Legal Perspectives
of Global Migration
5th International Nursing Conference
Honolulu, Hawaii
January 25, 2006
By REUBEN S. SEGURITAN
450 Seventh Avenue, Suite 1400, New York, NY 10123
Phone 212 695 5281
Fax 212 563 2664
www.seguritan.com
I.
Specific conditions that shape
relevant Philippine laws
A.
Underemployment, low wages, poor
working conditions and political
instability push Filipinos to migrate.
B.
Filipino nurses have migrated to more
than 30 countries in order to improve
their earnings and the quality of life of
their families, and to achieve career
fulfillment and advancement.
C.
The Philippine government encourages
the migration of nurses to boost dollar
remittances and ease unemployment.

D.
Remittances from overseas workers last year was
estimated at $13.5 billion (Philippine Daily Inquirer, 1/9/2006).
To meet the global demand for nurses,
nursing schools have sprouted all over
the Philippines and doctors are
migrating as nurses.

There are now over 400 nursing schools with 200
more applying for permits. (Philippine Star, 6/18/2005)
E.
The exodus of Filipino nurses and
doctors has caused the closure and
understaffing of hospitals in the
Philippines and the utilization of poorlytrained and low quality nursing
graduates. (Philippine News, 11/23/2005; Philippine Center for
Investigative Journalism, 2005 report)
II. Global trends that shape migration
laws in destination countries
A.
Nursing shortage is global.

77% of developed countries have
shortages. (Bulletin of the World Health Organization)

Canada shortage will reach 78,000 by
2011 and Australia , 40,000 by 2010.
(International Council of Nurses Report)


50,000 needed annually in Europe,
another 50,000 in the Middle East.
30 states in the US have shortages and
by 2020, 44 states are expected to have
it. (Health Resources and Services Administration)
Map 1: States with Shortages of FTE Registered Nurses in 2000
Map 2: States with Projected Shortages of FTE Registered Nurses in
2020
Supply versus Demand Projections for FTE Registered Nurses by State - 2005
Supply versus Demand Projections for FTE Registered Nurses by State - 2020
B.
Rising need for nurses is brought
about by increase in managed
healthcare (such as Medicare and
Medicaid in the US) and the aging of
the general population in destination
countries.
C.
Country of Origin for ForeignDestination countries
Educated RNs in 2004
traditionally look to the
21.20%
Philippines and other
developing countries for
50.20%
8.40%
nurses and the pull
20.20%
factors are high pay and
Philippines
career advancement.
Canada

In 2004, 50.2 percent of foreigneducated nurses in the US were
from the Philippines (Health Resources
and Services Administration)
UK
Other
D.
Some countries and nursing groups
have questioned the ethics
behind the
recruitment of foreign
nurses.

The International Council of Nurses and the
American Nurses Association have pointed to ethical
and competence issues that arise from the migration
of nurses.

Canada, Norway, UK and Australia have policy
statements.

Ireland recommends that employers recruit from
countries where government supports the process.
E.
There have been instances of recruiters
fraudulently obtaining visas for nurses
who are then forced to work
under
deplorable conditions for
substandard
wages in destination
countries.(PowerPoint
presentation at PNAA National Convention,
July 2005 at www.seguritan.com)
III.
Laws that Govern Philippine
Migration
A.
Private recruitment agencies are
required to obtain a license. (OFW Guide)

Licensing requirements are:
- 75% Filipino ownership
- Capitalization of P2 M, at the time of the
application
- Market capability to deploy 50 to 100 workers
during the 1st year to “new virgin markets.”
- Escrow deposit of P1M and a surety bond of
P100,000 to guarantee contract compliance.

License expires in 4 years but may be canceled
anytime.

More than a thousand agencies are currently
operating. (Manila Times)

56 licenses were canceled from 2002 to 2004.
Guide)
(OFW
B. Nurses and employers must be properly
documented for monitoring and
protection purposes.

Documentation of nurses is done through:
- Submission of employment clearances,
appropriate credentials, skills certificates and
duly executed and verified employment
contracts.
- Attendance at a pre-departure orientation
seminar.
- Issuance of overseas employment certificate
(OEC) as exit clearance at airports which
entitles them to travel tax and terminal fee
exemption. The OEC is being replaced by the
E-card which serves as an ID card.
- Membership with the Overseas Workers
Welfare Administration (OWWA).

Documentation of employers is done through:
- Submission of accreditation documents which
are verified by labor officers and
authenticated by embassy officials at
embassy posts.
- Only verified and authenticated manpower
requests are sent to POEA for registration.
- Employment contract standards must be
approved by the POEA

Contract standards must comply with Philippine and
receiving country’s laws.

Contract disputes must be resolved through a
grievance machinery.
- Conciliation services are available on site in
embassies and consulates.
- Arbitration before the National Labor
Relations Commission in the Philippines if
conciliation fails.
IV. Laws that Govern Migration to
Destination Countries in General
A.
To meet nursing shortages,
immigration rules have been relaxed.
In some countries, recruitment is done
not just by private agencies but by the
government of destination countries as
well.

UK engages in government-to-government
agreements on foreign nurse recruitment

Ministry of Health of Saudi Arabia also sources its
nurses from the Philippine Department of Labor.

Japan has been negotiating with the Philippine
government on recruiting Philippine nurses. (Japan
Today, 10/14/2005)

Australia is poised to recruit more Philippine nurses.
B.
To protect the domestic nursing
workforce, destination countries set
caps and limits on the stay of foreign
nurse recruits.
C.
To ensure quality healthcare,
destination countries require
testing, certification or registration.

All nurses in Ireland are registered with its nursing
registration authority (An Bord Altranais), which
administers the supervised clinical practice /
orientation and assessment of foreign nurses.

UK requires nurses compulsory English test and a
period of adaptation and orientation.

Australia requires Philippine nurses to take bridging
courses.
V.
Laws that Govern United States
Migration
A.
US laws on the immigration of nurses
demonstrate the constant tension
between liberalizing the entry of
foreign nurses on one hand and the
protection of labor and the quality of
health care, on the other, as
historically shown.

Mass migration of Filipino nurses to the US started
with the Exchange Visitor Program (EVP) established
in 1948. Nurses entered the US for the education
and training program and were paid low monthly
stipends. The EVP eventually became an inexpensive
vehicle for the recruitment of nurses to fill the
emerging nursing shortage.
- 11,136 Filipino nurses migrated from 1956 to
1969 under the program. (Asperilla’s Dissertation,
Columbia University, 1971)

The 1965 Immigration Act abolished racial
restrictions and allowed Filipinos and other Asians to
compete with other immigrants from Europe and
Africa. It allowed Filipino nurses to immigrate even
without prearranged employment.

In 1971, New York required foreign nurse graduates
(FNGs) to pass the State Board Test Pool
Examination (SBPTE) before being granted the
nursing license. In 1977, all states required FNGs to
take the SBPTE.

Most FNGs in the 70s came under the H-1 visa and
were required to take the first available licensure
exam upon arrival. If they failed, they fell out of
status. Many were threatened with deportation.

In December 1977, these nurses got a reprieve when
the INS allowed them 3 chances to pass the exam.
But it instituted a policy requiring future nurses to
pass a pre-screening test to be administered by the
Commission on Graduates of Foreign Nursing Schools
(CGFNS).

In 1987, the INS imposed a 5-year limit on H-1 visa.
Many nurses had been in the US for more than 5
years so they fell out of status.

In 1989, the Nursing Relief Act was passed to
legalize these nurses by granting instant green cards
but it also imposed restrictions on nursing
immigration. Nursing was no longer considered a
professional occupation by the 1990 Immigration Act
and therefore did not qualify for the H-1 visa. A new
visa category, the H-1A, however, was created
specifically for nurses but this was allowed to expire
in 1995 even as a committee recommended its
extension.

In 1996, the Visa Screen Certificate was imposed but
the INS rules did not take effect until December
1998. As a result, the processing of green card
application for nurses and other health professionals
was frozen for more than 2 years.

In 1999, the H-1C visa program for nurses migrating
to work in so-called Health Professional Shortage
Areas was created. Few medical facilities availed of
this visa program because of its limited scope. This
program was allowed to expire in June 2005.
B.
Current immigration rules continue
to be restrictive.

Foreign nurses have no viable nonimmigrant visa
option at present.
- The H-1B visa is available only to nurses who
will fill highly specialized or high administrative
positions such as clinical nurse specialist,
certified nurse anesthetist, certified nurse
practitioner, and upper level nurse managers.
- The USCIS investigates whether the job to be
filled is highly specialized or a high
administrative position. The filing fee for H-1B
includes the payment of the anti-fraud fee of
$500.

Although nurses are on a pre-certified list of shortage
occupations when applying for a green card, they are
subject to slow, expensive and duplicative
requirements and are subject to quota limitations.
- 80% of the states require CGFNS certificate
before taking the NCLEX exam.
- All foreign RNs including those educated,
licensed and trained in the US must obtain a
Visa Screen Certificate.
- RN must demonstrate that her
education, license and training are
equivalent to those in the US and her
competence in oral and written
English are appropriate for US
practice.
- Third preference under which nurses are
categorized started to retrogress in January
2005.
- Latest bulletin shows retrogression to
April 22, 2001.
- The 50,000 visa numbers given to
Schedule A occupations in May 2005
is only a stop gap measure.
IV.
Reform issues that deserve a closer
look.
A. Should a temporary visa program for nurses be established
in the US?
B. Should immigrant visa numbers be increased?
C. Is it time to abolish the CGFNS and Visa Screen
requirements?
D. Should Manila be a test site for the NCLEX?
E. Should nurses be forced to serve in the Philippines before
migrating?
The End