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I. Specific conditions that shape relevant Philippine laws

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.

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I. Specific conditions that shape relevant Philippine laws

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  1. Legal Perspectivesof Global Migration5th International Nursing ConferenceHonolulu, HawaiiJanuary 25, 2006 By REUBEN S. SEGURITAN450 Seventh Avenue, Suite 1400, New York, NY 10123Phone 212 695 5281 Fax 212 563 2664www.seguritan.com

  2. 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.

  3. C. The Philippine government encourages the migration of nurses to boost dollar remittances and ease unemployment. • Remittances from overseas workers last year was estimated at $13.5 billion (Philippine Daily Inquirer, 1/9/2006). D. 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)

  4. E. The exodus of Filipino nurses and doctors has caused the closure and understaffing of hospitals in the Philippines and the utilization of poorly- trained and low quality nursing graduates. (Philippine News, 11/23/2005; Philippine Center for Investigative Journalism, 2005 report)

  5. 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)

  6. Map 1: States with Shortages of FTE Registered Nurses in 2000

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

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

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

  10. 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.

  11. C. Destination countries traditionally look to the Philippines and other developing countries for nurses and the pull factors are high pay and career advancement. • In 2004, 50.2 percent of foreign-educated nurses in the US were from the Philippines (Health Resources and Services Administration)

  12. 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.

  13. 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)

  14. 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.

  15. 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. (OFW Guide)

  16. 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.

  17. - 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).

  18. 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

  19. 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.

  20. 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.

  21. 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.

  22. B.To protect the domestic nursing workforce, destination countries set caps and limits on the stay of foreign nurse recruits.

  23. C. To ensure quality healthcare, destination countries require testing, certification or registration.

  24. 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.

  25. 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.

  26. 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)

  27. 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.

  28. 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).

  29. 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.

  30. 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.

  31. 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.

  32. 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.

  33. 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.

  34. - 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.

  35. - 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.

  36. 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?

  37. The End

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