OCTOBER 2025 | 19 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. most valuable employees for lack of valid work authorization, especially in areas experiencing health care provider shortages.62 Employment-Based Green Card An alternative to a temporary work permit is lawful permanent residency, known more commonly as green-card status. A green card allows the holder to live and work in the U.S. permanently by way of a 10-year permit that is renewable indefinitely. Employers can sponsor employees and apply for a green card under a handful of employment- based categories, including under the EB-1 (first preference category for employees with extraordinary ability in the sciences, arts, education, business or athletics; outstanding researchers and professors; or certain multinational managers and executives), the EB-2 (second preference category for employees with a master’s degree or higher or those with exceptional ability in the sciences, arts or business) and the EB-3 (third preference category for employees with a bachelor’s degree or lower and all other workers).63 Since most nurses have associate’s degrees or bachelor’s degrees, they are best suited to apply for the EB-3 green card category. In order to initiate the application process, the foreign nurse must first complete certain eligibility steps, including passing the NCLEX-RN exam (National Council Licensing Exam for Registered Nurses); demonstrating English proficiency, both written and oral;64 and obtaining certification (referred to as the VisaScreen Certificate) to show that the nursing degree received is comparable to a U.S. nursing degree.65 The VisaScreen Certificate requirement was established by Congress in 2003 to ensure that foreign nurses’ education, language abilities, experience and training were equivalent to that of U.S.-educated nurses. However, this certification is still required of foreign nurses even if they receive their nursing education in the United States.66, 67 There are only three sources for the nursing VisaScreen Certificate in the U.S.: the Commission on Graduates of Foreign Nursing Schools (CGFNS), Josef Silny & Associates and, the most recent addition, International Education Evaluations LLC.68 Securing a VisaScreen Certificate from any of these sources can take several weeks to complete and can incur a cost of hundreds of dollars.69 Once the nurse has demonstrated eligibility to work in the U.S., the employer can initiate the green card process. The first step employers must complete is to request a prevailing wage determination from the U.S. Department of Labor (DOL), which is a report detailing the average wage for a given occupation in a given geographical area. Under the Immigration and Nationality Act (INA), the wages offered to a foreign employee must meet or exceed the prevailing wage for the occupational classification sought. This helps ensure that hiring a foreign worker will not adversely impact the wages and working conditions of similarly situated U.S. workers,70 while also preventing potential abuse by U.S. employers that might seek to pay foreign workers less, thereby undercutting U.S. workers for cheaper foreign labor.71 As of Oct. 15, 2024, the DOL is taking approximately six to eight months to issue determinations for these types of wage requests.72 Once the prevailing wage determination has been issued, the employer must conduct a period of advertising and recruitment to test the market for any qualified and available U.S. workers for the proffered position. They then must file a lengthy labor certification application with the DOL.73 If the DOL certifies the application, the employer can then file an Immigration Petition for Alien Workers, also known as Form I-140. This petition verifies the terms of employment and demonstrates the employer’s ability to pay the proffered wage.74 Form I-140 does not grant any immigration benefit except for assigning a priority date for the employee’s green card process,75 securing the employee’s “place in line” for a green card, and determining the date that the rest of the green card petitions can be filed, including an application for an EAD.76 For nursing positions, employers do not have to conduct the advertising and recruitment stage of the process or submit an application for labor certification to the DOL because the government has recognized that some jobs (referred to as Schedule A occupations and including nurses and physical therapists) already have established shortages; therefore, the requirement to test the market does not apply.77 After receiving the prevailing wage determination, employers can skip some of the normal employment-based green card steps and may instead submit a Form I-140 petition for the nurse, getting a priority date that is much sooner. Then, when the priority date is current, the employer can file the rest of the green card petitions for the nurse, including the application for an EAD.
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