In an effort to combat the COVID-19 pandemic and tap into available healthcare workers from around the world, on May 5, 2020 a group of six senators introduced bipartisan legislation which seeks to enhance the healthcare workforce by recapturing 40,000 unused immigrant visas (“green cards”) for doctors (15,000) and nurses (25,000). Shortly afterwards, a companion bill was introduced in the House of Representatives, an encouraging sign that both houses of Congress are making efforts to address the nationwide shortage of physicians and nurses.

The Healthcare Workforce Resilience Act (S.3599 / H.R. 6788) offers a temporary reprieve to green card backlogs for physicians currently waiting in the queue to become lawful permanent residents of the United States. This proposed legislation recaptures unused immigrant visas from previous fiscal years for doctors, nurses, and their families, and exempts these visas from the ordinary per-country caps on available visas. Physicians and nurses who are the beneficiaries of approved I-140 immigrant visa petitions and who are simply waiting for an immigrant visa to become available would be able to file for one of these 40,000 recaptured visas for up to 90 days following the termination of the President’s COVID-19 emergency declaration.

This legislation has been endorsed by, among others, the U.S. Chamber of Commerce, the American Hospital Association, the American Organization for Nursing Leadership, Physicians for American Healthcare Access, the American Immigration Lawyers Association, and the National Immigration Forum. It has also received bipartisan support from members of Congress.

Under this bill, U.S. Citizenship and Immigration Services (USCIS) would “recapture” up to 25,000 unused immigrant visas from prior years’ allocations for nurses, and 15,000 immigrant visas for physicians. These additional visas would be issued in order of priority date. To expedite processing, USCIS would be required to utilize premium processing procedures to adjudicate qualifying applications quickly, without the imposition of an additional premium processing fee.

This proposed legislation would be of particular benefit to Indian and Chinese nationals, who are currently subject to lengthy backlogs in the employment-based green card categories. Physicians and nurses from these countries would therefore be able to avoid years-long (and in some cases decades-long) waits for green card availability.

There are several important questions about this proposed legislation still to be resolved: for instance, how quickly the 40,000 “recaptured” visas would become available to foreign healthcare workers, whether the 40,000 “recaptured” visas would be sufficient to satisfy the current demand and clear the backlog of foreign healthcare workers currently in the queue, and how broadly the occupations of “physician” and “nurse” will be defined or whether there will be any restrictions on the types of physicians/nurses eligible.

The text of this legislation would not appear to expressly limit this benefit to those physicians and nurses who are treating COVID patients; rather, it would appear that these additional visas will be made available to all physicians and nurses regardless of who they will be treating, though the scope may be further narrowed if this bill is passed and implemented.

Notwithstanding these lingering questions, this legislation has significant potential to address the growing shortage of doctors and nurses in the United States over the past decade, which has worsened during the COVID-19 crisis, while also providing a tangible and significant benefit to many foreign physicians who would otherwise be facing a wait of several years before obtaining permanent resident status in the United States.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.

The immigration attorneys at Harris Beach are closely monitoring the progress of this proposed legislation and will provide updates as they are made available. Please contact a member of the Harris Beach immigration practice group if you have questions about how this legislation may affect you or your employees.

This blog post does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.