap for a long time

The Fairness for High-Skilled Immigrants Act (H.R. 1044; S. 386, as amended), also would eliminate the 7 percent per-country cap. But it would not increase the world-wide annual limit on employment-based immigrant visas, and unlike HWRA, it does not rely on recaptured visas.  Consequently, it would convert the per-country system into a first-come, first served system.  This would reduce the waits for Indian and Chinese nationals at the expense of longer waits for nationals from all of the other countries.

The Fairness for High-Skilled Immigrants Act, however, is not likely to be enacted. It has been sponsored unsuccessfully in different versions since 2011.

Apparently, the senators think a bill to eliminate the 7 percent cap is more likely to be enacted now if it is re-packaged as a COVID-19 measure — but they should have to do more than just call it a COVID-19 bill to be successful. At a minimum it should require treatment of actual COVID-19 patients.

A better alternative

We need doctors and nurses to care for hospitalized COVID-19 patients. The simplest solution would be to create a national emergency nonimmigrant visa category that would admit foreign doctors and nurses without numerical limits to work at American hospitals taking care of COVID-19 patients.

And this program also could be made available to doctors and nurses who are here on a restricted temporary visa.

The incentive could be LPR status for the ones who provide hospital care for a year, or some other significant period of time. We have a similar program that offers naturalization to aliens who serve in our armed forces during periods of military hostilities.

This would provide direct, immediate assistance for our hospitals that are caring for COVID -19 patients.

HWRA would do neither.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.