[Senate Hearing 107-356]
[From the U.S. Government Publishing Office]
S. Hrg. 107-356
RURAL AND URBAN HEALTH CARE NEEDS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MAY 22, 2001
__________
Serial No. J-107-20
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
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Subcommittee on Immigration
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California
JON KYL, Arizona CHARLES E. SCHUMER, New York
MIKE DeWINE, Ohio RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
James Rowland, Majority Chief Counsel
C O N T E N T S
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STATEMENT OF COMMITTEE MEMBER
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
WITNESSES
Hegerty, Martha, President, Country Care Nursing Facility,
Easton, Kansas................................................. 7
LeBaron, Bradley D., President and Chief Executive Officer,
Uintah Basin Medical Center, Roosevelt, Utah................... 20
Levine, Ruth E., Senior Health Economist, World Bank, Washington,
D.C............................................................ 23
Page, Susan, President and Chief Executive Officer, Pratt
Regional Medical Center, Pratt, Kansas......................... 3
Shusterman, Carl, Attorney, Los Angeles, California.............. 11
Sosne, Diane, Co-Chair, Service Employees International Union
Nurse Alliance, Seattle, Washington............................ 16
Wear, Douglas M., Chair, Committee on Rural Health, American
Psychological Association, Seattle, Washington................. 26
SUBMISSIONS FOR THE RECORD
Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, DC,
memorandum..................................................... 30
American Bar Association, Governmental Affairs Office,
Washington, DC, statement...................................... 33
Commission on Graduates of Foreign Nursing Schools, Philadelphia,
PA, statement.................................................. 37
Lutheran Immigration and Refugee Service, Philadelphia, PA,
statement and attachments...................................... 39
Keller, Allen S., M.D., Division of Primary Care Medicine, New
York University School of Medicine, New York, NY............... 51
RURAL AND URBAN HEALTH CARE NEEDS
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TUESDAY, MAY 22, 2001
U.S. Senate,
Subcommittee on Immigration,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:11 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sam
Brownback, Chairman of the Subcommittee, presiding.
Present: Senator Brownback.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. I will call the hearing to order. Thank
you all for joining us today.
We are in what is affectionately referred to as a vote-
arama on the Senate floor. For any of you who are unschooled
here, although I think most of you are familiar with this, it
where the Senate basically has a continuous vote going on.
So I ran over here from the last vote. I will stay here as
long as I can and I will run back for the vote, and we are
going to try to catch a couple of these vignettes, if you will,
and recesses in between.
I apologize in particular to the people who traveled a long
distance to be here to testify. It is an important subject and
an important topic, but this is a big tax bill and we are
trying to get this through. Unfortunately, that is where we
are.
So if you will bear with me, what I would like to do is put
forward an abbreviated opening statement, open it up for very
concise comments from the panelists of 2 minutes or so in
length. Then we will go to each individual.
I will probably have to take a break fairly quickly. We may
only get to one or two of you and then I will have to break to
run over and vote. I will come right back and then we will
continue it from that point. So this is going to be very herky-
jerky, I guess is the term. I don't know how technically to put
it, but we are going to have to stop and start on this to be
able to get this done. I didn't want to cancel the hearing
because a number of you had traveled long distances and I think
this is an important topic.
Let me start out by saying again that I am pleased that
everybody is here. This is a topic we need to review over some
extended period of time. For a while now I have come across the
topic of needs in rural health care during my travels across
the State of Kansas. As I would visit particularly rural
hospitals, but also urban hospitals in my State, I saw a
shortage and great need for health care personnel--physicians,
nurses, medical technologists, and others as well. I would hear
from hospital administrators--such as Don Wilson who is here
from the Kansas Hospital Association--who would comment about
the critical shortages that we were experiencing.
The charts here show the decline in percentage of
registered nurses under the age of 30 and under the age of 35.
We have another chart that I would like to show up here as
well. It shows the projection of supply and demand for full-
time equivalent registered nurses, 2000 to 2020. This was done
in 1996 and doesn't even accurately reflect the data we have
today.
Today it looks like we have a convergence of supply and
demand, yet as I think you will hear in testimony, that is not
the case of what is occurring. This projection was made in 1996
and you can see what happens in the outyears.
Nothing can traumatize a family more than a medical
emergency, particularly one that may have been prevented by
timely access to needed medical professionals. In Kansas, I
know that many communities, would be without a doctor if it
were not for an immigrant physician. I know that many
communities, both in Kansas and around the country, would
benefit from a greater number of not only doctors but nurses,
nurses aides, radiologists, medical technicians and other
health care professionals.
In the area of nursing, it has become apparent that the
problem has developed into one of national significance.
According to the American Organization of Nurse Executives, a
nursing shortage is emerging nationwide that is fueled by age-
related career retirements, small to moderate increases in job
creation, and reduced nursing school enrollments.
According to the American Organization of Nurse Executives,
``Job replacement-related demands due to registered nurses age-
related retirements are expected to increase rapidly over the
next 5 to 15 years.''
Data from the Department of Health and Human Services
indicates that 18.3 percent of registered nurses today are
under the age of 35, compared to over 40 percent in 1980. And
only 9 percent of registered nurses are under the age of 30,
compared to 25 percent in 1980. Projections by several
economists show that by the year 2020, the number of registered
nurses working in America will actually be 20 percent below the
projected need.
The purpose of today's hearing is to learn about the scope
of current personnel needs in health care around the country
and learn what role this Committee can play in addressing those
needs.
Larger or more in-depth solutions to today's pressing needs
may emerge from the HELP Committee or the Finance Committee,
and we must keep in mind the limited jurisdiction of the
Judiciary Committee in its ability to address all outstanding
financial or labor issues present in today's hospitals and
nursing homes. Indeed, many of these issues will have to be
addressed at the State level.
However, simply because we cannot solve all of today's
health care problems does not mean that we abdicate our
responsibility to find practical solutions to help real people.
So I look forward to the testimony that will be presented here
today by the witnesses.
I call on our people to make their presentations. We are
going to start here from my left, Susan, and the reason we are
doing this is that the two Kansans are to my left, not to be
prejudiced against the rest of you, but I have a bias for
Kansas.
Susan Page is with the Kansas Hospital Association. She
will be making a presentation on behalf of the Kansas Hospital
Association.
Susan, why don't you go ahead? I will introduce each of you
as we go along, and if you could keep that to a couple of
minutes in summary form, we will take the full testimony and
have that in the record.
STATEMENT OF SUSAN PAGE, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
PRATT REGIONAL MEDICAL CENTER, PRATT, KANSAS, ON BEHALF OF THE
KANSAS HOSPITAL ASSOCIATION
Ms. Page. Thank you, Chairman Brownback. As you said, my
name is Susan Page, and I am the CEO of Pratt Regional Medical
Center in Pratt, Kansas.
Attached to my testimony for the record is a copy of
``Critical Condition,'' a research monograph prepared for our
Committee on Workforce Strategies. It examines the status,
causes and suggested solutions of our workforce shortages.
While it doesn't address immigration specifically, it details
the need for immediate action. Easing immigration restrictions
to allow qualified health care professionals to practice in
places like Pratt would provide some immediate relief, allowing
for other more long-term strategies to come to fruition.
Like most industries, our health care field has undergone
tremendous changes over the past decade. One of the
manifestations of these changes is an increasing shortage of
health care professionals, particularly nurses, as the slides
project.
During this past winter, it was common for hospitals to
divert patients to other hospitals, not because of a lack of
beds but rather a lack of nurses and other health care
professionals to take care of our patients.
For the first 4 months, at Pratt Regional the cost for our
use of temporary agency nurses would have funded two full-time
nurses for an entire year if they were available, and our
policy of paying extra bonus shift premiums to fill uncovered
shifts has cost us over the past 4 months $31,000, enough for
another full-time RN. This is despite the fact that over the
past 4 years we have increased nursing salaries 23 percent.
The chart on page 2 of my written testimony illustrates how
rapidly our workforce shortages are increasing. Between 1999
and 2000, 80 percent of the categories of clinical employee job
vacancies increased significantly. This resulted from both an
increase in demand based on volume and a decrease in the number
of available workers.
The table on page 3 of my testimony illustrates the
projected percent change in necessary health employment in
Kansas and the U.S. from 1996 to 2006. Within the next 6 years,
Kansas will require from 20 to 70 percent more clinical workers
like RN, LPNs and respiratory therapists than it did in 1996.
Chairman Brownback. Susan, I am going to have to leave in a
minute.
Ms. Page. I will get to my recommendations, what we can do
perhaps.
We have identified a monograph on a number of short,
intermediate and long-term strategies. We would ask you to
consider reinstating the H-1A visa program, modify and
streamline the H-1C visa program to allow more hospitals to
qualify, and ensure that NAFTA is not altered to restrict the
flow of health professionals from Canada and Mexico into the
U.S.
Thank you, Chairman.
[The prepared statement of Ms. Page follows:]
[An attachment is being retained in the Committee files.]
Statement of Susan Page, President and Chief Executive Officer, Pratt
Region Medical Center, Pratt, Kansas
Chairman Brownback, members of the subcommittee, my name is Susan
Page. I am the chief executive officer of Pratt Regional Medical Center
in Pratt, Kansas. Pratt Regional Medical Center is located in rural
south central Kansas. The hospital has 69 acute care beds, 15 skilled
nursing beds, and 55 intermediate beds. In addition to my duties at
Pratt Regional, I am the chair-elect of the Kansas Hospital
Association's Board of Directors and chair the association's Committee
on Workforce Strategies.
Attached to my testimony for the record is a copy of Critical
Condition, a research monograph prepared under the direction of the
Kansas Hospital Association's Council on Health Delivery and the
Committee on Workforce Strategies. The monograph examines the status,
causes and suggested solutions, both short-term and long-term, of the
critical nature of our workforce shortages. While it does not address
immigration specifically, it details the need for immediate action.
This impending workforce crisis must be addressed immediately in order
to assure access to health care services in the years to come. Easing
immigration restrictions to allow qualified health care professionals
to practice in appropriate health care settings would provide some
immediate relief allowing other, more long-term strategies to come to
fruition.
Like most industries and professions, health care has undergone
tremendous changes over the past decade. Unimagined advances in medical
technology, drugs and pharmaceuticals, and diagnostic capabilities,
combined with severe reductions in payments caused by the increase in
managed care and the passage of the Balanced Budget Act, have totally
altered the face of health care today. One of the manifestations of
these changes is an increasing shortage of health care professionals,
particularly nurses. During this past winter it was common for
hospitals to divert patients away to other hospitals, not because of a
lack of available beds but rather because of a lack of nurses and other
health care professionals to care for them.
For the first four months of this year at Pratt Regional, the cost
for our use of temporary agency nurses would have funded two full-time
nurses for an entire year, if they were available. And our policy of
paying extra ``bonus'' shift premiums to fill uncovered shifts has cost
us over $31,000, enough for another full-time RN. This despite the fact
that over the last four years we have raised nurse's salaries 23
percent just to keep those we have.
Unlike other industries, it is difficult for health care to respond
to traditional supply and demand theories when it comes to workforce
shortages. Health professional shortages in the past, though painful,
were transient, responding to the conventional wisdom of labor
economics. Economists argue that shortages are short-term phenomena,
disappearing when employers increase their wages and benefits to
attract more workers. This may be true in properly functioning labor
markets, but health care does not fit the traditional labor model.
Employers, particularly in rural areas, do not have the complete
freedom to increase salaries to attract new employees. As a hospital's
proportion of Medicare, Medicaid and managed care patients increase,
the depressed revenues in the form of prospective payment systems and
discounts increase, leaving little room for salary and benefit
increases.
Furthermore, entry into and retention within health professions are
not controlled by wages alone. Other social variables are at work in
the decision to enter and/or remain in the health profession work
force. The current shortage is not caused simply by the inability of
the new worker supply pipeline to offset normal workforce attrition;
rather, it is complex and projected to be long term and chronic. Higher
salaries alone--even if the money to increase salaries were available--
will not solve the problem. Population growth, social changes and
public and private health insurance payment policies, and an
anticipated explosion of demand caused by the aging of the ``baby
boomer'' generation are all underlying causes of the current shortage.
Therefore, a sustained, multi-faceted approach, including easing of
current and ineffective immigration restrictions, will be required to
overcome the problem.
Current Shortages
The following table describes the change in vacant health care
position rates in Kansas hospitals between 1999 and 2000. As you can
see, in 80% of the categories of critical clinical employees the job
vacancy rate has increased significantly. This resulted from both
increases in demand for workers due to increases in volume and
decreases in the number of available workers.
Selected Health Professions Job Vacancy Rates in Kansas Hospital 1999-
2000
1Position 1999 2000
O. R. Technicians 9.2 15.8
Nuclear Medicine Technologists 10.9 14.3
Certified Nurse Assistants (LTC) 8.1 11.2
Certified Nurse Assistants (Acute Care) 8.4 10.2
Ultrasound Technologists 10.1 9.9
Respiratory Therapists 8.9 9.2
Emergency Medical Technicians 5.0 8.6
Radiologic Technologists 6.0 7.6
Staff Nurses (RN) 4.3 6.1
Licensed Pr9.7ical Nurses5.3
Projected Change in Health Care Workforce
The projected percentage change in necessary health employment in
Kansas and the United States for the period 1996-2006 is shown in the
table below. The projected rate of increase in Kansas exceeds the
national rate in 10 of 17 health professions. Within the next six
years, Kansas will require half again as many or more EMTs, respiratory
therapists, physical therapists, PT assistants, OT assistants and
medical records technicians as it employed in 1996. The rate of
increase for RNs, nurse aides and orderlies, pharmacy assistants,
speech pathologists and audiologists and dieticians and nutritionists
will increase by approximately 25 percent.
Projected Percentage Increase in Needed Positions
Selected Health Professions 1996-2006
Health Profession Kansas U. S.
Registered Nurses 25.3 20.9
Licensed Pr15.9cal Nurse18.5
Nurse Aides and Orderlies 26.6 23.3
Physician Assistants 36.8 46.7
Pharmacists 20.3 12.6
Pharmacy Aides and Technicians 26.1 11.0
Physical Therapists 47.7 70.8
Physical Therapy Assistants 50.0 78.5
Occupational Therapists 42.9 66.1
Occupational Therapy Assistants 60.0 68.7
Speech Pathologists and Audiologists 26.3 50.6
Respiratory Therapists 72.0 45.8
Emergency Medical Technicians 55.6 45.1
Radiologic Technologists 35.5 28.9
Laboratory 21.7nologists14.9
Medical Records Technicians 61.5 50.9
Dieticians and Nutritionists 22.2 18.2
Source: Bureau of Labor Statistics
Supply Pipeline and Training Programs
The American Association of Colleges of Nursing reported that
enrollment of nursing students in entry-level baccalaureate nursing
programs declined by 19.3 percent in the five years form 1995 through
1999. The decline is attributed to fewer applicants and the
availability of fewer training slots. In Kansas, enrollment in
registered nurse education programs declined by 17.4 percent in only
four years. The declining trend is also reflected in graduation rates.
In 1999, there were almost 300 fewer RN graduates than in 1996, a
reduction of 22.5 percent. Further, expanding the number of training
slots for health care professional training is limited by the
availability of faculty and clinical practicum sites. Students must be
closely supervised to benefit from their clinical experience. Staff
shortages in hospitals and clinics affect the ability of health
professionals to teach students in clinical settings. And, even if
every currently available slot in Kansas were filled by qualified
students they still would not meet the projected need for workers
today.
Aging Workforce
The primary cause of workforce attrition today and in the immediate
future is the aging of workers that is felt most acutely in nursing. In
Kansas, 64 percent of the registered nurses employed are older than 40
years of age. The percentage of employed LPNs over age 40 is 57.7.
Twenty-eight percent of employed RNs in Kansas are over 50 years of age
and 26.4 percent of employed LPNs are over age 50.
The aging of the workforce has three immediate consequences. First,
according to a 1996 report from the Institute of Medicine, older
workers have a reduced capacity to perform certain strengthrequired
tasks, such as lifting and turning patients. Second, older workers are
less dependent on fulltime employment than younger workers and often
reduce their productive work hours. And third, as older workers retire
from the workforce equally qualified workers must replace them.
Potential Solutions
The Kansas Hospital Association Council on Health Delivery and the
Committee on Workforce Strategies have identified a number of short,
intermediate and long term strategies and goals to address the
workforce crisis. While most of these goals are locally achievable,
federal assistance is critical. Several good pieces of legislation have
recently been introduced in both the House and Senate addressing the
nursing shortage using educational incentives, however I would
recommend this committee consider the following recommendations to ease
immigration restrictions which would provide immediate relief:
Reinstate the H-1A visa program. In the past, this
program was used specifically to allow RNs licensed in their
own countries to enter the U.S. temporarily.
Modify and streamline the H-1C visa program to enable
more hospitals to qualify. The program should also provide for
expedited entry of qualified foreign nurses into the U.S.
Ensure that the North American Free Trade Agreement
(NAFTA) is not altered to restrict the flow of health
professionals from Canada and Mexico into the U.S.
Mr. Chairman, thank you for the opportunity to address the
subcommittee. I would be happy to answer any questions from the
members.
Chairman Brownback. Thank you. That was very well done, and
I apologize for rushing you and my rudeness in so doing.
I am going to run to the floor and I will run back and we
will go on from there. We will call a recess and it will be
about 15 minutes. I will be right back.
[The Subcommittee stood in recess from 2:20 p.m. to 3:02
p.m.]
Chairman Brownback. I will call the hearing back to order.
My apologies for that long break. The votes took much more time
in between than what I thought they would.
Our next person to present is Martha Hegerty. She is
President of Country Care, Incorporated, in Easton, Kansas, and
is here on behalf of the American Health Care Association.
Ms. Hegerty, the floor is yours.
STATEMENT OF MARTHA HEGERTY, PRESIDENT, COUNTRY CARE NURSING
FACILITY, EASTON, KANSAS, ON BEHALF OF THE AMERICAN HEALTH CARE
ASSOCIATION
Ms. Hegerty. Good afternoon, Chairman Brownback. I am
honored to appear before you. As you said, I do own a small
skilled nursing facility in Easton, Kansas. Easton is a town of
200 located 12 miles from the Federal prison in Leavenworth. We
have 63 employees who take care of 56 residents 24 hours a day,
7 days a week.
There are a couple of points that I would like to make out
of my written testimony. One is that nursing homes and
sometimes hospitals are starting the practice of offering
computers, giving computers away if somebody will leave one
facility and go to work for another facility. They are offering
a $5,000 sign-on bonus if you leave the employment of one
nursing home and go to work for another one. What this is
causing is just a shift of your nursing personnel. One facility
is robbing another for the same people, so they make a round of
the nursing homes or the hospitals.
The other point that I would like to make is that I have
petitioned for two Filipino nurses. I did this back in 1996 and
it took me until March 2, 2001, to receive these nurses from
the Philippines. So something needs to be done with the
shortage that we have and the length of time that it does take
for us to get the nurses.
In summary, I feel like we have a train wreck on the
horizon. The baby-boomers are retiring; they are needing care
and long-term care. We have a shortage of people wanting to
enter the nursing field to take care of these people. It is
stressful; it is physically and emotionally taxing to be in the
nursing facility. You have all these frail elderly and you
don't have enough people who want to join the nursing
workforce.
Something needs to be done to help the nursing facilities
have CNAs, LPNs, as well as RNs. Right now, the immigration
laws don't cover the certified nurses aides at all. So I feel
like that we need to count on you to enact some new immigration
programs that would cover all of the health care workers that
we need.
Thank you for listening to my problem, and I hope I did
that in my time span.
[The prepared statement of Ms. Hegerty follows:]
Statement of Martha Hegarty, President, Country Care Nursing Facility,
Easton, KS, On behalf of the American Health Care Association
Good afternoon Chairman Brownback, Ranking Member Kennedy and
members of the Subcommittee. My name is Martha Hegarty, my friends call
me Marty, and I hope you will too. I am extremely honored to appear
before you to discuss the critical shortage of caregivers in long term
care, and the important role reforming our nation's immigration must
play in beginning to solve the problem.
Let me tell you about myself and the people in my care in Easton,
KS. I own and operate a skilled nursing facility--called Country Care--
and my patients are very much like a family to me. My daughter is the
administrator, and we have 63 dedicated caregivers with us. We care for
56 patients 24 hours a day, 365 days a year.
Easton, Kansas is what you would probably call a small rural town.
We have a total population of 200 people. In fact, with 63 employees, I
am the largest employer in town employing about one-third of the
population of Easton.
This is the kind of town where everyone cares for each other, and
its the kind of town where having skilled providers is critical to
access to care, quality of care, and ultimately, quality of life.
As you are well aware, there is a nationwide shortage of
caregivers. You have heard about the RN shortage, but I am here to be
certain that you do not forget about the nursing paraprofessionals--
those on the front line of caregiving.
These dedicated women and men are the unsung heroes of caregiving.
The Certified Nurse Aide, the Licensed Practical Nurse, and the
resident assistants that together provide over 80% of the hands-on care
in nursing homes, assisted living, and other long term care settings
are the backbone of our senior's health care system.
Without these people, who work in anonymity for relatively low
wages, our elderly and disabled would not get the care they need. To
ignore this shortage is to ignore the fact that we need to strengthen
our skilled nursing infrastructure at a time when demand for care is
expanding rapidly.
In rural Kansas, this problem is made worse by the trend called
depopulation. I know Senator Brownback is all too aware of the critical
problem compounding the caregiver shortage. While the number of elderly
in KS is exploding, the people who would provide that care are leaving
in droves.
Since the riverboat gambling opened up 30 miles from Easton, the
flight has become even worse. Now, young people can work in the casinos
for $15-$25 per hour. When Medicaid pays me $3.20 per hour to care for
each patient, I simply can not compete for workers by paying casino
wages. That would take funds away from patient care something I cannot
do.
At Country Care, we manage to provide excellent care despite the
difficulty competing in the labor market. I pay as high wages as I can
afford, and I care for the people who work with me. But many of my
colleagues in caregiving around Kansas are struggling. I read an ad in
the paper last week where nursing homes are offering free computers to
people who come to work for them. In fact just a few days ago several
of my LPNs received postcards from a nursing home in Leavenworth
offering $5,000 signing bonuses for leaving me and going to work for
them. We are now at a place where we are stealing caregivers from one
another, bidding up costs, with no increase in numbers of staff or
quality of care. I'm here to ask you to help stop this destructive
cycle.
Amid this shortage of caregivers that all experts agree will only
escalate, the option of relying on the current legal immigration
programs is really not an option at all. My experience in attempting to
bring nurses from the Philippines is a good example of how the system
does not work for caregivers or patients.
A few years ago, I found myself unable to recruit the Nurses I need
to meet the needs of some more acutely ill patients, and to comply with
new paperwork burdens added on by the Health Care Financing
Administration (HCFA). I tried everything to find caring and dedicated
Kansans to come work in Country Care, but they just were not available.
I should tell you that I have no mandatory overtime at Country Care,
and never have. But when someone calls in sick or doesn't show up, the
patients still need care, so I often must pay double-time to get the
residents the care they need. But this shortfall of staff was not
possible to fill domestically at any price, so I had to turn to
immigration.
In 1996, I petitioned the INS for two Registered Nurses to help
meet the needs of my patients. I knew it would be a struggle to make it
through another month without more help. I needed Certified Nurse Aides
(CNAs) too, but there is no immigration program that makes getting them
possible. I was told it would take about 6-12 months to bring the two
RNs here from the Philippines and get them processed by the INS.
Little did I know, that 6 to 12 months would turn into 24 months,
36 months, and then nearly 5 years. The fact is that the two nurses
that I so desperately needed in 1996 came two months ago in March 2001.
Don't get me wrong, I still need them. In fact, I need several
additional nursing staff, but I'm not sure if my residents or I can
wait another five years for INS to process the required paperwork.
I'm here to tell the Committee, the INS needs reform so that the
process works for employers and the many patients whose care can not
wait. Yet more than that, there must be a special system set up for the
critical health care needs our nation faces.
This will be the only way to meet the needs of caregivers as the
baby boomers are increasingly in need of care, and the supply of
domestic caregivers dwindles. Everyone can see this train wreck in the
making, but it is only you who can take the necessary steps to avert
it.
The American Health Care Association and I propose is a system by
which the caregiver shortage is measured annually by the Department of
Health and Human Services, and the INS makes the necessary visas
available in an expedited manner.
This would be a system under which, if the shortage were abated
with an enhanced domestic workforce, no visas would be needed, and
hence none granted. But in times of severe shortage, such as now and in
the foreseeable future, there should be a flexible mechanism to help
facilitate the supply of care providers our seniors need and deserve.
Background
SHORTAGE
According to Cornell University's Applied Gerontology Research
Institute, the US will need 600,000 additional CNAs over the next five
years. According to the Health Care Financing Administration, nursing
homes are 250,000 CNAs and 60,000 RNs short of the minimum needed to
provide quality care right now. How many seniors will not get the
attention and care they need today and tomorrow due to this shortage?
The GAO report released last week entitled ``Nursing Workforce:
Recruitment and Retention of Nurses and Nurse Aides Is a Growing
Concern.'' The analysis found that nurse and nurse aide shortages can
severely impact the quality of care and that the shortage is expected
to worsen as the aging population increases and fewer people enter the
nursing workforce.
DEMOGRAPHICS
The Congressional Research Service, the population requiring long
term care will explode by 75% over the next 40 years. The fastest
growing age group in our country is those 85 and older, and Kansas has
5 of the oldest populated counties per capita in the country.
Over the next several years, as the baby boomers begin retiring,
the nurse aide jobs are expected to be among the fastest growing in the
workforce. But who will fill those jobs? There is no ``H-1'' category
for the nurse aides or Licensed Practical Nurses. In fact, even RNs for
nursing homes are largely excluded from the H-1B visa category. This
just doesn't make sense in the current shortage environment.
Both the House and Senate Budget Committees included language in
this year's budget requesting that relevant committees address this
critical shortage. Additionally, as Senator Kennedy knows, the HELP
Committee held a hearing last week on this very topic. However, this
hearing focused on hospitals and RNs rather than the front-line
caregivers in long term care--where the most severe crisis exists.
According to the GAO report from that hearing, the number of nurse
aide jobs will grow an additional 36% by 2008--from 2.1 million to 2.9
million jobs needed--compared to a 14% increase in all jobs. 93% of our
nurse aides are women, and as you know women have many other attractive
employment options today that often are less demanding physically and
emotionally.
Many will point to low wages and poor benefits as the reason the
domestic supply of nurses and nurse aides is diminishing. It is
important to remember that when Medicaid in Kansas pays about $3.50 per
hour to meet all needs of the patients, nursing homes are limited in
the amount they can spend on labor. Nevertheless, last week's GAO
report compiled statistics that show that nursing homes are doing all
they can to be competitive in the service sector labor marketplace.
According to the report:
Average individual earnings of nurse aides in nursing
homes is $14,723, compared to $13,412 among service sector
workers generally.
67.4% of nurse aides have health insurance compared to
58.6% in the service sector jobs and 64.5% among all workers.
25.2% have pension coverage compared to 21.3% in the
service sector generally.
This level of pay and benefits is impressive when you consider the
fact that Medicaid pays less than cost for most nursing home patients,
and that in many states, such as Massachusetts, profit margins are
actually in the negative.
FINANCING
As I have stated, nursing facilities are unlike any other business,
or even any other health care provider. We are dependent on the
government to pay for nearly 80% of our patients' care needs. If these
payment levels fall short of the cost of care, we cannot discharge
patients, we will not reduce the quality of care, and we cannot lay-off
staff. This explains why nearly 200,000 nursing home patients are being
cared for in bankrupt facilities, and why--for example- 56 facilities
have closed in the past 2 years in Massachusetts alone, displacing over
3,000 patients.
70% of nursing home costs are labor costs. But with more than two
out of three of our residents paid by Medicaid, when labor costs go up,
the state-set payment rate often does not follow. That's why in 1998,
Kansas enacted a wage pass-through for nurse aides to combat the
shortages. We found that turnover decreased slightly, by 4%, but there
has been little significant dent made in the shortage. In 2000, the
state could not find the money to continue the program and any salary
increases given must now be shouldered by the facilities alone.
COMPETITION/BUILDING THE DOMESTIC WORKFORCE
In Kansas and throughout the nation, skilled nursing facilities
serve as the training ground for nurseaides. We recruit unskilled
people and put them through the mandatory training program, both
classroom and clinical education, and then help them take the
certification exam to become Certified Nurse Aides. Once they are CNAs,
many people leave our facilities, to work in hospitals, which can
afford to pay higher wages, or in home health, asissted living, or
other health care settings.
Additionally, you should know that caring for the elderly and
disabled is very difficult work. Feeding dressing, bathing, and
toileting are physically demanding; and treatment of Alzheimer's
patients and losing others who become like family to you is emotionally
demanding as well. It is much easier to say ``Welcome to Walmart'' for
$9 per hour than to care for seniors for $8.
Providers and many policymakers are doing everything they can to
develop domestic sources for these caregivers. The Nurse Reinvestment
ACT, the NEED Act, and other bills have been introduced to build
domestic supply of Nurses. Again these bills do not yet address the
CNAs, LPNs, and other front-line caregivers. We feel strongly that the
traditional nurse-targeted education programs in Titles 7 & 8 should be
expanded to include these critical paraprofessionals.
AHCA is also proposing a system of grants for recruitment,
retention, and training of nurse aides, in addition to wage pass-
throughs and better Medicaid rates to develop American caregivers. But
even if we are wildly successful, we will not reach the 600,000
additional CNAs that the studies say we must have within five years. We
have met with the Department of Labor and the Department of HHS to
discuss the shortage and immigration. But the solution is really in
your hands.
IMMIGRATION
The Immigration programs of the past have been unresponsive,
disjointed, inflexible, and politicized. We must find a better way that
takes a common sense approach to solving this national problem. And we
must put politics aside to meet the growing needs of our nation's
senior citizens. The H1-A program was repealed in 1994 due to political
opposition. The H-1B program is targeted toward the technology sector
and even excludes many RNs--it does not apply at all for LPNs or CNAs.
And the H1-C program was so limited as to be unusable to nursing homes.
We need to rethink this patchwork system of Band-Aids, and replace it
with a system that responds when there is a real shortage, and goes
away when there is not.
As I have said, we need a flexible program that is targeted
specifically to meet the critical health care needs of our seniors
before the coming demographic wave washes over the system of care
delivery. We need a program that allots the right amount of visas
during shortages and none when the shortage is gone.
An expanded H-1.C program that serves rural as well as urban
shortages would be helpful. But the requirement for a baccalaureate
degree should be removed, since many RNs in long term care come through
diploma programs or associate degree programs. This makes it extremely
difficult to require a BS degree to qualify for H-1B or C programs for
RNs.
This will not however, in any way alleviate the shortage of LPN and
CNA caregivers in long term care or any other setting. This crisis must
be addressed with new solutions such as that which we have proposed.
But most importantly, I would like members of this subcommittee to
look at immigration for health care personnel as separate and distinct
from other occupations that do not hold our citizens' lives in their
caring hands. Our dependence on the government for revenue, and the
work that we do caring for frail elderly and disabled populations make
us unique as employers, and access to our services and the quality of
our care must not be compromised.
CONCLUSION
In summary, we have a train wreck on the horizon. The baby boomers
retiring and needing care will collide with the shortage of people to
care for them.
The crisis is far more deep than just a lack of RNs. Nursing
facilities need CNAs and LPNs to provide the hands-on care. Our
dependence on government rates that are often below the cost of care
prevents us from competing in the labor marketplace, and the difficulty
of the job physically and emotionally prevents caregivers from entering
the field.
The current immigration patchwork takes too long for patients to
wait, and is not targeted to where the real need is. Care providers are
counting on you, the Congress, to enact a new immigration program that
is responsive to the care needs of our frail elderly and disabled
citizens.
Thank you for the opportunity to give you my personal story and my
views on the best ways to meet the needs of our seniors and disabled.
Your attention and action in ' addressing this crisis will ensure an
adequate and stable workforce to serve our seniors as they enter their
``golden years'' in increasing number.
I'd be happy to answer any questions you may have.
Chairman Brownback. You did a very good job, and I am
deeply apologetic that we aren't having the quantity of time
that I would like to have to go through this. Unfortunately, it
is just simply a function of voting on the floor.
Mr. Shusterman is an attorney in Los Angeles, California.
Welcome to the Committee and you are welcome to testify.
STATEMENT OF CARL SHUSTERMAN, ATTORNEY, LOS ANGELES, CALIFORNIA
Mr. Shusterman. Thank you for inviting me, Senator
Brownback.
To summarize my testimony, right now we have three
different immigration programs, none of which work
satisfactorily. We have the H-1B program which covers almost
every other health care profession, from physician to med tech
to therapist. But because nurses don't generally require a 4-
year degree in order to work at a hospital in the United
States, they are not allowed to get H-1B visas.
They are allowed to get H-1C visas, which was a program
that was sponsored back in 1999, but to date not one single
nurse has been able to qualify. The reason for that is this:
Congress passed the law and it was signed by the President in
November 1999. The Labor Department, in September of 2000, came
out with regulations. In the regulations, they specified that
only 14 hospitals in the entire United States could possibly
qualify.
Some of those hospitals, I might point out, the Labor
Department now admits it made a mistake and is in the process
of trying to deny their qualifications. They are not in an
underserved area back in 1997, which is what the law required,
and the Labor Department says you just don't quality.
The Immigration Service 19 months later has not even come
out with regulations. So even the 14 hospitals which the Labor
Department has now certified, no matter how many nurses they
petition, cannot get a visa to come to the United States.
Those are the only two temporary visa programs. The
permanent visa program, as the witness to the right of me just
pointed out, can take up to 5 years. I was going to be
conservative and say 18 to 24 months. We represent hospitals
all over the country and that is the usual waiting time. That
is a very long time to wait, and the administrative hoops that
the hospitals have to jump through are just incredible.
I talked to various people during the break and I can see
that the real crux of this is that there are all sorts of
labor-management issues, but I don't think that is the function
of this committee. I think the function of this Committee would
be to sponsor a temporary nurse program that is streamlined and
that worked very well from 1952 up until when it expired,
despite the Labor Department committee's recommendation that it
be continued, back in 1995. I commend you to consider
introducing legislation along that order.
I thank you and I would be happy to answer any questions.
[The prepared statement of Mr. Shusterman follows:]
Statement of Carl Shusterman, Law Offices of Carl Shusterman
Mr. Chairman and Distinguished Members of the Subcommittee:
My name is Carl Shusterman, and I am the principal attorney in the
Law Offices of Carl Shusterman in Los Angeles, California. I formerly
served as a Trial Attorney with the Immigration and Naturalization
Service and have practiced immigration law for over 25 years. I have
written many articles regarding the immigration of nurses, physicians
and other allied health care professionals to the United States. Some
of my articles appear on the Internet at http://shusterman.com Our law
firm represents both health care professionals and providers across the
country.
I appreciate this opportunity to present my views on how our
current immigration policy can be modified to result in improved health
care for patients in both urban and rural areas.
Registered Nurses
1. TEMPORARY ``H-1C'' VISAS
In the past, our country has experienced periodic shortages of
health care personnel, particularly registered nurses. And, one of the
strategies that has helped us respond to these cyclical shortages was
through immigration. However, by all accounts, our nation is now
experiencing a severe shortage of registered nurses that is different
from any we have ever before faced. Fewer men and women are choosing
nursing as their career. The average age of an RN is rising. Many are
approaching retirement and will leave the nursing workforce within the
next ten years. Couple this with the fact that 78 million ``baby
boomers'' will be eligible for Medicare within the next ten years, and
many of us will be in need of more health care.
There are many complex reasons behind the nursing shortage and I
commend you, Mr. Chairman, for focusing attention on this issue as it
relates to the health care needs of our rural and urban regions.
While our nation must look to long-term approaches to address the
shortages, there are short-term strategies that we can take now to help
alleviate the problem. One short-term approach is to revise this
nation's policies on nursing immigration.
Current U.S. immigration policy severely constrains our ability to
recruit qualified RNs to respond to the immediate shortages many of our
hospitals are experiencing.
This was not always true. From 1952 to 1990, U.S. health care
providers could quickly and easily obtain temporary ``H-1 ``
professional visas for foreign-born nurses. The employer filed a
petition with the local INS office which approved it, and forwarded the
approved petition to the U.S. Embassy in the nurse's home country which
issued the working visa.
However, following the effective date of the Immigration Nursing
Relief Act of 1989 (INRA), only hospitals with ``attestations''
certified by the Labor Department were permitted to petition for
temporary ``H-1A'' status for nurses. Despite the stringent paperwork
requirements imposed upon employers by the Labor Department, between
1990 and 1995, approximately 7,000-8,000 nurses entered the U.S.
annually using temporary visas.
When INRA expired in 1995, a governmental commission recommended
that the law be continued with certain modifications. Instead, the law
was permitted to expire.
By 1997, the nurse shortage had begun to reappear, and many
hospitals were unable to fill vacant nursing positions, even after
extensive recruitment and retention efforts geared towards U.S. nurses.
Representative Bobby Rush introduced legislation to allow 500 nurses to
be sponsored by selected hospitals in medically underserved areas on
temporary ``H-1C'' visas. Similar legislation was introduced by Senator
Durbin. This legislation was not enacted into law until November 12,
1999, when the President signed the Nursing Relief for Disadvantaged
Areas Act of 1999 (NRDAA). By that time, due to a growing national
shortage of nurses, the addition of 500 nurses per year to a workforce
which exceeded one million nurses had become a woefully inadequate
response to the problem.
Because of a long delay in the issuance of regulations by the
Department of Labor, hospitals were unable to submit H-1C
``attestations'' until September 21, 2000. The regulations took the
unusual step of listing 14 hospitals across the country that the Labor
Department determined would be eligible to apply for attestations.
On March 27, 2001, the Labor Department indicated that nine
hospitals had submitted attestations. The Department approved four of
these attestations, denied one, and four were under review.
In fact, of the four hospitals whose attestations were under
review, the Labor Department is currently attempting to deny the
attestations of at least three of these hospitals. Even though these
hospitals were on the Labor Department's list of 14 qualified
hospitals, the Department later determined that the hospitals wer--not
located in medically underserved areas on the required date, March 30,
1997. Finally, no nurses can be approved until the INS issues
regulations to implement the program.
It is tragic that today, over 19 months after the passage of the
law, not a single nurse has obtained H1C status. And, even if this
program were in full operation today, 500 nurses per year would hardly
fill the need.
Clearly, the present H-1C nurse program is not a viable option to
help us address the current nursing shortage.
2. TEMPORARY ``H-1B'' VISAS
Current immigration laws permit a total of 195,000 visas annually
for persons in ``a specialty occupation'' and ``fashion models. . .of
distinguished merit and ability''.
The law defines a ``specialty occupation'' as an occupation that
requires the ``attainment of a bachelor's or higher degree in the
specific specialty . . .as a minimum for entry into the occupation. .
.''
Although many foreign-born registered nurses have attained a
Bachelor of Science in Nursing (BSN) degrees, most health care
providers will hire staff nurses with a minimum of a 2-year degree.
Therefore, most staff nurses do not qualify for H-1B visas.
3. PERMANENT RESIDENCE
Even though nurses remain ineligible for temporary visas, there is
another way for health care providers to employ foreign-born registered
nurses. Employers may petition for registered nurses to obtain
permanent residence in the United States. Unfortunately, this too has
become a long and tedious process.
In order for a foreign-born registered nurse to have a petition
submitted on her behalf, she must possess either a nursing license in
the state of intended employment or have passed a test administered by
a private organization, the Commission on Graduates of Foreign Nursing
Schools (CGFNS). To obtain a state license, a nurse must pass the NCLEX
examination that is administered by the National Council of State
Boards of Nursing. Since this examination may only be taken in the
United States, it is necessary for foreign nurses to obtain visitors
visas to enter the U.S. in order to take the examination. Since it is
difficult for nurses in most third-world countries to obtain visitors
visas from U.S. Embassies abroad to enter the U.S., few of them are
able to take the NCLEX.
Instead, they must register with the CGFNS, months in advance, to
take their examinations abroad. The CGFNS examination is not offered in
all countries, and often nurses must travel considerable distances and
incur significant expenses in order to take the examination.
Once a nurse passes either of these two examinations, the
prospective employer may then submit a petition to the INS. The
employer must submit proof that the nurse has completed her nursing
education and has passed either the NCLEX or CGFNS examinations.
Depending on the location of the INS Service Center where the petition
is submitted, it may take anywhere from three to eight months for the
immigrant petition to be approved.
If the registered nurse is residing abroad, generally the approved
petition is forwarded to the State Department's National Visa Center
(NVC). The NVC mails the nurse, or her attorney, a biographic form and
a list of documents that must be presented to the U.S. Embassy or
Consulate in her country at her immigrant visa interview. These
documents include her birth certificate, police clearance(s), marriage
certificate, medical examination, and various other documents. The NVC
screens the forms for completeness and accuracy, and forwards them to
the appropriate U.S. Embassy or Consulate abroad. This process may take
several months.
In addition, there is the ``VisaScreen'' requirement. The
VisaScreen certificate requirement was mandated by Congress as part of
the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996.
Section 343 of that law requires that certain foreign-born health care
workers obtain certification that their education, training, license
and experience are equivalent to that of American workers, and that
they take examinations to demonstrate their proficiency in the English
language. Although this requirement is well-intentioned, for registered
nurses, it duplicates requirements already imposed by state licensing
authorities.
The VisaScreen requirement became effective on the day that the law
was enacted, on September 30, 1996. This had the effect of preventing
nurses from obtaining permanent residence in the U.S. until the INS
issued regulations implementing this section of law, and the nurses
were able to comply with these regulations.
For over two years after the passage of the law, the INS failed to
issue VisaScreen regulations until, on October 14, 1998, confronted
with several federal lawsuits, the agency issued regulations that
became effective on December 14, 1998. Regulations for physical and
occupational therapists were not issued until April 1999 while
regulations for other health care workers were finally issued, pursuant
to a settlement agreement reached under a federal lawsuit, earlier this
year, four and one-half years after the 1996 law.
Many nurses and other health care workers have complained about the
difficulties in communicating with the International Commission on
Healthcare Professions (ICHP), the private agency designated by the INS
to issue VisaScreen certificates. Furthermore, the INS takes the
unreasonable position that even foreign-born nurses who are educated
and trained in the United States must obtain VisaScreen certificates to
demonstrate that their education and training are equivalent to nurses
educated and trained in the U.S.
Most foreign-born nurses immigrating to the U.S. are from the
Philippines where there is an abundance of nursing schools, and where
the language of instruction is English. There is a substantial backlog
in obtaining permanent visas for registered nurses at the U.S. Embassy
in Manila, Philippines. U.S. health care providers must often wait over
18 months to immigrate a nurse from the Philippines.
The present system specifies that a nurse cannot be admitted to
practice in the U.S. until she has cleared a multitude of bureaucratic
hurdles. The result of the present system is long and unnecessary
delays in processing visas for nurses. Something is clearly wrong when,
despite the severe nationwide shortage of nurses, it is far easier to
obtain a working visa for a fashion model than for a registered nurse.
RECOMMENDATIONS
If nurses trained abroad are to be part of the solution to the
national shortage of registered nurses in the U.S., it is essential
that Congress restore a temporary visa program to allow U.S. health
care providers to bring nurses to the U.S. within a one to two-month
period, rather than requiring them to wait up to 18 months to secure
the services of these nurses.
To be effective, such a program should be available not only to a
handful of hospitals, but to all health care providers in need. It
should be streamlined to enable qualified nurses to obtain visas to
enter the U.S. in one to two months, and should only require health
care providers and nurses to produce a minimum of documentation
sufficient to insure that the health care needs of U.S. patients are
being met, and that foreign-born nurses are being paid at a wage rate
comparable to U.S. nurses working at the same facilities.
PHYSICIANS
The American public suffers not from a shortage of physicians, but
from a maldistribution of existing physicians. Also, our system is
suffering from a severe undersupply of primary care physicians.
Every year, the Secretary of Health and Human Services (HHS)
publishes a list of Health Professional Shortage Areas (HPSAs) located
across the U.S. where the ratio of primary care physicians to patients
is less than one physician per 3,500 patients. Virtually all states
contain areas that are medically underserved. HHS has designated over
80%-90% of some states as HPSAs. The list of HPSAs designated by HHS
fills over 90 pages of the Federal Register in small print.
Since 1996, states have been permitted, under federal immigration
laws, to sponsor up to 20 foreignborn, U.S.-trained physicians annually
to work in HPSAs and other medically underserved areas. They work in
these areas for three years. In exchange, they are granted the
opportunity to apply for permanent residence in the U.S. once they have
completed their work assignments. In the five years that the law has
been in existence, at least 43 states have established such programs,
thousands of physicians have participated, and hundreds of thousands of
Americans have benefited. The number of HPSAs has been reduced, but
only slightly. Allowing states the option of sponsoring 50 to 100
physicians annually would benefit many more Americans living in
medically underserved areas, and the extra cost of administering the
program would be minimal.
In 1999, Congress provided that certain foreign-born physicians who
work in medically underserved areas or for the Veterans Administration
for five years are eligible to apply for permanent residence through a
National Interest Waiver of the usual Labor Department requirements.
However, INS regulations, issued in September 2000, substantially
reduced the scope of the law. For example, while the law provides that
``any alien physician'' is eligible for such a waiver, the regulations
restrict the benefits of the law solely to physicians engaged in
primary care. Also, while the law allows county and municipal health
departments to write a letter certifying that the physician's work is
in the ``public interest'', the regulations require that the letter may
be written only by a state department of public health. The regulations
impose so many burdensome requirements upon employers of physicians as
to lead one to conclude that the INS is actively trying to restrict the
number of physicians who will be able to qualify for benefits under the
law. Before the regulations become final, INS should be informed of
something that every person that the agency naturalizes is required to
know: The function of the executive branch is to enforce the laws
written by Congress, not to amend those portions of the law with which
the executive branch disagrees.
The immigration laws do not classify all physicians who wish to
immigrate to the United States as ``foreign medical graduates''.
Persons who graduate from medical schools in Canada are not considered
to be foreign medical graduates. While foreign medical graduates need
to complete a medical residency in the U.S. and pass all three parts of
the U.S. Medical Licensing Examination (USMLE) prior to obtaining
permanent residence as a physician in the United States, Canadian
graduates are not subject to either of these requirements. Almost 50%
of Canadian medical graduates are primary care physicians, while in the
U.S. there is a critical shortage of primary care physicians.
Canadian physicians are entitled to obtain medical licenses through
reciprocity in 90% of U.S. states. However, an HHS regulation issued in
the early 1990s requires Canadian physicians to pass all three parts of
the USMLE examination as a condition of obtaining H-1B temporary
working status. It takes most persons 12 to 18 months to study and pass
all three parts of the USMLE examination. This regulation is outdated
and sets the federal immigration laws at loggerheads with state
licensing laws and with federal immigration laws which exempt Canadian
physicians seeking permanent residence in the U.S. from taking the
USMLE.
CONCLUSION
The United States is in the midst of a severe nationwide nursing
shortage, and our country's supply of physicians is distributed in such
a way that large areas of the U.S. are medically underserved. We also
suffer from an undersupply of primary care physicians.
While changes in immigration laws will not, in themselves, solve
the nursing crisis, the present immigration laws contribute to the
crisis by creating protectionist walls that make it difficult for U.S.
employers to hire foreign-born nurses. To help ease the nurse shortage,
Congress should restore the system of temporary visas for registered
nurses that worked so well between 1952 and 1995.
While there is no shortage of physicians comparable to the nursing
shortage, much of the United States is classified as medically
underserved by the Department of Health and Human Services. Also, the
U.S. suffers from a severe shortage of physicians who practice primary
care. Medical residency programs in the U.S. train thousands of
international medical graduates. Congress has wisely decided to allow a
portion of these physicians to remain in the U.S. if they work in
medically underserved areas for a certain number of years. Such
programs should be expanded, and states, counties and municipalities
should all play a role in sponsoring physicians under federal
immigration laws. Also, our laws should encourage the immigration of
primary care physicians to the United States.
Thank you for permitting me to testify on such a critically
important subject.
Chairman Brownback. That is a very good and specific
recommendation to look at something we have done in the past,
Mr. Shusterman. Hopefully, we will have time for some questions
so I can ask you further about that.
Diana Sosne is the President of Local 1199 Northwest, and
Co-Chair of the SEIU Nurses Alliance, out of Seattle,
Washington. Thank you very much for joining us and for being
here today.
STATEMENT OF DIANE SOSNE, CO-CHAIR, SERVICE EMPLOYEES
INTERNATIONAL UNION NURSE ALLIANCE, AFL-CIO, SEATTLE,
WASHINGTON
Ms. Sosne. Thank you, Senator Brownback, and I am one of
those older nurse statistics on your chart.
I am speaking on behalf of over 1.4 million members of
SEIU, many of whom are immigrant health care workers, including
physicians. So I am going to speak to this from a slightly
different angle, but I think it is important to put all the
pieces together.
The nursing shortage is a complex problem and the solutions
are complex. It is important to note that there are available
nurses and other health care workers in this country who have
left hospitals and nursing homes because of the conditions
currently in hospitals and nursing homes. It is the short
staffing and things like mandatory overtime. People have left.
The proportion of registered nurses working in hospitals
declined from 68 percent in 1988 to 59 percent in 2000. It is
in a report and we will submit this to the committee. We just
did a national survey of nurses working in acute care
hospitals. Only 55 percent said they planned to stay in
hospitals until they retire.
So these are alarming statistics and I think we have to
look at what is underlying it because there are nurses and
health care workers who could be doing these jobs, but they are
leaving these institutions. And to just bring in immigrant
nurses on visas, they would face the same unsafe and poor work
environments and would not stay, we believe.
So we are interested in working with this Committee in
crafting a solution to this issue with the noted caution that
changes in immigration policy for nurses and other health care
workers not exacerbate the shortage by diverting attention away
from solving the root causes.
We are going to submit in testimony some specifics on
principles related to immigration policy. Where established
labor-management relationships exist, for example, we would
want a direct role in the labor certification process, and we
would want to ensure that immigrant workers be guaranteed all
labor protections, including whistleblower protections for both
quality patient care and labor rights.
I think that is just a very brief summary of what we wanted
to call your attention to today.
[The prepared statement and an attachment of Ms. Sosne
follow:]
Statement of Diane Sosne, RN, Service Employees International Union,
AFL-CIO, Co-Chair, SEIU Nurse Alliance
Thank you Senator Brownback and Senator Kennedy for allowing me to
testify at this hearing on behalf of the Service Employees
International Union.
My name is Diane Sosne, and I am registered nurse (RN) and co-chair
of SEIU's Nurse Alliance. Today I am speaking on behalf of the over 1.4
million members of the SEIU, 110,000 who are nurses and 120,000 nursing
home workers in our health care division. SEIU is committed to
achieving access to quality health care for all who live and work in
America--and quality jobs for all who dedicate their lives to caring
for others.
We are a nation of immigrants that has benefited from the talent
and expertise of immigrants in every occupation. Today countless
nurses, doctors, and other health care givers who have come from other
countries are working in the United States. SEIU has embraced these
dedicated workers. They are making our union stronger through their
diversity and energy, and they have joined our movement for quality
patient care.
We are proud of our SEIU immigrant members working in home
healthcare, nursing homes and hospitals. We are very aware of the
staffing crisis, because our members are working in health facilities
with too few staff, and too many patients with increasingly complex and
chronic health conditions. SEIU is uniquely qualified to be a partner
in the health care staffing dialog as the largest health care union.
SEIU's Committee for Interns and Residents (CIR) members are doctors
working in inner city hospitals, many of whom are in this country
through the H1-B visa program. Other SEIU members are health caregivers
in some of the toughest public hospitals in New York, New Jersey,
Washington D.C. and Los Angeles.
Hospitals today are expecting too few nurses to care for far too
many patients. That reality was confirmed by a recent national poll of
acute care RNs commissioned by the SEIU Nurse Alliance. In that survey,
more than one third of all nurses surveyed said that patients on their
units experience missed or delayed medication or treatments at least
once a week--Usually as a result of inadequate staffing.
If the problem were just too few nurses in this country, easing
immigration might make sense. But, since the root cause of the nursing
shortage isn't lack of nurses. Working conditions such as short
staffing are driving existing staff away from the profession.
Immigration is a bandaid to cover the real problem. Unsafe working
conditions diminish quality care for patients and make it unsafe for
nurses to practice. The risk of making fatal mistakes and putting
licenses on the line is causing nurses to better than leave the
profession in record numbers. In fact, nurses who come to this country
on visas will be facing the same unsafe, poor work environments that
are driving tens of thousands of American nurses out of hospitals.
The proportion of the nation's registered nurses working in
hospitals declined from 68 percent in 1988 to 59 percent in 2000, as a
result of industry and occupation restructuring.
The same problems exist in nursing homes where nine in 10 homes
lack staffing that is needed to provide high quality care, according to
the Health Care Financing Administration (HCFA). The problem is not a
nurse aide shortage but a retention crisis lifting and bathing
patients, and low wages have combined to create 100 percent turnover
among nursing home caregivers each year on average. By the year 2020,
when the U.S. baby boomer generation will be in greatest need of care,
and a shortage of 400,000 nurses in the United States is projected.
We do not oppose Immigration as one approach to solving the nursing
shortage. But, the priority in our health care system should be to
attract and retain health caregivers. Today, only 55 percent of acute
care nurses plan to stay in hospitals until they retire. And yet, fully
68 percent say they would be more likely to stay in hospitals if
staffing levels in their facilities were adequate.
SEIU believes we can reduce our staffing shortage by increasing
funding and financial support for nurse and nurse aide education,
recruitment and retention by increasing wages and improving working
conditions. These kinds of initiatives should be implemented firs
before turning to immigration as the solution.
We can attract more American workers to the profession by removing
barriers and expanding the pool of potential health caregivers. We need
to change the complexion of nursing, we need to recruit more men, and
improve the racial and ethnic diversity. Finally, more emphasis should
be placed on welfare-to-work programs. Former welfare recipients could
be encouraged to choose helathcare as profession if Congress would
define post-secondary education programs as a qualified work activity.
However, we acknowledge that new caregiver recruitment and
education programs alone won't solve the problem. They will only treat
the sysmptons, not cure the disease. Unless we address the poor working
and quality patient care conditions plaguing our caregivers today, the
best we can hope for is a revolving door--with nurses and nurse aides
leaving hospitals and nursing homes as fast as they enter.
But I'm certain that all of our members--regardless of where they
come from--would agree that trying to solve the current nursing crisis
by bringing in more health caregivers fro around the world is a short-
sighted response. Regardless of nationality, the working conditions are
driving health care givers away from these jobs. We should not exploit
immigrant workers because conditions in this country may be better than
from where they came. Neither American nor foreign-born workers should
be subjected to these working conditions.
First of all, the nursing shortage is a worldwide phenomenon. As a
member of the global community, our nation should not draw trained
nurses away from poor countries that need them even more desperately
than we do.
Nor should we selectively adapt our immigration policies to cater
to the needs of one particular industry. What we really need is broad
reforms of our immigration laws. It's no secret that an estimated 9
million undocumented workers reside in the United States today. But
lesser known is the fact that because of the way our current laws work,
many of those people are actually working outside of their chosen
professions including health care professions. The time has come for
our nation to take a hard look at how best to protect the rights and
enhance the quality of life for everyone who lives and works in the
United States. SEIU as a member of the AFL-CIO is calling on Congress
to allow undocumented workers already in this country to be able to
legalize, (a copy of AFL-CIO resolution is attached to this testimony).
Rather than seeking stopgap measures to ease the crunch in the
short term, we need to fix the system for the long term. Fundamentally,
the only real and lasting solution to the growing nursing shortage lies
in the establishment of safe staffing standards in our hospitals and
nursing homes.
We must make safe staffing a requirement for all hospitals
receiving federal taxpayer dollars. We must make sure the federal
government is providing adequate oversight of our hospitals. We must
protect the rights of patients and the rights of health care workers
who blow the whistle on problems with patient care. We must take action
immediately to stop the hemorrhaging--by banning mandatory overtime for
nurses, just as we do for train engineers, air traffic controllers,
truck drivers, and other occupations where public safety is at risk.
Perhaps most of all, we must make sure that workers have a voice in
the decisions that affect their professions, their jobs, and their
livelihoods. We must involve nurses in the process of designing
solutions to the staffing crisis. Any employment based immigration
program must involve workers--not just employers.
Understaffing in our nation's hospitals is a serious problem. It's
a problem that will only be solved through the joint efforts of public
officials, nurses, and hospital administrators. And it's a problem that
must solved if we are to guarantee quality care for patients--and keep
skilled nurses in our hospitals.
SEIU, IS COMMITTED TO THE FOLLOWING PRINCIPLES:
The creation or expansion of temporary or permanent
visa programs for health care professionals must be evaluated
in light of a comprehensive analysis of the projected needs of
the health care industry and the adequacy of measures to train
and retain American nurses.
Immigrant health caregivers should meet existing
licensing and certification requirements.
Immigrant workers should be allowed to stay in this
country under any visa program. We should not seek immigrant
workers from around the world with the expectation of using
them to solve our workforce problem temporarily, and then
sending them home. It should be the worker's choice to stay.
Where established labor/management relationships
exist, unions must have a direct role in the labor
certification process--such as a joint labor/management visa
application process.
Immigrant workers must be guaranteed all labor
protections, including whistleblower protections for both
patient quality care and labor rights.
SEIU is concerned that the health care industry is
seeking a quick fix by asking for renewal of the H1-A visa
program, which was widely abused by temporary agencies and
nursing homes.
SEIU also opposes efforts by industry to relax the H1-
B or expand H1-C requirements so that more RN's and health
caregivers workers in general can be made eligible.
SEIU supports legalization of undocumented workers
currently living and working in this county. It is time for
undocumented workers already working paying taxes and living in
the U.S. to come out of the shadows and work legally without
fear. Many are already working in home health care industry,
nursing homes and hospitals. Many other undocumented workers
could work in these professions because of their foreign
training but are not allowed to work because of their
undocumented status.
We look forward to working with this committee to crafting a
comprehensive solution to the shortage of health care professionals
facing this country. Thank you again for allowing me to testify.
I look forward to answering you questions.
AFL-CIO RESOLUTION 2/16/2000
The AFL-CIO proudly stands on the side of immigrant workers.
Throughout the history of this country, immigrants have played an
important role in building our nation and its democratic institutions.
New arrivals from every continent have contributed their energy,
talent, and commitment to making the United States richer and stronger.
Likewise, the American union movement has been enriched by the
contributions and courage of immigrant workers. Newly arriving workers
continue to make indispensable contributions to the strength and growth
of our unions. These efforts have created new unions and strengthened
and revived others, benefitting all workers, immigrant and native-born
alike. It is increasingly clear that if the United States is to have an
immigration system that really works, it must be simultaneously
orderly, responsible and fair. The policies of both the AFL-CIO and our
country must reflect those goals. The United States is a nation of
laws. This means that the federal government has the sovereign
authority and constitutional responsibility to set and enforce limits
on immigration. It also means that our government has the obligation to
enact and enforce laws in ways that respect due process and civil
liberties, safeguard public health and safety, and protect the rights
and opportunities of workers. The AFL-CIO believes the current system
of immigration enforcement in the United States is broken and needs to
be fixed. Our starting points are simple:
Undocumented workers and their families make enormous
contributions to their communities and workplaces and should be
provided permanent legal status through a new amnesty program.
Regulated legal immigration is better than unregulated
illegal immigration.
Immigrant workers should have full workplace rights in
order to protect their own interests as well as the labor
rights of all American workers.
Labor and business should work together to design
cooperative mechanisms that allow lawabiding employers to
satisfy legitimate needs for new workers in a timely manner
without compromising the rights and opportunities of workers
already here.
Labor and business should cooperate to undertake
expanded efforts to educate and train American workers in order
to upgrade their skill levels in ways that enhance our shared
economic prosperity.
Criminal penalties should be established to punish
employers who recruit undocumented workers from abroad for the
purpose of exploiting workers for economic gain.
Current efforts to improve immigration enforcement, while failing
to stop the flow of undocumented people into the United States, have
resulted in a system that causes discrimination and leaves unpunished
unscrupulous employers who exploit undocumented workers, thus denying
labor rights for all workers.
The combination of a poorly constructed and ineffectively enforced
system that results in penalties for only a few of the employers who
violate immigration laws has had especially detrimental impacts on
efforts to organize and adequately represent workers. Unscrupulous
employers have systematically used the I-9 process in their efforts to
retaliate against workers who seek to join unions, improve their
working conditions, and otherwise assert their rights.
Therefore, the AFL-CIO calls for replacing the current I-9 system
as a tool of workplace immigration enforcement. We should substitute a
system of immigration enforcement strategies that focuses on the
criminalization of employer behavior, targeting those employers who
recruit undocumented workers from abroad, either directly or
indirectly. It should be supplemented with strong penalties against
employers who abuse workers' immigration status to suppress their
rights and labor protections. The federal government should
aggressively investigate, and criminally prosecute, those employers who
knowingly exploit a worker's undocumented status in order to prevent
enforcement of workplace protection laws.
Chairman Brownback. I appreciate your doing that and also
your constructive comments about what we may be able to do.
Hopefully, again, I can ask you some questions later.
Bradley D. LeBaron is President and CEO of Uintah Basin
Medical Center in Roosevelt, Utah, and he is here on behalf of
the American Hospital Association.
STATEMENT OF BRADLEY D. LEBARON, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, UINTAH BASIN MEDICAL CENTER, ROOSEVELT, UTAH, ON
BEHALF OF THE AMERICAN HOSPITAL ASSOCIATION
Mr. LeBaron. Good afternoon, Mr. Chairman. I am Brad
LeBaron, CEO of Uintah Basin Medical Center, in Roosevelt,
Utah, and Chairman of the Utah Hospital Association. I am here
today on behalf of the American Hospital Association's nearly
5,000 hospital health system and network health care provider
members. Uintah Basin Medical Center, my home, is a rural 42-
bed not-for-profit facility in northeastern Utah.
Health care is, of course, at a critical juncture. Along
with increased regulation and decreased reimbursement, a
shortage of qualified workers, especially nurses, greatly
threatens our mission to care for our Nation's men, women and
children.
Our current and daunting nursing shortage is unlike any
that we have seen in the past. Nurses provide critical bedside
care in the inpatient setting. They also serve as teachers,
patient advocates and mentors. As current nurses retire, as you
have shown us, fewer are in training to replace them. One study
estimates that 50 percent of the registered nurse workforce is
older than 50 years.
Over the past several years, it has become increasingly
difficult for hospitals to attract and recruit qualified
nurses. Our current vacancy rate at Uintah Basin Medical Center
is 7 percent for RNs and 6 percent for LPNs. Three years ago,
we virtually had no vacancies.
A sobering outcome of our recent board strategic retreat is
that for our hospital our board has deemed the No. 1 strategic
priority for the next 3 years being that of health manpower
issues. Along with others, we are looking at a variety of
options to retain our current nursing staff and to attract new
nursing personnel.
In the last 18 months, we have increased RN wages by 17
percent. We have increased our scholarship funding for current
employees and people who are not affiliated with the hospital
presently by 50 percent. We sponsor job fairs, et cetera.
As we develop long-term strategies to expand our workforce,
we face immediate shortages across the country. Using foreign
nurses on a temporary basis is one of the few options that we
have available to us to address this immediate need.
Until 1995, temporary visa programs existed to help with
episodic shortages, but currently only the H-1C visa program,
as has been described, is available. But it is woefully
inadequate and fraught with complicated conditions. Given the
program's strict criteria, at most only 14 of the Nation's
5,000 hospitals and health care facilities even qualify, and
none of these are in the State of Utah.
In conclusion, to pretend that we can take care of the
nursing shortage domestically is a disservice to our patients.
Our current crisis must be solved through a collaborative
approach to develop short- and long-term strategies. Revising
our immigration policies is one way to apply a salve to help
alleviate this growing wound afflicting health care.
Thank you.
[The prepared statement of Mr. LeBaron follows:]
Statement of Bradley D. LeBaron, President and Chief Executive Officer,
Uintah Basin Medical Center on Behalf of the American Hospital
Association, Washington, DC
Mr. Chairman, I am Bradley D. LeBaron, president and chief
executive officer of the Uintah Basin Medical Center (UBMC), in
Roosevelt, Utah, and chairman of the Utah Hospital Association. I am
here today on behalf of the American Hospital Association's (AHA)
nearly 5,000 hospital, health system, network and other health care
provider members. We are pleased to have the opportunity to testify on
the health care worker shortage crisis, an issue of great concern to
the health care community and the general public.
UBMC is a rural 42-bed health care, 501 c3, not-for-profit,
independent facility in northeastern Utah. We employ over 300 health
care personnel, and care for more than 2,100 inpatients per year,
serving a population of 25,000. We are a sole community provider with a
broad range of health care services including general acute medical
services, home health and hospice.
Mr. Chairman, health care is at a critical juncture. Along with
increased regulation and decreased reimbursement, a shortage of
qualified workers greatly affects our ability to care for the nation's
men, women and children. If nurses, physicians, respiratory therapists,
pharmacists and scores of others who take care of the nation's ill and
injured are not available, the collective mission of health care
providers will be threatened.
This crisis affects every aspect of health care delivery, from
direct patient care given by a nurse or respiratory therapist to
prescriptions filled by a pharmacist and home health care visits from a
nurse's assistant. The most visible of these, though, is a lack of
nurses to provide the critical bedside care needed in the inpatient
setting for today's patients, as well as those who require care in the
future. The average age of our nation's nurses providing care today is
45, and the average age of our nursing faculty continues to rise. As
these caregivers, teachers and mentors retire from the workforce, fewer
health care workers are in training to take their places, as evidenced
by the continuing nationwide decline in nursing school enrollment.
Factor in the 78 million baby boomers who will begin retiring in the
next 10 years, and our resources will be stressed even further. Demand
for health care will exceed capacity.
Over the years, hospitals and health systems have repeatedly
experienced temporary shortages of personnel, such as during the
nursing shortages of the 1960s, 1970s and 1980s. Following a redesign
of work place and personnel policies in response to these shortages--
and often a recession in the general economy--the situation improved in
most communities as previously-trained nurses were re-employed in
hospitals and health facilities.
Our current and daunting shortage is unlike any we have seen in the
past. While traditional factors such as an expanding national economy,
overall low unemployment rates and competitive compensation packages
are contributing to the current shortage, new demographics and other
factors are exacerbating the situation.
Most nurses work in hospitals, but many are turning away from this
traditional health care setting. Hospital patients are now older,
sicker and require a greater intensity of care from nurses and other
personnel. Nurses, and everyone involved in health care delivery, are
spending an increasing amount of time on paperwork and less time on
patient care. Women, who traditionally comprise the majority of nursing
personnel, are finding other career options that are less physically
demanding, less stressful and come with a higher rate of pay. Baby
boomers, who make up a large part of the health care workforce, are
approaching retirement. Nursing school and training programs are
experiencing annual declines in enrollment, and some have even closed.
Even if more students could be recruited into nursing schools, there is
now a shortage in qualified nursing faculty, and the average age of
nursing school professors is 52.
Over the past several years it has become increasingly difficult
for hospitals to attract and recruit qualified nurses. Rural hospitals
face this dilemma every day. At UBMC, we have 58 registered nurses (RN)
and 38 licensed practical nurses (LPN) on staff; however, our current
vacancy rate is at 7 percent among RNs, and 6 percent among LPNs. Three
years ago, we had virtually no nursing vacancies. Our current vacancy
rate is the worst it has been in my eightyear tenure with the hospital.
In fact, earlier this month, we just barely averted losing three nurses
to urban centers for better pay.
Along with other health care facilities around the country, we are
looking at a variety of options to retain our current nursing staff and
attract new nurses. In the last 18 months alone, we have increased RN
wages by 17 percent, in an effort to compete with larger health care
facilities in other areas of our state.
UBMC is one of the few rural institutions with a nurse's education
program in our town. We have partnerships with the baccalaureate
nursing programs at Utah State University branch campus and Weaver
State University, as well as with the LPN training at Uintah Basin
Applied Technology Center. We graduate 20 nurses a year from these
programs. But even last year, 14 nurses left the area to work in other
areas of the state and country.
The public's demand for the highest quality patient care at the
lowest possible cost has come face to face with the tightest labor
market in the past 30 years. For example, government projections state
that by 2020 we will face a shortfall of about 300,000 registered
nurses.
Mr. Chairman, your colleagues in the Senate and the House, along
with health care leaders, are working to find long-term solutions to
the challenges we face. Hospitals and health care provider institutions
across the nation are looking at retooling their retention and
recruitment strategies, offering bonuses and providing other
incentives, such as tuition reimbursement and child care, to attract
and retain qualified health care workers to their facilities. The AHA
formed the Commission on Workforce for Hospitals and Health Systems,
asking a diverse population of stakeholders to work together and craft
recommendations and bold solutions for this national dilemma. The
commission represents hospital administrators, caregivers, academia,
business leaders, frontline nurses, organized labor and many others. In
addition, the Utah Hospital Association has formed the UHA Workforce
Taskforce, to address what is becoming a critical shortage of nurses
and other health care staff--in Utah.
Yet even as we develop long-term strategies to expand our
workforce, we face immediate shortages across the country. It takes a
minimum of two years for a student to complete a professional nursing
program with an associate's degree. Unfortunately, even if we were able
to recruit scores of men and women into our nursing education programs,
we still face daunting shortages. Using foreign nurses on a temporary
basis is one of the few options that may help us address this need.
According to Peter Buerhaus et al. (Implications of an Aging Registered
Nurse Workforce, JAMA, June 2000), ``immigration of RNs educated
outside of the United States may provide the most feasible strategy.''
We would be able to fill many critical clinical nursing positions in an
expedited manner.
Until 1995, temporary visa programs existed to help address
episodic nursing shortages. For example, the now defunct H-1A visa
program was used specifically to allow RNs licensed in their own
countries to enter the U.S. temporarily. However, the current shortage
we are facing is dramatically different, and we need both short- and
long-term approaches. Currently, only one temporary program exists, the
H-1C visa program for nurses. While I am certainly not an expert on
immigration law, I can tell you that even this option is woefully
inadequate, and fraught with complicated conditions, making it almost
impossible for hospitals to use this as a remedy for their current
troubles.
In 1999, Congress created the temporary three-year H-1C visa
program, a narrowly crafted measure to enable health care facilities in
underserved communities to recruit critically needed health care staff,
specifically nurses, from foreign countries. Under this program, 500
foreign nurses per year may enter the country. But this program is
almost useless. In order for a hospital to take advantage of this
program and sponsor a foreign nurse into our country, the facility must
have a minimum of 190 beds; their patient population must be comprised
of at least 35 percent Medicare and 28 percent Medicaid recipients;
their geographic location must have been designated as a Health
Professional Shortage Area as of March 30, 1997; and the facility must
meet strict labor certification requirements. Currently, given these
rigid criteria only 14 out of our country's more than 5,000 hospitals
even qualify for this program. And to my knowledge, not one registered
nurse has entered the U.S. under the H-1C program.
The H-1B visa program is another program that, on paper, would
appear to assist hospitals in bringing in foreign nurses on a temporary
basis. Unfortunately, this is not the case. Last year, Congress amended
the H-1B visa program, enabling skilled professionals with an employer-
sponsored job in the U.S. to enter the country and work for up to six
years. The requirements also state that in order to qualify for an H-1B
visa, the individual must have a college degree and the job must
require a bachelor's degree as a minimum level of entry. RNs generally
do not qualify under the H-1B program since most hospitals and other
employers who hire nurses do not require nurses to hold baccalaureate
degrees. Another disadvantage is that these visas are limited in number
each year, and the quota is generally reached early in the year. This
illustrates the crucial need to reform our current immigration policies
as it relates to nurses.
Some of my colleagues in Utah have attempted to work through these
complex and nonsensical immigration rules, in order to fill critical
positions in their facilities. It took one hospital almost 18 months to
obtain a foreign nurse to care for their patients using the EB-3 (green
card) visa program. Another facility in southeastern Utah is having a
difficult time obtaining approvals to immigrate a foreign medical
technician. But most rural facilities cannot afford the cost or time
delay to obtain foreign nurses or other foreign health care workers.
CONCLUSION
To pretend that we can take care of the nursing shortage
domestically is a disservice to patients. This is a problem that cannot
be solved by hospitals or any one group alone. And it cannot be solved
solely by the federal government. It demands a multi-tiered,
collaborative approach among all affected parties to develop short- and
long-term effective strategies and solutions to meet the health care
needs of today and tomorrow.
Revising our immigration policies toward foreign-born nurses is one
way to apply a salve to this growing wound afflicting our health care
system.
We have a critical shortage of women and men who are willing to
serve in health care. This will only get worse, unless we work together
to craft solutions that will allow us to continue our calling of
providing compassionate care to all.
Thank you, Mr. Chairman.
Chairman Brownback. Thank you very much, Mr. LeBaron.
Ruth E. Levine is a senior health economist at the World
Bank here in Washington, D.C.
Ms. Levine, thank you very much for joining us.
STATEMENT OF RUTH E. LEVINE, SENIOR HEALTH ECONOMIST, WORLD
BANK, WASHINGTON, D.C.
Ms. Levine. Thanks very much. As you said, I am a senior
health economist with the World Bank. My name is Ruth Levine,
but the work that I am going to talk about was done several
years ago when I was a researcher at the Urban Institute.
With two colleagues at the Urban Institute, Tamara Fox and
Sarah Danielson, I studied the impact of the Immigration
Nursing Relief Act of 1989, the H-1A program, on the nurse
labor market in the Miami-Ft. Lauderdale area. This was part of
a five-city study funded by the U.S. Department of Labor.
Using statistical analyses and in-depth interviews, we
tried to find out whether INRA allowed health care providers
adequate access to foreign labor, while at the same time
protecting the interests of U.S. workers. What did we find out?
First, we found out that the entry of foreign-trained
nurses under the H-1A program did not harm U.S. workers'
interests. There is no evidence that the increased access to
the foreign labor under INRA had negative short-term effects on
wages, benefits or working conditions in area hospitals, and
about half of the hospitals in Miami-Ft. Lauderdale used the H-
1A program.
This was because H-1A nurses actually made up quite a small
proportion of registered nurses and were widely distributed in
the labor market both across institutions and in specialty
areas. In addition, and contrary to some common beliefs, we
found that foreign nurses weren't paid less than U.S. nurses
and were not exposed to worse working conditions, did not
concentrate in certain shifts, and so forth.
The presence of foreign nurses had little chance of
affecting RN wages or working conditions over the long term.
This is again because of the small numbers of foreign nurses in
the labor market and the fact that nurse wages are not much
affected by supply factors. It is really the demand side that
counts when it comes to nurse wages, such as insurance
reimbursement policies and the dynamics of the health care
industry.
With respect to other possible negative effects of foreign
nurses such as problems with patient care, communication, or
the image of nursing as a foreigner's occupation, none of these
was evident. The typical foreign-trained nurse is more
experienced than nurses coming out of training programs in the
U.S. and has a tremendous commitment to the profession. A
standard certification process for nurses, in combination with
State licensing exams, is effective for quality assurance.
Many of the respondents said that hiring foreign nurses
actually increased the ability of hospitals in the area to
respond to a diverse patient population. The U.S. nurses
themselves often the cited the fact that there were more hands
on deck as a positive effect of the ability of the facilities
to hire foreign nurses. These findings were echoed in the other
metropolitan areas that were studied.
If I have a little bit of additional time------
Chairman Brownback. Yes, 1 minute.
Ms. Levine. Our second and final conclusion was that the
INRA regulations were fundamentally ineffective. They were
little more than a bureaucratic exercise. Hospitals filing
attestations with the Department of Labor to permit them to
hire the H-1A nurses viewed the process simply as government
paperwork. They left it largely to an attorney to take care of
filling out the form and that was it.
The regulatory language was ambiguous, leaving a lot of
room for interpretation. So the key terms like ``vacancy
rate,'' ``prevailing wage,'' ``timely and significant steps to
recruit and retain'' simply were undefined and had in the end
very little meaning. We found a large variety of ways that
hospitals were defining these terms and no follow-up on the
part of the Department of Labor to see what the variation was.
It is safe to say that nothing in the law, its regulation
or enforcement actively protected U.S. workers. But at the same
time, there really wasn't anything to protect them from. As I
said earlier, the foreign-trained nurses were doing no harm to
the U.S. workers in the short or the long term.
Finally, there may well be a role for legislation in
ensuring that the labor market works with respect to nurses'
wages and working conditions. But on the basis of our study, it
appears that trying to do this through the regulatory
provisions in immigration legislation really has no benefits.
So the foreign nurses did no harm and the bureaucratic
requirements in the legislation basically did no good.
[The prepared statement of Ms. Levine follows:]
Statement of Ruth E. Levine, Senior Health Economist, World Bank
Thank you for inviting me here today to discuss one aspect of the
nursing shortage: the immigration of foreign-trained nurses.
My name is Ruth E. Levine, and I am currently a senior health
economist at the World Bank, although the work I will speak about today
was conducted while I was a researcher at the Urban Institute several
years ago.
As you know, there have been periodic shortages of registered
nurses since at least World War II. While each crisis period has its
own features, there is much to be learned by looking back a bit in
time.
Our last major nursing shortage was in the late-1980s. At that
time, about 11 percent of nursing positions in acute care general
hospitals were vacant, and about three-quarters of all hospitals
reported problems filling posts. Urban centers were most severely
affected, primarily in the Northeast, Southern Florida and the West
Coast.
One of the several strategies used by hospitals during critical
shortages has been the recruitment of nurses trained overseas-
primarily, but not exclusively, from the Philippines. In 1989, largely
in response to the needs of some large hospitals in New York City,
Congress passed the ``Immigration Nursing Relief Act'' (INRA), which
created a special temporary H-1A visa category for RNs. Its regulations
included several provisions to reduce potential negative effects of
foreign labor.
About 6,000-7,000 nurses were granted H-1A visas in each year that
INRA was in effect. While nurses remained on the Immigration and
Naturalization Service's Schedule A (as a shortage occupation) after
INRA ended in 1995, the number foreign-trained nurses entering the
country declined significantly.
More recently, Congress passed the ``Nursing Relief for
Disadvantaged Areas Act of 1999,'' which created the H-1C visa category
for nurses, strikingly similar to the H-1A designation. Once again, the
legislation arose because of concerns from a small number of hospitals;
and once again regulations attempted to ensure protection of U.S.
workers.
With two colleagues at the Urban Institute (Tamara Fox and Sarah
Danielson), and funded by the U.S. Department of Labor, I studied the
impact of INRA-the 1989 legislation-on the nurse labor market in the
Miami-Ft. Lauderdale area. This was part of a five-city study. Using
statistical analyses and indepth interviews, we tried to find out
whether INRA allowed health care providers adequate access to foreign
labor, while at the same time protecting the interests of U.S. workers.
What did we find, that may be of interest to you today?
FIRST, WE FOUND THAT THE ENTRY OF FOREIGN-TRAINED NURSES DID NOT HARM
U.S. WORKERS' INTERESTS.
There was no evidence that the increased access to foreign labor
under INRA had negative shortterm effects on the wages, benefits or
working conditions in area hospitals. This was because H-1A nurses made
up a very small proportion of registered nurses, and were widely
distributed in the labor market (both across institutions and specialty
areas). In addition, and contrary to common beliefs, we found that
foreign nurses were not paid less than U.S. nurses, and were not
exposed to worse working conditions.
The presence of foreign nurses also had little chance of affecting
RN wages or working conditions over the long term. This is again
because of the small numbers of foreign nurses in the labor market, and
the fact that nurse wages are not much affected by supply factors.
Wages are much more affected by other forces in the market, including
insurance reimbursement policy and the dynamics of the health care
industry.
With respect to other possible negative effects of foreign nurses,
such as problems with patient care, communication or the image of
nursing as a ``foreigners' occupation,'' none of these was evident. The
typical foreign-trained nurse is more experienced than nurses coming
out of training programs in the U.S., and has tremendous commitment to
the profession. A standard certification process for foreign nurses,
administered by the Commission on Graduates of Foreign Nursing Schools,
in combination with state licensing exams, is effective in quality
assurance.
In the in-depth interviews, most respondents said that hiring
foreign nurses actually increased the ability of hospitals to respond
to the needs of a diverse patient community. And fellow U.S. nurses
consistently recognized that having some extra ``hands on deck'' made
their lives better. It is, after all, nurses themselves who suffer most
when there is a critical shortage.
These findings were echoed in similar studies in four other labor
markets (Boston, Tampa, New York City, and Los Angeles). An earlier
study by Booz Allen Hamilton also no negative effects of foreign
nursing labor on wages.
SECOND, WE FOUND THAT THE INRA REGULATIONS WERE INEFFECTIVE--LITTLE
MORE THAN A BUREAUCRATIC EXERCISE.
Hospitals filing attestations with the U.S. Department of Labor to
permit them to hire H-1A nurses viewed the process simply as government
paperwork. The regulatory language was ambiguous, leaving a lot of room
for interpretation. For example, the terms ``vacancy rate,'' and
``timely and significant steps'' to recruit and retain U.S. nurses were
left undefined, and ultimately meant nothing. In addition, we found
that virtually none of the attesting hospitals complied with the basic
pubiic information requirements of INRA.
It is safe to say that nothing in the law, its regulations or
enforcement actively ``protected'' U.S. workers. The provisions were
weak. But at the same time, as I stated earlier, there really was
nothing to protect them from: the presence of foreign nurses was not
doing any harm.
In the future, it would make sense to minimize regulatory
paperwork. Any attestation process should focus on ensuring that the
public is informed about which hospitals are hiring new foreign
entrants, perhaps through low-cost vehicles like the Internet, as well
as nursing journals.
There may well be a role for legislation in ensuring that the labor
market ``works'' with respect to nurses' wages and working conditions,
but on the basis of our research, it appears that trying to do this
through regulatory provisions in immigration legislation has no
benefits.
Thank you for your attention to my presentation. I would be happy
to answer any questions you might have.
Chairman Brownback. Dr. Wear, the Chair of the American
Psychological Association Committee on Rural Health, and
President of Wear and Associates, out of Seattle, Washington.
Thank you for being here. I advise you I have been buzzed
for another vote, so we have a couple of minutes here, if you
can get it in in that period of time. I apologize again, but it
is just the day we are in.
STATEMENT OF DOUGLAS M. WEAR, CHAIR, COMMITTEE ON RURAL HEALTH,
AMERICAN PSYCHOLOGICAL ASSOCIATION, SEATTLE, WASHINGTON
Mr. Wear. Chairman Brownback, the American Psychological
Association appreciates the opportunity to testify today at
this hearing on rural and urban health care needs.
I am Dr. Doug Ware, a clinical psychologist from Seattle,
Washington, and I also formerly practiced for 15 years in
Buffalo, Wyoming. I chair the APA Committee on Rural Health
which coordinates work on this Association priority.
Psychologists provide prevention and treatment services for
mental health and substance abuse problems, as well as services
that treat the behavioral components of acute and chronic
physical disease. The APA has committed significant resources
to addressing the behavioral health care needs of people living
in rural and frontier communities, where behavioral health care
providers and services are very often in short supply.
For example, at this time there are almost 800 mental
health professional shortage areas in the United States, and 70
percent of them are located in rural and frontier areas. This
designation entitles communities to participate in a Federal
program called Loan Repayment administered by the National
Health Service Corps. This Federal agency is responsible for
operating various programs to encourage health providers to
practice in underserved communities.
This year, the Senate Health, Education, Labor and Pensions
Subcommittee on Public Health will be taking up the
reauthorization of the National Health Service Corps. We
recommend reauthorization of this valuable program and the
expansion of the capacity of the National Health Service Corps
to recruit and place psychologists and other behavioral health
care practitioners through the provision of both scholarship
and loan repayment.
The themes of service delivery, funding issues, personnel
shortages and interdisciplinary care, and the ability to
provide behavioral health care services in rural communities
are some of the underlying themes that are found in a new
publication entitled ``Behavioral Health Care in Rural and
Frontier Areas: An Interdisciplinary Handbook'' that has
recently been completed by the APA Committee on Rural Health.
This does reference all professions, including nursing and
several other medical professions, so it is not just the
psychological work.
Also, in September 2000 the APA and National Rural Health
Association jointly conducted a congressional briefing on an
important APA report entitled ``The Behavioral Health Care
Needs of Rural Women.''
Chairman Brownback. Dr. Wear, I am going to have to rush
out of here shortly. Do you have a couple of recommendations
from your Association that you think we ought to look at? I
want to make sure that we get those.
Mr. Wear. Yes. I am on the last paragraph. Principally, the
reauthorization of the National Health Care Service Act, and
then these other documents have other recommendations. We can
certainly forward those to the committee.
We are working in our realm certainly with trying to
provide the kind of training, and we do surveys to make sure we
are staffing as well as we can rural areas, sharing some of the
similar problems with nurses. We will continue to develop and
advocate for those kinds of programs.
So I will let you go with that.
[The prepared statement of Mr. Wear follows:]
Statement of Douglas M. Wear, Ph.D., Chair, Committee on Rural
HealthAmerican Psychological Association
Chairman Brownback and Senator Kennedy, the American Psychological
Association appreciates the opportunity to testify today at this
hearing on rural and urban health care needs. I am Dr. Doug Wear, a
clinical psychologist from Seattle, Washington, formerly a practitioner
in Buffalo, Wyoming, and I chair the APA Committee on Rural Health,
which coordinates work on this association priority.
The APA has committed resources to addressing the behavioral health
care needs of individuals residing in rural and frontier communities
where behavioral health care providers and services are often in short
supply. For example, at this time there are almost 800 Mental Health
Professional Shortage Areas in the United States, and 70% of them are
located in rural and frontier areas. This designation entitles
communities to participate in a Federal program called Loan Repayment,
administered by the National Health Service Corps. This federal agency
has responsibility to operate various programs, including Loan
Repayment, to encourage health providers to practice in underserved
communities. These include rural communities that have immigrant groups
who have arrived recently. Examples of these groups include Southeast
Asians and Central Americans who have emigrated to escape political
oppression and severe economic hardship.
This year the Senate Health, Education, Labor & Pensions
Subcommittee on Public Health will be taking up the reauthorization of
the National Health Service Corps. We recommend the reauthorization of
this valuable program and the expansion of the capacity of the Corps to
recruit and place psychologists and other behavioral health
practitioners through the provision of both scholarships and loan
repayment.
Psychologists can provide prevention and treatment services for
mental health and substance abuse problems, as well as services that
address the behavioral components of acute and chronic physical
disease. Recent immigration to rural and frontier areas of the U.S. has
introduced new challenges to the provision of healthcare in these
communities. In addition to the adjustment problems of adapting to a
new culture, recent immigrants often have special needs that need be
addressed. These include anxiety, depression, and substance abuse
problems that are the sequelae to these disorders. It is significant
that mental disorders are often accompanied by co-occurring disorders
that include addicitions. It is known that 70% of individuals treated
for substance abuse have a lifetime history of depression.
Some immigrants I have worked with as a psychologist are
experiencing language difficulty, culture shock, isolation, and stress
which exacerbates any existing mental or substance disorders they might
have and sets them up for failure if they asre vulnerable. An
appreciation and understanding of cultural issues on the part of the
psychologist is essential to really be effective. Developing a system
of social support is an essential step. In the best of circumstances,
there are mentors from the immigrant's own country that have preceded
him or her to serve this important role. So often, though, this is not
the case, especially in frontier communities where the numbers are very
small. Then, it might be a local family, a school class, a church
group, or a community organization that will end up attempting to help
the new immigrant family acclimate to their new home. Often, group
sessions are very helpful to begin helping people get comfortable with
each other and find common ground.
Thus I'm gratified that th APA Council adopted a resultion in 1999
finding, in part, ``Mental health-related issues, particularly stree
associated with trauma, acculturation to language, economics, health
care, education, religion, as well as encounters with both individual
and institutional bias, are faced consistently by foreign-born
residents of this country; and differential degrees of acculturation
within immigrant families can negatively affect family communication
and even evoke conflict, particularly between partents and their
adolescent offspring.''
I have often found a need to work with not only the immigrant and
his/her family but also with members of the typically very
heterogeneous community where the immigrant persons or families reside.
They too are stressed, sometimes prejudiced, and unfamiliar with other
cultures and value systems. Likewise in the schools or work and
community settings, rural psychologists often can take an educative and
facilitative role in bridging cultures and finding ways to bring people
together.
Thus I'm gratified that the APA Council adopted a resolution in
1999 finding, in part, ``Mental health-related issues, particularly
stress associated with trauma, acculturation to language, economics,
health care, education, religion, as well as encounters with both
individual and institutional bias, are faced consistently by foreign-
born residents of this country; and differential degrees of
acculturation within immigrant families can negatively affect family
communication and even evoke conflict, particularly between parents and
their adolescent offspring.''
I have often found a need to work with not only the immigrant and
his/her family but also with members of the typically very
heterogeneous community where the immigrant persons or families reside.
They too are stressed, sometimes prejudiced, and unfamiliar with other
cultures and value systems. Likewise in the schools or work and
community settings, rural psychologists often can take an educative and
facilitative role in bridging cultures and finding ways to bring people
together.
The APA Rural Health Initiative works in conjunction with state
psychological associations, federal and state agencies, national health
professional organizations with an interest in rural populations, and
the U.S. Congress and state legislatures to advance the cause of
immproved behavioral healthcare for rural Americans.
The APA Office of Rural Health is responsible for the expansion of
practice opportunities for psychologists to provide behaviroal
healthcare in rural areas. It staff and works closely with the APA
Committee on Rural Health to administer projects to accomplish this
responsibility. Much of the work that has been accomplished by the
Rural Health Initiaive appears on the Web site RuralPSYCH (http://
www.apa.org/rural/), a resource center that provides information on
policy, practice and training on rural behavioral healthcare. This is
accomplished through storing (for easy download) important reports,
cross-links to other worthwhile sources of behavioral healthcare, and
announcements of projects that have been completed.
In order to ensure that sufficient numbers of psychologists are
trained and prepared to meet the behaviral healthcare needs of rural
and frontier populations, including those of recent immigrants, the APA
conducts a periodic survey of psychology training programs and
internships. The result of the survey is displayed on RuralPSYCh. The
APA Rural Initiative cooperates with academic institutions developing
new psychology doctoral training programs to serve rural communities.
The newest one is located at Marshall University in Huntington, West
Virginia. It is a program totally dedicated to training psychologists
who will practice in rural West Virginia by having all of the clinical
practica for students conducted in rural settings reinforces this
objective.
The APA Rural Initiative has also addressed the shortage of
psychologists in rural areas by encouraging the participation by
psychologists in the Loan Repayment program of the National Health
Service Corps. The program enables psychologists to provide services in
communities located in Mental Health Professional Shortage Areas. Many
of these areas have migrant workers in addition to recent immigrants.
This is an imperative for healthcare providers to deliver care in a
culturally competent manner.
To achieve cultural competence, behavioral health providers in
rural areas must have an understanding of and an appreciation for
cultural differences and similarities within, among and between groups.
This requires the acquisition of academic and interpersonal skills that
will increase understanding and willingness and an ability to draw on
cultural and community-based values, traditions, and customs to work
with people from the community in developing interventions,
communications, and other prevention and treatment options that address
behavioral health problems. The goals of cultural competence include:
identifying social, economic, political, and religious
influences affecting immigrant and ethnic minority populations:
understanding the impact of interaction between social
institutions, culture, and ethnicity on the delivery of
behavioral health services:
understanding the importance of language, culture, and
ethnic influences in rural communities and the importance of
the oral tradition in some cultures;
recognizing the impact of the provider's own culture,
sensitivity, and awareness as it affects his or her ability to
deliver health care, especially with recently arrived
immigrants; and
understanding alternative treatment sources (e.g.,
Curanderes in Hispanic culture) in some immigrant and ethnic
cultures.
The theme of cultural competence and the ability to provide
behavioral healthcare services to recently arrived immigrant groups in
rural communities is one of the underlying themes that is found in
every chapter of a new publication titled Behavioral Healthcare in
Rural and Frontier Areas: An Interdisciplinary Handbook that has
recently been completed by the APA Committee on Rural Health. APA Books
will publish this volume in late 2001 or early 2002. In addition to the
work of the Rural Initiative, the APA has developed Guidelines for
Providers of Psychological Services to Ethnic, Linguistic and
Culturally Diverse Populations.
In September 2000, the APA and National Rural Health Association
jointly conducted a Congressional briefing on an important report
completed by the APA Rural Initiative titled The Behavioral Healthcare
Needs of Rural Women. This report covered many healthcare problems
encountered by recently arrived women immigrants and called for action
to provide the behavioral healthcare services they need. See http://
www.apa.org/rural/ruralwomen.pdf
The APA Rural Health Committee and Office of Rural Health are
sensitive to the need to provide behavioral healthcare services to
rural and frontier residents in the U.S. and are mindful of the special
circumstances newly arrived immigrant groups encounter on their
arrival. In approaching the task of ensuring high quality mental and
behavioral healthcare for rural and frontier populations in the United
States, we will continue to develop and advocate for programs that are
culturally competent and sensitive to the special needs of immigrant
populations who have arrived recently.
Chairman Brownback. Now, I understand that you want to
extend this program. Does that include within it anything
regarding visas for immigrant nurses?
Mr. Wear. I don't know about that. It incentivizes people
to practice in rural areas and helps with repayment programs. I
don't know, I am not sure. We can look into that and get back
to you. I would be happy to do that.
Chairman Brownback. If I could, I invite several of you, if
you would, to stay around and discuss with the staff. Ms.
Sosne, you mentioned that there are a couple of criteria that
you were particularly interested in, and, Mr. Shusterman, you
cited that 1952 program that was in place. That sounds like an
interesting starting point to discuss somewhere we have been
before. We can learn or improve or correct from program that as
we would look at this today.
To a number of people whom I have talked to, it seems a key
problem that we have is of health care workers, and it is at
several different levels. We have been addressing it somewhat
in terms of physicians. For example, in Ulysses, Kansas, Grant
County Hospital has five physicians--two from Canada, one from
Pakistan, one from Syria, and one from Trinidad. This is the
physician community in Ulysses, Kansas. Now, maybe there are
another one or two that I don't know about, but I met with
them. They have model U.N. meetings and they are great; they
provide excellent health care services.
I hope that we could work together to see that everybody's
interests and needs are met. I know your Association represents
and workes very carefully with a number of nurses who have been
foreign trained, and that you want to take care of those needs
and interests.
I hope, as well, that the other members of the panel could
help us in puttin this forward. and suggesting if there are any
follow-up studies that would be needed. Ms. Levine, the study
that you cited, I believe, was a 1998 study?
Ms. Levine. No. It came out in 1994.
Chairman Brownback. 1994. I'd like to know whether we need
to update the data or not, or if the conditions have changed in
that period of time. I want to see whether we should do that,
or if there are other members who want to research different
angles of this because this is a big issue. It has a
significant impact on a number of people.
I have to go back over and vote. If you would like to stay
around and visit with the staff, I would invite you to do so
please advise us and keep us informed of your thinking and how
you might form this issue.
Thank you for traveling great distances, many of you.
The hearing is adjourned.
[Whereupon, at 3:28 p.m., the Subcommittee was adjourned.]
Submissions for the record follow:]
SUBMISSIONS FOR THE RECORD
Statement of Reed L. Russell, Akin, Gump, Strauss, Hauer & Feld,
L.L.P., Attorneys at Law, Washington, DC
MEMORANDUM
ELIMINATION OF THE CAP ON ADJUSTMENT OF STATUS FOR ASYLEES UNDER
SECTION 209(B) OF THE IMMIGRATION AND NATIONALITY ACT
This memorandum advocates changing an arbitrary and ill-considered
immigration statute, section 209(b) of the Immigration and Nationality
Act (``INA ''). Because of this statute, over 50,000 aliens lawfully
admitted to the United States under grants of asylum are currently
waiting to have their applications far lawful permanent residence
status processed and, therefore, effectively being denied the
opportunity to become active and productive members of our society.
Under section 209(a) of the INA, an individual lawfully admitted to
the United States as a refugee or through a grant of asylum must remain
in the country for one year before he or she may apply to adjust his or
her status to that of a lawful permanent resident. 8 U.S.C.
Sec. 1159(a). However, there is an additional cap under section 209(b)
that limits to 10,000 the number of asylees that may adjust status each
year to become permanent residents, regardless of the number granted
asylum. 8 U.S.C. Sec. 1159(b).
The cap had no practical impact before 1995, because the number of
asylees never reached 10,000.\1\ However, in 1995, the INS imposed
significant reforms in the asylum process to counteract rampant fraud
in applications and to streamline procedures. See United States DOJ,
INS, Asylum Reform: Five Years Later (Feb. 1, 2000) (``Asylum
Reform''). As a result, significantly fewer applications are filed each
year but the number of grants now exceeds 10,000 annually. See id.
Because that number exceeds the cap imposed by section 209(b), the
statute has created a significant backlog in the processing of
applications for permanent residence. Estimates from the fNS as of
March 31, 2001 place the backlog at 57,680 persons. Thus, given the
10,000 person per year cap, someone granted asylum today will not be
able to adjust his or her status to that of a permanent resident for at
least six years.
---------------------------------------------------------------------------
\1\ The cap was raised from 5,000 to 10,000 in 1990. See Pub. L.
101-649, Sec. 104(a)(1) (1990).
---------------------------------------------------------------------------
These individuals already have passed through a rigorous process
that allows for grants of asylum only to those persons who come from
countries with truly intolerable human rights conditions and who pass a
criminal background investigation. See 8 C.F.R. Sec. 213. However,
because of the delay in obtaining permanent residency, these lawfully
admitted aliens often face significant difficulty obtaining employment.
Moreover, they suffer the continued anxiety of not knowing whether they
will be allowed to remain in the United States based on their asylum
status.\2\ Finally, this delay also postpones these individuals'
integration into society as citizens, because they cannot apply for
citizenship until five years after obtaining lawful permanent residency
status.
---------------------------------------------------------------------------
\2\ Asylum status can be terminated in some circumstances even
after it has been formally granted. See 8 U.S.C. Sec. 1158(c)(2)(A).
---------------------------------------------------------------------------
This statute is irrational and unsupportable for at least three
reasons. First, although it properly allows the processing of refugees
based on the rational criteria of the number admitted each year, the
statute inexplicably denies the same common-sense treatment to asylees
by imposition of the 10,000-person cap. This is so even though the
basic standard for admission is the same for refugees and asylees: an
inability or unwillingness to return to the home country due to
``persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.'' 8 U.S.C. Sec. 1101(a)(42). Thus, the system for
admitting refugees encourages their integration by allowing a refugee
to obtain permanent residency within two years of arrival,\3\ while it
delays that process for six years for individuals who receive grants of
asylum, even though the basis for granting them admission to the United
States could very well be identical. This situation is nonsensical at
best and punitive at worst and it should be eliminated.
---------------------------------------------------------------------------
\3\ The asylee must wait one year before applying for the
application and then the application process takes approximately one
year once it begins.
---------------------------------------------------------------------------
The second reason the cap should be eliminated is that it creates
an unnecessary administrative backlog and delays the orderly processing
of applications for permanent residence. Individuals granted asylum
have already been screened through a rigorous process where they must
submit testimonial and/or documentary evidence supporting their claims
and respond to questions by a trained asylum officer in an interview
that often lasts at least one hour and in some cases two or more hours.
Indeed, in some cases asylees must prove the bona fides of their claims
in immigration court. Moreover, applicants must submit to a criminal
background investigation. As evidence of the rigorous standards
applied, a February 2000 report shows that even after reforming the
system to eliminate most fraudulent claims, the INS still grants less
than 40 percent of applications for asylum. See Asylum Reform, supra.
Finally, the arbitrary cap creates an unnecessary strain on INS's
scarce resources, which could be applied to enforcement or other
immigration needs. Instead, these resources are allocated to manage a
backlog of thousands of asylees that otherwise would be moving through
the system in an orderly fashion. Individuals granted asylum already
have established themselves as credible and free of a criminal
background. Forcing them to wait beyond the statutory one-year
probationary period to adjust status serves no apparent purpose and, in
fact, creates an unnecessary strain on public resources. Moreover, we
are not the first to reach this conclusion.
In 1997, the United States Commission on Immigration Reform, a
bipartisan commission of policy makers and immigration experts, issued
a comprehensive report on recommended changes in the immigration law.
See United States Commission on Immigration Reform, U.S. Refugee
Policy: Taking Leadership (June 1997) (``Taking Leadership'').\4\ Among
those recommendations was an elimination of the 10,000-person cap
imposed by section 209(b). See id. at 35. Indeed, the Commission also
advocated elimination of the statutory one-year waiting period in favor
of granting permanent resident status to all individuals when they
received a grant of asylum. See id. at 34.\5\
---------------------------------------------------------------------------
\4\ The Commission was formed in 1990 under the Immigration Act of
1990. Its members have included the following: Archbishop of Boston
Bernard Cardinal Law (first Chairman); Barbara Jordan (second
Chairwoman); Shirley Mount Husfstedler (third Chairwoman), former Ninth
Circuit Judge and Secretary of Department of Education; Professor
Lawrence Fuchs, former Executive Director of the Select Commission;
Michael Teitelbaum of the Alfred P. Sloan Foundation, Richard Estrada,
columnist for the Dallas Morning News; Harold Ezell, former INS
Regional Commissioner; Robert Hill, immigration attorney; Warren
Leiden, Executive Director of the American Immigration Lawyers
Association; Nelson Merced, Massachusetts State Legislator, and Bruce
Morrison, former Chairman of the House Subcommittee on Immigration,
Refugees, and International Law.
\5\ One commission member advocated a two-year conditional
permanent resident status. Taking Leadership at 34 n.* However, no one
attempted to defend the current system.
---------------------------------------------------------------------------
With respect to the elimination of the 10,000-person cap, the
Commission provided two bases for its recommendation: (i) the
inevitable backlog that would occur because of the excess of asylum
grants over 10,000 per year and (ii) the rigorous asylum process. See
id. at 35.
The Commission is seriously concerned that under the current
system [the excess of asylum grants over 10,000] will result in
an unnecessary backlog of adjustment applications. We strongly
reiterate our belief, stressed in our 1995 report on legal
immigration, that the federal government should not manage
immigration policy by backlogs and waiting lists. Given the
recent reforms in the asylum system and the rigorous standard
applied in granting asylum, numerical ceilings on adjustment
are neither necessary nor good public policy.
Id.
The third reason for eliminating the cap, one that is related to
the second, is that the statute is adverse to a basic common-sense
principle: that the United States government should seek to integrate
lawfully admitted aliens into the society as soon as possible so that
they may participate and contribute to their full potential. As the
Commission stated in advocating removal of both waiting periods:
``Elimination of the delay in adjustment would greatly reduce continued
uncertainty and instability in the lives of asylees even after their
initial approval and would enable asylees and their families to
integrate into the U.S. in a timely fashion.'' Taking Leadership at 35.
Individuals granted asylum receive a work authorization card
allowing them to obtain employment. However, the INS requires that the
work-authorization card be renewed annually until the asylees become
lawful permanent residents.\6\ As a result, many employers are
reluctant to hire these individuals because of the uncertainty
surrounding their residency status. Thus, the combination of the one-
year statutory waiting period and the multi-year administrative backlog
makes it more difficult for asylees to gain long-term employment and
become productive members of society. This result is counter to the
common-sense principle that the United States government should be
trying to make it easier, not more difficult, for willing and able
individuals to be fully employed.
---------------------------------------------------------------------------
\6\ Although the regulation provides for a work-authorization card,
we are aware of no language in the regulation or the statute providing
a basis for the INS's requirement that the card be renewed annually.
See 8 C.F.R. Sec. 208.7 (work authorization).
---------------------------------------------------------------------------
Furthermore, the delay operates in contravention to the well-
settled policy of integrating new immigrants into society as productive
citizens. A lawful permanent resident has to wait five years before
becoming eligible to apply for United States citizenship. This five-
year period cannot begin for an asylee until he or she obtains lawful
permanent residency status. Thus, by delaying the time for asylees to
become lawful permanent residents, the statute also delays the time for
them to become naturalized citizens and, thus, prevents them from fully
integrating into American society.
Adding to the dilemma, many asylees arrive with families to
support. Yet, because of the waiting period, these individuals are
forced to support their families through transient and most likely
menial jobs for several years. The effect is to impose an unnecessary
hardship on individuals and families who are in the United States only
because they have suffered from gross injustices in their home country.
In short, section 209(b) (i) irrationally and inexplicably treats
one class of lawfully admitted aliens worse than others similarly
situated, (ii) causes unnecessary administrative delays, and (iii) is
counterproductive and contrary to the interests of the United States.
We propose several options to remedy this glaring inequity:
1) Adopt the recommendation of the United States Commission on
Immigration Reform and grant permanent resident status to
asylees, eliminating both the one year statutory waiting period
for refugees and asylees as well as the 10,000 person cap for
asylees; or
2) Amend section 209 to delete section 209(b), thus eliminating
only the 10,000 person cap on asylees; or
3) Enact special legislation providing for an elimination of
the waiting period for all those individuals who have received
grants of asylum and been present in the United States for at
least one year as of the date the legislation.
Granting more timely permanent resident status to asylees would not
increase the number of lawful immigrants in the United States or impose
additional burdens on scarce public resources. Asylees already are
lawfully in the country and eligible to remain for an indefinite period
of time. Rather, granting asylees permanent resident status would have
the salutary effect of allowing them to seek long-term employment and
assimilate into their communities more quickly, thereby hastening their
integration into society as full participating and contributing
members. We hope that you will see the obvious logic of our position
and lend your support to remedy this situation.
Statement of Robert D. Evans, Director, American Bar Association,
Governmental Affairs Office, Washington, DC
Dear Senator Brownback:
I am writing to thank you for holding this hearing on asylum,
expedited removal and unaccompanied immigrant children and to share the
ABA's views.
Backlogged asylum and immigration court systems in the 1990's led
to the enactment of legislation and streamlining policies that lack
important procedural safeguards and endanger refugees seeking asylum.
Instead of safety, shelter and fair process, many asylum seekers who
reach our shores today, including unaccompanied immigration children,
find themselves deprived of liberty with inadequate access to legal,
and they are summarily deported and barred from appealing to the
courts. These reforms have turned our ports of entry into paragons of
efficiency, but parodies of justice.
EXPEDITED REMOVAL
Since April 1, 1997, INS inspectors at U.S. land borders,
international airports and sea ports have possessed extraordinary power
to make and execute on-the-spot deportation decisions.\1\ Asylum
seekers who arrive in the U.S. after stressful and fatiguing journeys
must prove a ``credible fear of persecution'' in order to avoid
immediate expulsion and to be allowed to apply for asylum. There is no
right to have a lawyer present or a qualified interpreter to assist in
the screening process and no involvement of a judicial or quasi
judicial officer.
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\1\ Under the 1996 law, an arriving individual who lacked travel
documents or who was suspected of carrying invalid documents had the
option of withdrawing his or her request for admission to the United
States or appearing before an immigration judge for a formal exclusion
hearing. Any person who feared returning to his or her home country
could apply for asylum The person also had a right to be assisted by a
lawyer at no expense to the government. If the immigration judge denied
entry, or asylum, and ordered exclusion, the person could appeal to the
Board of Immigration Appeals and could later obtain federal court
review through a writ of habeas corpus. Although a person was subject
to detention, it was not uncommon for the INS to release (``parole '')
an asylum applicant while proceedings were pending. A final exclusion
order carried a one-year bar on returning to the United States.
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After an initial inspection at the border today, a person who
arrives with no documents, false documents, documents belonging to
another individual or valid documents believed to have been obtained
through misrepresentation is referred to an INS officer for secondary
inspection. The secondary interviews are conducted in secured areas of
the ports of entry where nongovernmental observers are denied access
and where representation by counsel is not a recognized right. The
secondary inspection officer can either issue a removal order or, at
the officer's option, give the individual a chance to withdraw his or
her request for admission. A removal order bars the individual from
returning to the United States for five years unless he or she receives
a waiver from the Attorney General. Withdrawing, when permitted, allows
the individual to choose his or her destination and imposes no penalty
to returning lawfully at any time in the future. Deportation orders
previously had been made only by immigration judges after a formal
hearing at which the alien could be represented by counsel.
An inadmissible person who expresses a fear of returning to his or
her home country must be given a brief explanation of U.S. asylum law
and asked three specific questions to determine why the individual left
his or her home country and whether he or she has fears or concerns
about returning there.\2\ If the person appears to be seeking asylum,
the officer will have the person detained for a ``credible fear'' for
an interview by an INS asylum officer, and provide a list of assistance
programs that he or she may wish to consult.\3\ If the asylum officer
subsequently finds credible fear of persecution, the individual will be
allowed to apply for asylum. If the officer does not find a credible
fear of persecution, the individual may ask for de novo review by an
immigration judge. Although the right to counsel has been recognized in
all other proceedings conducted by immigration judges, the Department
of Justice has not recognized a right to counsel in these matters.
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\2\ These questions are: (a) Why did you leave your home country or
country of last residence? (b) Do you have any fear or concern about
being returned to your home country or being removed from the United
States? (c) Would you be harmed if you were returned to your home
country or country of last residence? INS Form 1-867A (4-1-97).
\3\ Credible fear of persecution is defined to mean ``that there is
a significant possibility, taking into account the credibility of the
statements made by the alien in suport of the alien's claim and such
other facts as are known to the officer, that the alien could establish
eligibility for asylum under section 208.'' INA Sec. 235(b)(1)(B)(v),
(8 U.S.C. 1230(b)(1)(B)(v)).
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This expedited removal authority is exercised by about 4,900 INS
officers, at nearly 300 ports of entry. More than 83,000 removal orders
were issued in FY 2000. During that same time frame about 3,000 people
who expressed fears of returning to their home countries were referred
to the asylum corps for credible fear interviews--less than 10
individuals per day. This is about half of the number who had sought
asylum at the nation's borders before the law went into effect and may
suggest that bona fide asylum seekers are being turned away.
The ABA, along with human rights organizations and refugee service
agencies, has concerns about whether this expedited removal authority
is being exercised properly. We have received reports that admissible
individuals are being denied entry to the United States and that
refugees fleeing persecution are not making it through the inspections
process to a credible fear interview.
One reason for concern was raised by findings in a 1998 GAO report.
See Illegal Aliens: Changes in the Process of Denying Aliens Entry to
the United States (GAO, March 1998). Although the INS inspectors
generally followed the prescribed procedures, reviews at all five
locations visited by the GAO ``indicated inconsistent compliance with
the procedures.'' In four locations, INS inspectors did not document
asking at least one of the three questions required for determining if
a credible fear interview is necessary up to 18 percent of the time. In
a subsequent study, INS inspectors did not document asking at least one
of the required questions up to 16 percent of the time. Illegal Aliens:
Opportunities Exist to Improve the Expedited Removal Process (GAO,
September 2000). The GAO also was not able to determine whether or not
the INS inspectors are correctly or incorrectly making exclusion
decisions in the first place and did not investigate reports of abuses
during the inspections processes, including denial of food, phone and
bathroom privileges, and verbal abuse.
Another reason for concern stems from an in-depth study by Janet
Gilboy, a researcher at the American Bar Foundation, who examined the
work of immigration inspectors at ports of entry prior to expedited
removal. In her study, ``Deciding Who Gets In: Decisionmaking by
Immigration Inspectors,'' 25 Law & Society Review 571, 587 (1991),
Gilboy reported that immigration inspectors at ports of entry often
make judgments based on a traveler's nationality:
Little or no individualized inspection occurs; presentation of
the country passport suffices to judge what type of individual
is requesting admission. This handling implicitly reflects
inspectors' notions about the individual's limited credibility,
that is, lack of trustworthiness of statements or documents.
Because the INS has consistently rebuffed efforts by independent
researchers to study the expedited removal process, academics and
nongovernmental organizations are trying to monitor the process through
other means. The most extensive study is being conducted by The
Expedited Removal Study (ERS) based at the University of California,
Hastings College of the Law. See Karen Musalo, The Expedited Removal
Study: Report on the First Three Years of Implementation of Expedited
Removal, Center for Human Rights and International Justice, University
of California, Hastings College of Law (May 2000). ERS' preliminary
analysis suggest that women and non-English speakers may have greater
difficulty navigating through the expedited processes than better-
educated men.
In addition, the Lawyers Committee for Human Rights has documented
numerous cases of people fleeing religious persecution, ethnic
violence, political repression, and human rights abuse being wrongly
turned away from the United States. They also have documented incidents
involving asylum seekers who narrowly avoided summary removal or who
were mistreated by the INS. Is this America? The Denial of Due Process
to Asylum Seekers in the United States (October 2000). The ABA has
received reports about asylum seekers who were returned to dangerous
countries before anyone even knew they had reached the United States.
The ABA also has received information about asylum seekers whose
deportations were intercepted before they suffered a similar fate.
These reports combined with the secrecy that surrounds the
expedited removal process, the absence of independent observers,
anecdotal evidence regarding mistreatment by INS inspectors and the
decline in asylum applications by arriving aliens, fuel concerns that
these expedited processes frustrate claims by genuine refugees.
For these reasons, the ABA strongly supports changing the current
process to provide procedures that give individuals a fair chance to
consult with counsel and present their cases, as proposed in the
Refugee Protection Act introduced by you and Sen. Patrick Leahy last
year. We also support the elimination of the one-year asylum deadline
which impedes claims by bona fide asylum applicants who are fearful or
ignorant of the opportunity to apply for asylum, or who lack the
resources to do so.
The ABA also makes the following recommendations pertaining to the
exclusion process:
1. Removal decisions should be made by immigration judges, not law
enforcement officers.
Facilitating the entry and exit of people and goods at the U.S.
ports of entry is one of the most important functions of the INS.
According to the INS, there are more than 500 million legal admissions
annually - more than 1 million per day. Less than 1 percent of
individuals seeking admission are denied entry. Given the greater than
99% admission rate, many immigration advocacy organizations and border
communities view inspections predominantly as a ``service'' activity
which should be performed by adjudications personnel, not law
enforcement officers. Exclusion orders, moreover, should be entered
only by impartial adjudicators, preferably immigration judges,
following a formal hearing which conforms to accepted norms of due
process. The INS reorganization process may provide an opportunity to
re-examine the use of expedited removal and to reestablish these
principles.
2. The expedited removal program should not be expanded.
The current law permits the Attorney General to use expedited
removal for anyone ``who has not affirmatively shown, to the
satisfaction of an immigration officer, that the alien has been
physically present in the United States continuously for the 2-year
period immediately prior to the date of the determination of
inadmissibility.'' INA section 235(b)(1)(A)(iii)(II). Although Attorney
General Janet Reno declined to implement that provision, the statute
remains on the books and the implementation decision has been delegated
to the sole discretion of the INS Commissioner. 8 CFR 235.3(b)(ii). A
designation by the Commissioner is effective upon publication in the
Federal Register and is not subject to judicial review. We have many
reservations about the current program and even more about the inherent
dangers in giving similar powers to the Border Patrol or expanding
expedited removal to the interior of the country.
3. Asylum seekers who have passed the ``credible fear'' screening
process should be released from detention.
Today there is no guarantee that asylum seekers who have passed
credible-fear screening will be released from detention. The statute
mandates that a person who is inadmissible be taken into custody and
held pending a final determination of credible fear. Similar provisions
in the law before 1996 were construed as permitting the Attorney
General to ``parole'' [i.e. release] the applicant pending a final
decision in his or her case. While the INS does not dispute that
arriving asylum seekers can still be paroled once credible fear has
been established, such decisions have been delegated to the INS
district directors, who may be reluctant to do so. It is not uncommon
for a district director to deny release of a person who has passed the
credible fear test, or even been granted asylum by an immigration
judge, with the explanation that there is ``no compelling humanitarian
reason'' to release the individual.
The ABA has numerous concerns about the growing reliance on
immigration detention because it deprives individuals of their liberty
and significantly impacts on their ability to secure and maintain a
working relationship with counsel. Today, there are more than 20,000
detention beds available to the INS; 55 percent are rented from state
and local jails. Although the lack of access to phones, family, counsel
and legal information in these places is well-documented, and there is
nearly universal agreement that criminal and non-criminal detainees
should not be commingled, the INS continues to rely on these criminal
facilities. In lieu of exercising the parole option as a matter of
public policy, the INS detains asylum seekers in whatever facilities
are available, including in local jails with criminals. The INS also
insists that release determinations remain in the hands of the district
directors, rather than be delegated to the asylum officers who conduct
the credible fear interviews. As a result, traumatized asylum seekers
continue to be detained with criminals in isolated penal institutions.
We have repeatedly suggested that the INS release people who have
passed the credible fear screening test and establish alternatives to
detention. The objectives are achievable and would be a significant
improvement over the status quo.
UNACCOMPANIED IMMIGRANT CHILDREN
Immigrant children who arrive in the United States unaccompanied by
their parents or other legal guardians are a special concern of the
ABA. Some of these children are escaping political persecution, while
others often are fleeing war, famine, abusive families, or other
dangerous conditions in their home countries that may give rise to
asylum claims. When they arrive, these children generally have no legal
status or support system and face a stressful and confusing ordeal.
Most detained children speak little or no English and are rarely
aware of their rights under U.S. law. They frequently are detained in
secure facilities, sometimes commingled with juvenile offenders.
Although some children may have U.S. family members to whom they can be
released, many will remain in INS custody while their cases proceed
through the immigration court system. This practice is inconsistent
with nationally recognized juvenile justice standards and with the
United Nations Convention on the Rights of the Child, which prohibits
the detention of children except as a measure of last resort. Over
4,600 unaccompanied children were detained in over 90 different
locations last year.
Although the consequences of deportation may be quite dire, U.S.
immigration laws do not allow for the appointment of counsel at the
government's expense, even for these vulnerable children. Immigration
court is an adversarial setting, presided over by an immigration judge
and prosecuted by an experienced INS trial lawyer. These cases decide
the child's future: statistics from the Department of Justice show that
asylum seekers are four times more likely to be granted asylum when
represented. These children, however, frequently have no choice but to
represent themselves. Nervously they wait, with very little
understanding of the law and legal process, for their turn to appear
before an immigration judge. When these children are later deported, as
many inevitably are, there is virtually no follow up to find out what
happens to them.
The ABA is working with state and local bars across the country to
help these children secure pro bono representation. For many years the
ABA, State Bar of Texas and American Immigration Lawyers Association
have co-sponsored ProBAR, a project that brings in volunteer lawyers to
represent many children who are detained in a remote location in rural
South Texas by the INS. Still, the numbers of unaccompanied children
who are detained nationwide exceeds available volunteers.
This is an anomaly in our justice system that urgently needs
legislative reform. The ABA strongly supports enactment of legislation
such as S.121, introduced by Sen. Dianne Feinstein, to provide every
child in this situation with a court-appointed attorney to speak for
that child in court and to assist him or her in applying for relief
under U.S. law. The ABA also strongly supports creating an independent
office within the Department of Justice with an oversight role to
ensure that children's interests are respected at all stages of
immigration processes and while in immigration custody. We further
recommend that incarcerated children automatically receive custody
redetermination hearings before immigration judges (even if not
specifically requested) and be placed in the ``most family-like
setting'' when they cannot be released to family members or other
appropriate adults.
The ABA is committed to the principle that aliens who are facing
removal from the United States have a right to fundamental due process
and other constitutional protections. The current expedited removal
procedures do not comport with due process principles or respect the
right to counsel. The ABA also believes that all children within our
borders must be treated fairly by our laws and justice system,
regardless of their immigration status.
We thank you for bringing these issues to the attention of the
American public and look forward to assisting you as you work to enact
legislative reforms this session.
Statement of Commission on Graduates of Foreign Nursing Schools,
Philadelphia, PA
The Commission on Graduates of Foreign Nursing Schools (``CGFNS'')
submits the following statement for the record of the hearing on Rural
and Urban Health Care Needs.
SUMMARY:
CGFNS takes no position on whether additional foreign nurses should
be admitted as part of the response to the current U.S. nursing
shortage. If the Congress decides to admit additional foreign nurses,
however, then the American public must be assured that the foreign
workers are competent. In order to achieve this goal: (1) the INS's
current waiver of the screening mechanism for temporary foreign health
care workers should be immediately rescinded, and (2) this screening
mechanism should apply in full measure to any additional foreign
healthcare workers admitted into the United States.
BACKGROUND:
CGFNS is an immigration neutral, non-profit, internationally
recognized leader in the education, registration and licensure of
healthcare professionals worldwide. CGFNS protects the public in
relation to evolving healthcare policies and standards of professional
practice for migrating healthcare professionals. Its mandate is to
evaluate the credentials and to test the knowledge and English language
proficiency of internationally educated nurses and other healthcare
workers who seek to practice in the United States. The International
Commission on Healthcare Professions (``ICHP'') is a division of CGFNS
that was launched in 1996 to administer its Visa Screen program, which
is a congressionally mandated screening program for foreign healthcare
workers seeking an occupational visa in the United States. The
International Consultants of Delaware, Inc. (``ICD''), also a division
of CGFNS, is nationally and internationally recognized as an expert in
the field of international education. Established in 1977, ICD is a
credentialing agency which evaluates international education documents
and provides their U.S. equivalents.
NURSING SHORTAGES AND QUALIFIED FOREIGN NURSES.
CGFNS takes no position on whether additional foreign nurses should
be admitted into the United States as part of a strategy to address the
current U.S. nursing shortage. If the Congress decides to admit
additional foreign nurses, however, then the American public must be
assured that the foreign workers meet appropriate standards.
CGFNS believes that, as the healthcare industry reacts to the
nursing shortage, existing licensure and quality assurance requirements
may be shortchanged. It is imperative that, in the efforts to expand
the foreign nurse workforce, the health care industry and policy makers
retain the ``checks and balances'' of licensure and certification to
ensure that high-quality care is provided to our sick.
State licensing authorities would tell you that fraudulent
documents, academic credentials, and licenses are a major challenge to
their mandate of protecting the public. Identity theft is a growing
problem, as technology appears to facilitate fraud and challenge
detection. The challenge is multiplied when foreign languages,
different academic regimes, and varying professional standards and
licensure requirements are added to the mix. Those charged with
protecting the public health and safety know that quality assurance is
time consuming and labor intensive.
In addition to detecting outright fraud, professional competency
must be measured. Pursuant to Section 343 of the 1996 immigration law,
CGFNS reviews the foreign education of the health-care worker to ensure
that it is comparable to that of a U.S. healthcare worker. In the area
of nursing, for example, CGFNS verifies that the applicant completed a
full secondary school education and that the applicant's professional
education is comparable to that of a first level general nurse (``RN'')
in the United States. CGFNS measures this in a variety of ways. An RN's
education must include four major components; medical-surgical nursing,
psychiatric nursing, obstetrics and gynecology and pediatrics. Language
proficiency must also be ensured. The need for appropriate written and
spoken English skills in the health care setting is critical to
ensuring communication of symptoms, treatment, informed consent and
disease prevention and promotion of information between patients, their
families and healthcare providers. Finally, CGFNS confirms that the
foreign nurse's license is active and unencumbered (i.e., that the
license remains valid and the individual has not been the subject of
professional discipline).
CGFNS recommends that the Committee be mindful of the quality
measures that have been mandated to ensure the health and safety of
patients who receive health care services from licensed health care
professionals. As the Urban Institute's study pointed out, the standard
certification process for foreign nurses in combination with the state
licensing exams has proven an effective quality assurance mechanism.
The public must be assured that those who are presented to them as
health care providers have the appropriate education to diagnose,
assess and provide treatment as needed and that such individuals are
licensed according to applicable professional standards. As the
industry grapples with the challenge of providing the quantity of
nurses presently in demand, we must not sacrifice quality.
lack of current certification process for foreign healthcare workers.
Current immigration law provides a thorough, adequate legal regime
for screening foreign healthcare workers prior to their entry into the
United States. This law was added by section 343 of the 1996
immigration law and is found at section 212(a)(5)(C) of the Immigration
and Nationality Act. Unfortunately, the INS has crippled this legal
regime by refusing to apply it to temporary foreign workers. INS claims
that it needs time to implement the section by regulation--but
approximately five years have passed and no temporary foreign health
care worker has been screened during this time. This is an unacceptable
passage of time during which the safety of U.S. healthcare consumers
has been at risk.
INS's refusal to follow the law requiring certification of
temporary foreign workers is all the more irrational given that it has
already implemented certification standards by regulation for permanent
foreign healthcare workers. See 8 CFR ' 212.15. Unqualified foreign
nurses or other healthcare workers can do just as much damage to U. S.
patients while in H-1B or H-1C status as they can while holding a green
card. CGFNS has sued the INS seeking to have its waiver of section 343
declared invalid, and we are currently awaiting the decision of the
U.S. District Court for the District of Columbia. If Congress decides
to admit additional foreign nurses, it should concurrently rescind
INS's waiver of the certification requirement in section 343 and apply
this safety screening to all foreign healthcare workers admitted on
occupational visas.
NURSING ASSISTANTS.
The suggestion that amnesty for undocumented health care workers
could produce a much-needed cadre of professional and paraprofessional
health care workers must be examined closely. Is there any data to
suggest that healthcare workers are a significant proportion of that
population? Certainly provision of amnesty to such workers should not
alter licensure and quality assurance requirements.
The need for certified nursing assistants in long-term care is
longstanding--as is the need for training and monitoring of these
important caregivers. CGFNS believes, however, that it would be
difficult to examine and certify the education and preparation of such
unlicensed caregivers from foreign nations. State boards of nursing and
health care agencies are having problems today certifying and tracking
U.S. trained nursing assistants, as presently required, for the
protection of the health and safety of those residing in our nursing
homes. Foreign-trained individuals in this profession should be
required to satisfy the same standards, but documenting compliance with
these standards--given that in most countries it is an unlicensed
profession--would be challenging, to say the least.
OTHER ISSUES.
One witness, Carl Shusterman, asserted that there is ``something
clearly wrong when. . .it is easier to obtain a working visa for a
fashion model than for a registered nurse.'' We adamantly disagree. It
should be harder to obtain a working visa for a registered nurse who is
on the front line providing health care and whose assessments,
communications and interventions affect the lives of patients. Without
casting aspersions on any other profession, nursing is a critical
occupation which can have profound consequences on the health and lives
of every American. There is every reason to be cautious regarding which
foreign nationals are admitted to practice this profession. To
paraphrase a recent Washington Post article on models and politicians,
we believe modeling and nursing are pretty separate.
Mr. Shusterman also stated that nurses and other healthcare workers
have complained about difficulties communicating with ICHP. CGFNS is
very cognizant of the nursing shortage, the large number of applicants
for U.S. visas from foreign healthcare workers, and the high volume of
recruitment of foreign healthcare professionals. We are presently
fielding 2500-3000 calls, 700 e-mails and 300 faxes per week from
nurses and other healthcare professionals--recruiters and employers -
regarding our services. We have rostered over 5700 nurses for our July
2001 exam--an increase of over 1000 from the March 2001 exam--and
expect similar numbers for November 2001. We regret any dissatisfaction
that any applicant for the certification processes has experienced. In
order to meet the service demands, we have hired additional staff,
expanded telephone and fax capacity and are upgrading our information
systems. We strive to provide quality service to applicants who require
our services. The credentials process is complex and labor intensive,
in order to ensure the accuracy and validity of the information that
consumers, nurses, universities, state boards of nursing and the INS
have come to rely on for the past 25 years. We do not object to
constructive criticism--instead we desire to know in what areas our
performance needs improvement so that we can make the needed changes.
We are confident that our service enhancements can handle existing and
future caseloads.
Thank you for your consideration of our views.
Statement of Ralston H. Deffenbaugh, Jr., President, Lutheran
Immigration and Refugee Service
I thank Sen. Brownback and the other Members of the Subcommittee on
Immigration for this opportunity to present testimony on our nation's
treatment of asylum seekers. As a religious refugee service agency,
Lutheran Immigration and Refugee Service (LIRS) is deeply concerned
about the prolonged detention of asylum seekers who are forced to flee
their homelands without proper travel documents. I take this
opportunity to present the response of a group of religious leaders who
have witnessed these detention practices just three days ago and put
forth two proposals for humane and cost-effective alternatives to
present practices.
On April 30 LIRS, in cooperation with Hebrew Immigrant Aid Society
and other faithbased service agencies, coordinated a tour for religious
leaders of the Wackenhut Detention Center in Queens. New York, near
John F. Kennedy Airport. These leaders, coming from Christian, Jewish,
Muslim, Buddhist and Hindu faiths, were shocked that the United States
would subject people seeking asylum who have no criminal convictions to
months and sometimes years of such harsh conditions. In the attached
joint statement following the tour, they call upon Congress and the
Administration to correct these practices.
Under current law, asylum seekers can be released on parole after
passing a ``credible fear'' screening shortly after their arrival. Yet,
thousands of asylum seekers are being unnecessarily detained, sometimes
for long periods, in detention centers and jails across the United
States. This costs taxpayers millions of dollars, and prolongs and
exacerbates the suffering of asylum seekers who have come here seeking
freedom. LIRS's attached proposal describes a humane and cost-effective
alternative that would enable INS to release 2,500 asylum seekers to
private nonprofit agencies. The model is based upon very effective
programs tested in several communities across the country, all of which
have appearance rates for all hearings of 93% or better. If Congress
appropriates $7.3 million for this program, we project that the
government will save a net $11.6 million through reduced detention
costs.
Lastly, I include LIRS's proposal for NGO legal orientation
presentations for immigration detainees. This is another ``tested and
proven'' program that helps to identify persons with meritorious claims
for relief, convinces those without legitimate cases to accept removal,
reduces tension and improves security in detention facilities and saves
the government money by making the judicial process more efficient and
reducing the need for prolonged detention. An appropriation of just
$2.8 million would allow this program to expand to 10 sites and save
the government $10 million.
I urge Congress to correct the policies and practices that lead to
the prolonged detention of asylum seekers and, in particular, urge the
Members of this Subcommittee to ask your colleagues on the Subcommittee
for Commerce, Justice and State Department Appropriations to fund these
two worthwhile programs.
Statement From Faith Representatives Following April 30 Tour of the
Wackenhut Detention Center
1As representatives of diverse faith traditions that lift up
hospitality to the stranger as a fundamental principle, we are deeply
troubled by the way our country is treating people who come to our
shores fleeing persecution in their homelands. Today, we call upon
Congress and the Administration to end policies and practices enacted
in 1996, which seriously undermine our nation's commitment to refugee
protection. We are particularly concerned about the impact of expedited
removal and detention on adults and children seeking asylum here.
Historically, our nation has been a beacon of hope and freedom for
the oppressed. Many of our ancestors fled religious and other
persecution and were welcomed here. Yet today, low-level officials have
the power to turn asylum seekers away at our borders through on the
spot, unmonitored interviews. Thousands of asylum seekers, including
children, are also imprisoned in INS detention centers and county jails
while they await decisions on their claims. Women, men and children who
have suffered torture and imprisonment, witnessed the murder of their
families and destruction of their homes, and endured long and dangerous
journeys to reach freedom find themselves behind bars. Some remain
there for months or even years, with little access to legal, social,
and spiritual care.
As a just and generous country that has traditionally stood for the
protection of human rights around the world, we can and must do better.
We urge Congress and the Administration to take immediate steps to
correct the policies enacted into law in 1996 that are causing such
severe human suffering.
Signed
The Rev. Dr. Stephen P. Bouman, Bishop of the Metropolitan New York
Synod of the Evangelical Lutheran Church in America; Member of LIRS
Board of Directors
Mr. Ralston H. Deffenbaugh, Jr., President, Lutheran Immigration
and Refugee Service--LIRS, Baltimore, Maryland
Imam Salihou Djabi, Timbucktu Interfaith Center, New York
The Rev. Dr. Bob Edgar, General Secretary of the National Council
of Churches, New York
Mr. Leonard Glickman, President, Hebrew Immigrant Aid Society--
HIAS, New York
Ms. Mala Kadar, Ilankai Tamil Sangam, an association of American
Tamils Tri-State Area
The Venerable Michael S. Kendall, Archdeacon for Mission Episcopal
Diocese of New York
The Bishop Ernest S. Lyght, Resident Bishop, New York Area, The
United Methodist Church
The Rev. John McCullough, Executive Director, Church World Service,
New York
Mr. C. Richard Parkins, Director, Episcopal Migration Ministries,
New York
Rabbi Dan Polish, Director of the Joint Commission on Social Action
of Reform Judaism, New York
Carol J. Fouke-Mpoyo, Chair, Riverside Church Sojourners Ministry
With Detained Immigrants, New York
Rabbi Arthur Schneier, Park East Synagogue, New York; President,
Appeal of Conscience Foundation; Member of HIAS Board of Directors
The Msgr. Kevin Sullivan, Chief Operating Officer, Catholic
Charities, Archdiocese of New York
The Right Rev. Orris G. Walker Jr., Bishop of the Episcopal
Archdiocese of Long Island, New York
Alternatives to Detention
OVERVIEW
The 1996 immigration laws drastically increased the number of
immigrants subject to mandatory detention. INS' daily detention
capacity has expanded from 8,279 beds in 1996 to approximately 20,000
today, and over 60% of those beds are in county jails. INS's detention
and removal budget is now over $1 billion. However, INS is still
detaining thousands of people who by law could be released. Two such
groups are asylum seekers without sponsors or family to care for them
and people whose removal orders are over 90 days old and who pose no
danger to the community.
Alternatives to detention are arrangements between INS and private,
nonprofit agencies to supervise and refer people to community services
rather than detain them at public expense. To establish an alternatives
program, INS contracts with nonprofit agencies that have strong
community ties and significant expertise in dealing with refugees and
immigrants. The private agency screens potential participants, finds
housing, coordinates the necessary services for participants outside of
detention, and facilitates compliance with INS and court proceedings.
INS retains authority over the program to decide whom to release to the
program, to set reasonable reporting and other requirements for program
participants, and to redetain those who do not comply with those
conditions or are ordered removed.
If Congress appropriates $7.3 million for alternatives to
detention, some 2,500 people eligible for release could be placed in
such programs which have demonstrated 93% and higher appearance rates
at all hearings. The federal government would save a net $11.6 million.
BACKGROUND
The U.S. Commission on Immigration Reform expressly recommended
that ``Alternatives to detention should be developed so that detention
space is used efficiently and effectively.'' In particular, the
Commission noted that ``detaining individuals who have met an initial
threshold demonstrating their likelihood of obtaining asylum is not a
good use of scarce detention resources.'' \1\
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\1\ U.S. Commission on Immigration Reform, Becoming an American:
Immigration and Immigrant Policy, September 1997, pp. 139, 140.
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Asylum seekers are legally eligible for release on parole but some
have no one to sponsor them upon release, and remain imprisoned even
though they have committed no crime. In detention, they will have
difficulty finding legal assistance and may suffer additional trauma.
According to the Vera Institute of Justice, which tested supervised
release for asylum seekers under contract with INS over three years,
``Detention of asylum seekers is particularly unnecessary and unfair
since they are so willing to attend their hearings and since so many of
them win their cases.'' \2\
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\2\ Vera Institute of Justice, Testing Community Supervision for
the INS: An Evaluation of the Appearance Assistance Program, June 7,
2000, Volume I, p. 32.
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Other detainees have been ordered removed due to relatively minor
convictions in the distant past but cannot actually be sent back.
Although many no longer pose any danger to the community, they face
indefinite detention and prolonged separation from their families for
whom they may be the primary breadwinners. Alternatives to detention
can humanely achieve INS' goal of ensuring community reintegration for
this population.
ALTERNATIVES TESTED IN SEVERAL LOCATIONS HAVE ALL ACHIEVED 93% OR
BETTER APPEARANCE RATES.
INS funded the Vera Institute of Justice, a New York-based
nonprofit agency, to test supervised release as an alternative to
detention. The 3-year pilot program showed that 93 percent of asylum
seekers released to supervision appeared for all court hearings, and
saved the federal government almost $4,000 per person.\3\ Other
nonprofit agencies have tested alternatives with equal success. In New
Orleans, INS releases asylum seekers and people with over 90-day-old
removal orders to a program run by Catholic Charities with a 96%
appearance rate.\4\ In another program coordinated by Lutheran
Immigration and Refugee Service, INS released 25 Chinese asylum seekers
from detention in Ullin, Illinois to shelters in several communities.
This program also achieved a 96% appearance rates.\5\ INS officials
have praised both programs.\6\
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\3\ Vera Institute of Justice, Volume I, p. 66.
\4\ Joan Treadway, ``Detainees get chance to change their lives,''
New Orleans Times Picayune, Jan. 22, 2001, p. B-3.
\5\ Esther Ebrahimian, ``The Ullin 22: Shelters and Legal Service
Providers Offer Viable Alternatives to Detention,'' Detention Watch
Network News, August/September 2000, p. 8.
\6\ Joan Treadway, New Orleans Times Picayune, p. B-3 (quoting INS
New Orleans District Director Christine Davis); Esther Ebrahimian,
Detention Watch Network News, p. 8 (citing INS Field Operations chief
Michael Pearson).
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Key Elements of Successful Alternatives
Following is an outline of how alternatives to detention work, how
responsibilities are divided between INS and the nonprofit and why
these elements are important to achieving successful appearance rates
in immigration proceedings. Attached is documentation with more
detailed descriptions of the Vera Institute's Appearance Assistance
Program (AAP), Catholic Charities' alternative in New Orleans and the
release of Chinese asylum seekers from Ullin, Illinois.
STEP ONE: GROUP SCREENING IN DETENTION BY NONPROFIT AGENCIES.
In a few detention facilities, private nonprofit agencies have
worked with INS and the courts to ensure that group legal orientation
presentations are conducted for everyone in detention. These
presentations ensure that detainees have information about the
proceedings and whether or not they may be eligible for relief from
removal or for release from detention. This first contact between the
nonprofit agency staff and people in detention is a good time to gather
initial information about potential candidates for an alternative. In
the case of the Chinese asylum seekers detained in Ullin, Illinois, INS
paid the expenses for nonprofit legal representatives to conduct legal
orientations for all 88 detained Chinese. The information gathered
proved critical to organizing effective services and evaluating release
options.\7\
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\7\ Esther Ebrahimian, Detention Watch Network News, p. 2.
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STEP TWO: INDIVIDUAL SCREENING BEFORE RELEASE TO AN ALTERNATIVE
INS has the authority to decide whom to release to an alternative
to detention. However, an indepth interview by a nonprofit
representative can improve the Service's ability to make this decision.
The nonprofit agency interviews each potential participant to ensure
that the person meets the program's criteria and understands the
responsibilities of participants in the program. Through this
interview, the nonprofit may discover important information that
affects the release decision. For example, the person may have family,
in which case INS can consider releasing the person to his or her
family instead of to an alternative. Such screening interviews were
found to be critical to the success of Vera's Appearance Assistance
Program.\8\
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\8\ Vera Institute of Justice, Volume 1, p. 6.
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STEP THREE: PROVISION OF SERVICES TO INDIVIDUALS RELEASED TO THE
ALTERNATIVE
Access to assistance upon release--such as legal, social, medical,
mental health and job placement services--can help ensure compliance
with immigration proceedings.\9\ The nonprofit agency makes use of its
community links to find available services. It also helps integrate
each individual into the community (for example, by helping
participants make contacts in their ethnic and/or religious
communities). The nonprofit's ability to access these services depends
on longestablished links with other agencies in the community. The
services needed will vary depending on the population being served and
on the individual. For example, asylum seekers are newcomers to the
country. Help learning how to live in the United States and find legal
assistance can be a critical factor in their making their court
appearances.\10\ Long-term detainees usually already have experience
living in this country, but may need intensive support to help them re-
start their lives and integrate into the community.\11\
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\9\ Vera Institute of Justice, Volume 1, p. 73.
\10\ Vera Institute of Justice, Volume 1, p. 31. ``
\11\ Sue Weishar, ``NGOs and INS Establish Successful Alternative
in New Orleans,'' Detention Watch Network News, August/September 2000,
p. 4 and Joan Treadway, New Orleans Times Picayune, p. B3.
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INS must grant work authorization to all those released, including
asylum seekers, so that they can support themselves instead of relying
on government or community sources to cover housing and living
expenses. It also helps them use their time productively, contributing
to the community instead of remaining idle. INS is granting work
authorization in New Orleans to everyone released to Catholic
Charities, and this is critical to the success of the program.\12\ The
nonprofit agency running the alternative organizes temporary housing
for those released, and assists them in finding a job and locating a
place to live more permanently, all with the goal of helping the
released person become self-sufficient.
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\12\ Sue Weishar, Detention Watch Network News, p. 8.
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STEP FOUR: ON-GOING ASSISTANCE, MONITORING AND INFORMATION
Providing information about how the legal system works, detailing
the requirements for compliance and describing how to meet them,
explaining the consequences of not attending a court hearing, helping
locate legal assistance and building a relationship of trust all help
to ensure compliance.\13\ Immigration proceedings can be very confusing
even for people who have lived in this country, let alone newly arrived
asylum seekers. The opportunity to talk with a neutral party
experienced in working with refugees and accessing services they need,
greatly helps keep an asylum seeker engaged throughout the legal
process. In New Orleans, program participants voluntarily contact
Catholic Charities to ask questions, discuss problems and receive
advice and assistance. In the Ullin project, community shelters
reminded participants of their hearings and scheduled check-ins with
INS, organized transportation and accompanied them to these
appointments.\14\
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\13\ Vera Institute of Justice, Volume I, p. 7.
\14\ In addition to the documentation attached, LIRS gathered
information about the operation of these alternatives via telephone
interviews with Catholic Charities and the shelters housing the Chinese
released from Ullin.
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STEP FIVE: ENFORCING FINAL ORDERS OF DEPORTATION
People released to alternatives to detention are more likely to be
able to stay legally in the country at the conclusion of their
proceedings. This is due to effective screening and increased access to
legal representation outside of detention with the help of nonprofit
agencies. More than half of the asylum seekers in the Appearance
Assistance Program (AAP) won their cases.\15\
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\15\ Oren Root, ``The Appearance Assistance Program: An Alternative
to Detention,'' Detention Watch Network News, August/September 2000, p.
3.
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It is inevitable, however, that some people in alternatives to
detention will lose their cases and be ordered removed. It remains the
responsibility of INS, not the nonprofit agency, to enforce such
orders. In order to achieve this, INS may re-detain at any time a
person who does not comply with the conditions of an alternatives
program. Conditions may include participants reporting to INS in person
on a regular basis, showing up at all court hearings, and keeping INS
informed of their actual address of residence. INS may also re-detain a
participant upon issuance of the removal order. Participants in the AAP
still appeared for their hearings 93% of the time even though they were
informed that they would be re-detained if ordered removed in court. A
comparison groulp 6 that did not face the possibility of such re-
detention had substantially poorer appearance rates.\16\
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\16\ Vera Institute of Justice, Volume I, p. 3.
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For asylum seekers who lose their cases in court and are ordered
removed, Vera Institute suggests that INS could re-detain the person at
the hearing, but release them again to a more intensive level of
supervision if they decide to appeal.\17\ At earlier stages of
proceedings, the Vera Institute's experience shows that asylum seekers
need very minimal supervision, if any, in order to ensure good
compliance rates. Vera Institute explains, ``When they are placed in
proceedings, they understand that they must seek...protection through
the U.S. justice system and attend immigration court hearings.'' \18\
Vera Institute does not recommend that asylum seekers be detained
throughout the appeals process.
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\17\ Vera Institute of Justice, Volume I, p. 32.
\18\ Vera Institute of Justice, Volume I, p. 29-30.
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Partnership With Nonprofit Agencies
The Vera Institute recommends that the INS ``release to
alternatives (such as community supervision) as many people as it can,
as quickly as it can, while they complete their immigration court
hearings'' \19\ and favors contracting with non-governmental
entities.\20\ We agree.
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\19\ Vera Institute of Justice, Volume I, p. 72.
\20\ Vera Institute of Justice, Volume I, p. 74.
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Immigrants inside and outside detention are more
likely to trust representatives who do not work for the
government, and will therefore be more likely to cooperate with
them. Trust and confidentiality are important benefits of
having non-governmental entities involved in alternatives.\21\
Once immigrants have the trust of a nonprofit representative,
they may reveal information that they would not have readily
given to INS or to a prison official. The information they
receive from the nonprofit is also more trusted. In the process
of release of Chinese asylum seekers detained in Ullin,
nongovernmental representatives interviewed the entire group of
88 in detention, a step that was critical to the eventual
release of some 33 of them.\22\
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\21\ Vera Institute of Justice, Volume I, p. 72.
\22\ Esther Ebrahimian, Detention Watch Network News, p. 2.
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Nonprofit agencies have the necessary information and
expertise to help people access needed services, leading to
greater compliance. It takes a good deal of work to find out
what legal, social and pastoral services a person needs, and to
help them access them. This has been critical to success of all
three programs to date.\23\ Merely giving released individuals
a list of available services is not sufficient. Certain
nonprofit agencies, such as refugee resettlement agencies, have
multi-lingual, multicultural staff with legal and social work
backgrounds, as well as strong, established links in the
community that facilitate service provision and job placement.
These agencies also have solid ties to immigrant and faith
communities, both of which can be important in avoiding
isolation.
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\23\ Oren Root, Detention Watch Network News, p. 9.
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Help in understanding the legal process, and the
consequences of not showing up at INS check-ins and court
hearings, is crucial to ensuring that people comply. Such help
has been shown to be most effective when it comes from a non-
governmental representative who has gained the trust of the
released individual.\24\ The nongovernmental agencies involved
in these projects have spent a good deal of time working with
participants to explain proceedings to them, remind them of
meetings with INS and the courts, and even transport them to
those meetings and hearings. They are also able to answer
questions on an on-going basis once someone is released,
helping the participant to overcome fears and misinformation
that otherwise might have caused him or her to stop complying.
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\24\ Vera Institute of Justice, Volume I, p. 73.
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Facilitating access to legal representation is a
critical role of a non-governmental agency implementing an
alternative to detention. While INS cannot fund
legalrepresentation, adequate legal assistance can help reduce
delays in proceedings (for example, due to a lack of
information on the part of the immigrant), help ensure
compliance, and lead to a fairer process. For vulnerable
populations such as asylum seekers, legal representation is
particularly crucial, and it is hard to find in detention.
Attorneys who do represent people in detention encounter much
greater difficulties preparing these cases.\25\
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\25\ Esther Ebrahimian, Detention Watch Network News, p. 8.
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In the case of the Chinese asylum seekers released from Ullin,
nonprofit agencies found pro bono attorneys for all of those released
to community shelters. Locating quality representation was a time-
consuming process, and was only possible because of the longestablished
relationships that the nonprofit agencies had with bar associations,
law firms, and the pro bono legal community. Even after representation
was secured, the nonprofit agencies played a critical role answering
the questions of attorneys and helping ensure good communication
between the attorneys and the immigrants. For example, the local legal
service agencies assisting those released from Ullin helped find
volunteer interpreters for attorneys to interview their clients -
critical assistance to busy attorneys working on pro bono cases. Good
communication between an attorney and his or her client also helps make
sure the immigrant is engaged in the process, increasing the likelihood
of compliance.
A good working relationship between INS officials, the
nonprofit agency carrying out the alternatives program, and other key
community members is essential. An alternative to detention requires
significant cooperation between INS and the nonprofit to structure the
program, work out logistics and respective responsibilities, and work
out creative ways to address situations as they arise. Success in doing
so depends critically upon these good relationships. In New Orleans,
INS, Catholic Charities and community leaders met on a quarterly basis
for a number of months, establishing communication, trust and
cooperation, before the alternative program was even conceived.\26\
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\26\ Sue Weishar, Detention Watch Network News, p. 8.
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Justification of Costs/Demonstration of Savings
COSTS
The Vera Institute of Justice, which conducted the AAP pilot from
1997-2000 in the New York metropolitan area, carefully documented the
costs involved in running an alternative to detention. Our costs and
savings estimates are based on this documentation with one notable
exception. The Vera model included a labor-intensive reporting
requirement which was found not to contribute to the appearance rate of
asylum seekers. According to Vera, ``the most consistent factors [in
hearing compliance] are having community and family ties in the United
States, and being represented by counsel . ... Participant asylum
seekers achieved a higher appearance rate than those released on parole
because the program more effectively screened for community ties.''
\27\ Screening for community ties and facilitating access to counsel
are two aspects that will be notably enhanced with the participation of
NGOs with substantial refugee resettlement experience, community
involvement and legal referral networks. Indeed, the even higher
appearance rates obtained by the Ullin and Catholic Charities examples
confirm this. In the AAP program about half of the staff time was
devoted to the extraneous reporting requirement.\28\ Accordingly, at
least the variable costs of Vera's projected program could be halved by
eliminating that function, amounting to an average cost of $710,000 per
site.\29\ At that rate, it would cost about $7.1 million to serve a
total of 2,500 persons who otherwise would have to be detained. A
national coordinating center to conduct training and maintain
consistent quality control would cost an additional $200,000 bringing
the total annual cost of the program to $7.3 million.
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\27\ Vera Institute of Justice, Volume I, p. 7.
\28\ Telephone conversation with Oren Root, Senior Associate, Vera
Institute, April 24, 2001.
\29\ Vera projected $1.1 million for a site serving 250 persons.
Vera Institute of Justice, Volume Il, Appendix V, p. 3. This includes
$320,000 in fixed costs and $780,000 in variable costs, conservatively
estimated. Halving the latter and adding it to the former yields
$710,000.
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SAVINGS
The average cost of detaining an asylum seeker through his or her
hearing is $7,259.\30\ The cost of using an alternative is $2626 per
case heard (including the costs of detention prior to screening and re-
detention later, if necessary).\31\ Thus, the government can save the
difference, or $4,633 for each asylum seeker released to the
alternative program. If 2,500 asylum seekers are released to
alternatives, these savings would amount to more than $11.6 million.
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\30\ Vera Institute of Justice, Volume I, p. 66.
\31\ Vera Institute of Justice, Volume II, Appendix V, p. 5. The
AAP's $12 per day cost is adjusted to $8, reflecting the fact that the
streamlined model proposed costs 66% of the projected AAP, similarly
expanded, i.e., $7.3/11 million.
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Another group that could be released to the program is those who
have already been ordered removed but whose removal cannot be carried
out because INS cannot obtain travel documents from the home country.
They are eligible for release beginning 90 days after their removal
orders. Catholic Charities in New Orleans already successfully serves
this group, along with asylum seekers, without the reporting
requirements used by the AAP. (Savings from releasing people in this
group are likely to be even higher than for asylum seekers, because
many might remain in detention indefinitely without these programs.
Because firm figures are not available for savings for this population,
however, we conservatively base our figures on asylum seekers.)
Legal Orientation for Immigration Detainees
Program Implementation Plan
Prepared by:
Florence Immigrant and Refugee Rights Project
Lutheran Immigration and Refugee Service
This document lays out a plan for implementing legal orientation
presentations to be conducted by private sector nonprofit agencies in
immigration detention centers. Legal orientations reduce government
costs and increase efficiency in immigration proceedings. They also
help secure the due process rights of persons detained during
immigration proceedings and ensure that those with meritorious claims
for asylum or other relief from removal can adequately present them.
A 1998 U.S. Department of Justice pilot project found that legal
orientation presentations successfully reduce detention time, speed up
immigration court proceedings, increase their efficiency and improve
security in detention centers. The U.S. Senate and the U.S. Commission
on Immigration Reform have recommended that such programs be funded and
implemented nationwide.
With an appropriation of $2.8 million, private sector nonprofit
agencies can implement legal orientations at ten major detention sites,
generating net projected savings of $10 million.
BACKGROUND OF THE PROBLEM
With the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRAIRA), Congress greatly expanded the
number of people the Immigration and Naturalization Service (INS) must
detain. From 1996 to 2000, INS increased its detained population from
8,279 to over 20,000 immigrants and asylum seekers on any given day;
annually, the figure is over 200,000.
The detention and removal process is enormously expensive with a
budget over $1 billion annually, including an average detention cost of
$65.61 per bed-day. Reducing the length of immigration removal
proceedings saves money by significantly lowering the number of bed-
days that individuals spend in detention.
The efficiency of the system suffers when unrepresented individuals
seek repeated continuances to find counsel, when extra time is required
to identify and narrow the relevant legal issues and when hearing times
are extended because of unfamiliarity with the court procedures. Under
these circumstances, judges are often hesitant to proceed in the
absence of representation. Facilitating access to legal advice and
representation can improve the efficiency of removal proceedings while
strengthening the courts' commitment to due process.
An estimated 90 percent of immigration detainees go unrepresented
due to poverty and the remote locations of detention sites.\32\ These
individuals, often with limited education and proficiency in English,
alone must navigate the labyrinths of U.S. immigration law, which has
been compared to the U.S. tax code in its complexity. Many are confused
about their rights, options and prospects. Some unnecessarily delay
their cases even though they are not eligible for relief, while others
with meritorious claims erroneously waive their rights and are wrongly
deported.
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\32\ Margaret H. Taylor, Promoting Legal Representation for
Detained Aliens: Litigation and Administrative Reform, 29 Conn. L.
Rev., 1647, 1663 n.60 (1997) (citing FY 96 EOIR statistics entitled
``Immigration Judge Decisions in FY 96 by Custody and Representation
Status '').
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LEGAL ORIENTATION PRESENTATIONS
The Florence Immigrant and Refugee Rights Project, Inc. in 1989
created the model legal orientation process at the Florence (AZ) INS
Service Processing Center. The program consists of a live presentation
for all detainees before or at the time of their initial hearing with
follow up screening and case assessment for those without private
counsel. Additional legal assistance, referral or representation is
provided when available.\33\
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\33\ Christopher Nugent, Strengthening Access to Justice:
Prehearing Rights Presentations For Detained Respondents, Interpreter
Releases, Vol. 76, No. 27, July 19, 1999.
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The Florence Project's lepl orientations benefited the INS and the
Court by increasing the efficiency of the process.\34\ The U.S. Senate
and U.S. Commission on Immigration Reform have recognized the value of
such programs.\35\
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\34\ Immigration Control: Immigration Policies Affect INS Detention
Efforts, United States General Accounting Office Report, GAO/GGD-92-85,
June 1992.
\35\ Senate Resolution 284, 103d Congress 2d Session, 1994
(enacted); Letter from U.S. Senators Dennis DeConcini, Orrin Hatch,
Edward M. Kennedy, Paul Simon, and Alan K. Simpson to Attorney General
Janet Reno, November 14, 1994; U.S. Commission on Immigration Reform,
Becoming an American: Immigration and Immigrant Policy, September 1997,
pp. 135-37.
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During fiscal year 1998 the U.S. Department of Justice funded a
pilot project through EOIR to document the benefits of legal
orientations. The project was implemented at three detention sites by
three private sector nonprofit agencies \36\ over a three-month period.
Based on case data from the pilot period, the evaluators from EOIR
found that legal orientations save both time and money for the
government while also benefiting detainees. They determined that legal
orientations reduced overall bed days in detention by 4.2 days per
detainee and found that ``[d]uring the pilot, cases were completed
faster and detainees, with potential meritorious claims to relief, were
more likely to obtain representation.'' In addition, they found that
such programs were useful management tools that ``strengthen the
capability of INS to operate safer detention facilities.'' In
conclusion, the evaluators recommended that the government should
expand legal orientations to all INS detention facilities.\37\
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\36\ The agencies and detention sites included the Florence Project
at the Florence INS SPC in Florence, AZ, Catholic Legal Immigration
Network (CLINIC) at the San Pedro Detention Center near Los Angeles,
CA, and South Texas Pro Bono Asylum Representation Project (ProBAR), a
project of the American Bar Association, at Port Isabel Detention
Center in Harlingen, Texas.
\37\ U. S. Department of Justice, Executive Office for Immigration
Review, ``Evaluation of the Rights Presentation,'' 1998.
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RATIONALE FOR PUBIC-PRIVATE PARTNERSHIP IN LEGAL ORIENTATIONS
Private sector nonprofits with demonstrated legal expertise in
immigration matters, experience in working with detained immigrants and
ability to refer cases to pro bono counsel are best suited to provide
independent professional advice to detained individuals and have
spearheaded limited efforts to assist immigrants in removal
proceedings. They do not, however, have the resources to sustain
funding of this type of systemic initiative on their own nor are there
sufficient alternative private sector resources.\38\ The government is
statutorily barred from funding legal representation in immigration
proceedings.\39\ The scope of the statute, however, does not prohibit
funding items and programs that facilitate immigrants obtaining
representation such as legal orientations.\40\
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\38\ Letters from officers of the Open Society Institute, the Ford
Foundation, the Fund for Immigrants and Refugees, the Lawyers Trust
Fund of Illinois and the New York Community Trust, August--September
2000.
\39\ Immigration and Nationality Act Sec. 240(b)(4)(A); 8 U.S.C.
1229a.
\40\ David A. Martin, INS General Counsel, Memo, ``Funding of a
Pilot Project for the Representation of Aliens in Immigration
Proceedings,'' December 21, 1995.
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OBJECTIVES
To implement legal orientation programs at 10 detention
facilities so that all at those sites receive legal
information, evaluation and counseling as well as referral for
representation when available
To measurably increase the efficiency of immigration court
proceedings, decrease the duration of detention and reduce
tension and behavioral problems in the facilitie
To measurably increase detainees' ability to make a timely
decision about their cases through early and accurate legal
information and orientation
To provide information, training, technical assistance and
ongoing advice through a National Support and Training Center
to private nonprofit agencies conducting legal orientations at
designated sites
To evaluate and quantify the costs, savings, benefits, and
other effects of the legal orientations and evaluate the merits
of expansion to other sites
Through an interagency national working group, to develop
system-wide procedural recommendations for the INS, EOIR, and
private nonprofit agencies to improve justice and efficiency
through legal orientation programs
Program Implementation
A. NATIONAL IMPLEMENTATION
EOIR will administer the program at the national level using the
standard government ``Request for Proposal'' (RFP) process. The agency
will select the appropriate organizations and be accountable for
ensuring that all proposed activities are carried out.
An interagency working group should be established at the national
level, bringing together the INS, EOIR, and the designated agencies
share information and ensure consistent implementation of the program.
Such a group has met several times in past years to discuss the
feasibility of such program and would be ready to build on those
relations and that practical experience. This working group will also
address the movement of detainees, access to facilities and court
procedures, and will provide oversight and guidance to the local sites
of the project.
The establishment of a National Legal Orientation Support and
Training Center will also help ensure quality, consistent
implementation of legal orientations nationwide. The Center will offer
the nonprofit agencies training and consultation in program development
and substantive legal issues, will coordinate evaluations and will
assist EOIR and the interagency working group to develop standards for
the programs. The original model for legal orientations has been
developed and refined over a ten-year period at the Florence INS
Service Processing Center in Florence, AZ. The D.O.J. pilot project
found that this model was effectively used at all three pilot sites and
recommended its replication at other sites to standardize the provision
of information and evaluation. The agency chosen to carry out the
training should have significant expertise in implementing this model.
B. LOCAL IMPLEMENTATION AT EACH DETENTION SITE
At each detention site, the nonprofit agency will be in charge of
implementing the program and will be primarily responsible for the
screening, assessment and referral functions. These tasks will include:
To review the charging documents filed with the court of those
attending the orientation
To give a presentation to all detainees before or at the time
of their initial court appearance, integrating questions and
answers throughout
To briefly screen each respondent at the end of the
orientation to determine whether he or she wants to accept
removal, seek voluntary departure or have an individual
interview with the nonprofit's staff
To conduct individual interviews when requested to assess
potential relief from removal and release eligibility
To distribute additional written orientation materials at the
conclusion of the interview
To orient pro se respondents before each additional court
hearing
To provide further legal assistance, referral or
representation when available and at no expense to the
government
A basic formula for core staffing includes at least one attorney
and paralegal per courtroom in addition to one full-time clerical
support person and part-time supervisory support. For example, in a
detention facility with 500 beds and two courtrooms, at least 5.5 staff
members are required (including attorneys, paralegals, clerical and
part-time supervisory support). The lead agency will supervise and
educate the core staff. Legal staff would maintain time records to
ensure that government funding is not used for direct representation.
C. KEYS TO SUCCESS
Previous assessments of successful legal orientations have
identified several key elements that are necessary to make the project
a success. These include:
Cooperation: Effective implementation of legal orientations
requires cooperation between all parties at both the local and national
levels. Adjustments to sometimes long-standing operating procedures are
a necessary element of the model, particularly information-sharing and
access to detainees. Accordingly, each site will form a local working
group, bringing together the Officer-in-Charge of the detention
facility, the EOIR court administrator, the INS trial attorneys and the
nonprofit agency as well as INS District level staff when necessary.
This working group will set initial site-specific base-line conditions,
program goals and cooperative operating procedures will continue to
meet over the course of the program to address concerns or problems
that arise.
Access and Collaboration: In preparation for implementation, the
local working groups will review the facility operating procedures and
access rules to ensure that they meet the guidelines set forth in the
INS Detention Standards. The program will respect the distinct roles
and obligations of the stakeholders. It will be the responsibility of
the nonprofit agency at each site to make postorientation decisions
regarding service, representation or referral. No federal government
entity will make such determinations.
Security: The program will respect the security and custodial
obligations of the INS and EOIR within the guidelines set forth in the
INS Detention Standards.
Lead Agency: A single ``lead agency'' will be identified at each
detention site to provide the continuous presence of a core staff to
implement the legal orientations, centralize key functions, provide
continuity in the court and a central, accountable clearinghouse for
problem solving. Each of the local sites will have a single agency as
the point of contact with primary oversight for the screening,
assessment and referral functions, representing the interests of all
local nonprofit agencies. A core staff from the lead agency will be
present at all master calendar hearings.
MEASURING SUCCESS
The local working groups at the ten detention sites, in
consultation with the national working group, will measure the effect
of legal orientations upon the following:
The efficiency of the immigration courts
The provision of legal screening/advice and an appropriate
level of legal services to all immigration detainees in the
selected sites
The efficiency of deportation of individuals with no legal
recourse
Number of detention days
Number of security incidents
Qualitative assessment of improvements in detainee access to
justice and due process rights
At the end of the twelve-month period, the national interagency
working group, in coordination with the local groups, would report to
EOIR on their findings. In addition, the agencies will produce a
written report of their activities at each site.
EXPANSION TO ADDITIONAL DETENTION SITES
The plan proposes implementation of legal orientation programs to
ten detention sites during a oneyear period. This is based on a
realistic assessment of how many legal orientation programs could be
implemented in one year. However, expansion to additional detention
sites in future years will take advantage of the efficiencies, savings,
and protection of due process rights afforded by legal orientations.
The year-end reports conducted by the private sector nonprofit agencies
and the national interagency working group will assist in evaluating
the merits of expansion to other sites. The reports will also provide
guidance to the various governmental and nongovernmental agencies in
their efforts to continue to improve justice and efficiency through the
continued expansion of legal orientations.
Justification of Costs/Demonstration of Savings
OVERVIEW
With $2.8 million appropriated for legal orientation presentation
programs at ten major detention facilities, the government will save
$12.8 million in detention costs for a net savings of $10 million.
$2.2 million covers the costs of legal orientation presentations at
$200,000 per site, and includes an additional $200,000 for the training
center. INS and EOIR expenses at the sites are estimated at $600,000
yielding a total cost of $2.8 million. Using EOIR's FY 2000 immigration
court processing figures at ten major facilities, the per person cost
of the presentations is $63, about the average cost of one night in
detention. According to EOIR's evaluation, those who attendsuch
presentations spend an average of 4.2 fewer days in detention.
Consequently, the program can yield net savings of over $200 per
person, or about $10 million if implemented at 10 detention centers.
Program Costs
GRANTS TO NGOS
It will cost an estimated $200,000 for a non-governmental
organization to carry out legal orientations at a detention facility
for a year. This is based on a site with two courtrooms. Personnel
costs are estimated at $133,000, and include a project director at .5
FTE ($25,000), two attorneys at .5 FTE each ($40,000), two paralegals
at .5 FTE each ($25,000) and administrative support staff at .5 FTE
($10,000), and benefits estimated at 33% of salary. Non-personnel costs
include 50% of yearly operating costs, and are estimated at $67,000.
This includes office rental, telephone, purchase of two laptop
computers, a photocopier and a fax machine and other basic office
expenses.\41\
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\41\ The EOIR pilot project grants were approximately $20,000 each
to cover 3 months of presentations, implying an annual cost of $80,000
per site. However, this figure cannot be extrapolated to a larger,
nationwide program. The three agencies in the pilot had existing
programs and were supplemented by privately-raised funds. This is not
sustainable and would not ensure consistent legal orientation for all
detainees at a facility. Agencies will still need to raise their own
funds to cover other activities that cannot be government-funded, such
as legal representation for people in immigration proceedings.
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Costs of the national training center are estimated at $200,000
annually. Personnel costs of $80,000 include a training coordinator at
1.0 FTE ($50,000, including benefits) and an administrative assistant
at 1.0 FTE ($30,000, including benefits). Office operations are
estimated at $50,000 a year. Costs of organizing and hosting trainings
for NGO staff at all sites and travel for site visits are an estimated
$70,000.
COST TO INS AND EOIR
EOIR reports in its evaluation of the 90-day pilot project that at
one site, INS incurred a cost of $20,000 over the 3 months to pay for
guards to bring detainees to court the evening before their hearing for
the presentation. These costs were not reported at the other two sites,
but two court administrators reported that hosting the presentations
required some time for court support staff.\42\
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\42\ Evaluation of the Rights Presentation,'' Executive Office of
Immigration Review, 1999, p. 14.
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We doubled the one site's cost figure to cover unreported costs and
to allow for the possibility that more than one-third of the facilities
would incur such costs and estimate, therefore, that combined costs
amount to $40,000 over three months at three sites, for an average of
$54,000 per site per year. For ten sites, this adds up to $540,000. For
administration of the program at the national level, EOIR will require
a small percentage of program costs, estimated at 3% of $2.2 million or
$66,000. Thus, the total cost to the government is estimated at
$606,000, rounded to $600,000.
SAVINGS RESULTING FROM THE PROGRAM
EOIR's evaluation estimates a savings of approximately $8 million
were the program to be expanded to 16 detention sites, based on the
pilot's average savings of 4.2 detention bed-days for every detainee
who attends a rights presentation, an average cost of $65.61 per bed-
day, and a total of 29,131 detainees appearing in court at 16 detention
facilities in FY 1999.\43\
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\43\Evaluation of the Rights Presentation,'' Executive Office of
Immigration Review, 1999, p. 12.
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To estimate savings for legal orientations at ten sites, we choose
ten courts at detention facilities for which the Yearbook provides
figures of ``immigration matters received.'' These are all facilities
at which INS detention standards are now in force (they are all INS-
operated or contracted facilities, not county or local jails). These
standards require the facilities to allow legal orientation
presentations by non-profit organizations. The total number of
immigration matters received at these ten courts in FY 2000 was
46,392.\44\
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\44\ Statistical Yearbook, Executive Office of Immigration Review,
January 9, 2001, Table 1, p. B3. Detention facilities included are:
Batavia SPC, Eloy Bureau of Prisons Facility, Florence SPC, Houston
SPC, Krome North SPC, New York Varick SPC, Oakdale Federal Detention
Center, Otay Mesa, Port Isabel SPC, and San Pedro SPC. This total is
larger than the FY 1999 figure EOIR used in the rights presentation
evaluation for 16 facilities. The 2000 Statistical Yearbook documents
an overall increase of immigration matters received at all courts of
10% over FY 1999 figures (p. B2).
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If legal orientations save an average of 4.2 bed-days per detainee
at $65.61 per bed-day, and 46,392 people attend presentations, INS'
gross savings amount to $12.8 million. If, as described above, it costs
a total of $2.8 million to carry out legal orientation presentations at
ten sites for a year, the net savings to the federal government is an
estimated $10 million.
As legal orientations cost about $63 per person, and, as EOIR's
evaluation demonstrates, save an average of 4.2 days in detention, the
net savings per person is about $212.
Based on the statistics from the EOIR evaluation, however, it is
likely that on average, legal orientations save more than 4.2 bed-days.
The report arrived at this figure by comparing how long it took at the
three sites to complete a case before the pilot period, with how long
it took during the pilot period. The average difference between the
number of completed cases before and during the pilot for all three
sites was 4.2 bed-days.\45\ However, legal orientation presentations
were occurring in the same manner at Florence before and during the
pilot. Therefore, at Florence there is not much difference between the
number of completed cases before and during the pilot. Therefore,
including Florence in the calculation brings the average down.\46\
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\45\ ``Evaluation of the Rights Presentation,'' Executive Office of
Immigration Review, 1999, pp. 11-12.
\46\ ``While the EOIR evaluation does not provide a breakdown of
these figures by site, it does provide a breakdown of another set of
figures that supports the assertion that the average number of bed days
per person would be the same before and during the pilot. On page 8,
statistics are presented per site regarding the length of time it took
to process unrepresented detainees who did not apply for relief from
removal. This is not the same as the figures used to calculate the 4.2
average--those figures include all cases, represented and unrepresented
and including those who applied for relief. For unrepresented detainees
not applying for relief, at both San Pedro and Port Isabel (where
presentations had not taken place before) it took on average 9 days
less during the pilot project to process these cases. At Florence, it
only took 2.3 days less, which is not a substantial difference. As the
report itself states, this is because Florence was conducting rights
presentations before as well as during the pilot.
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SUPPORT FOR LEGAL ORIENTATION FOR IMMIGRATION DETAINEES
``We urge you to actively pursue such a pilot program and to
seriously consider the Florence Service Processing Center Project as a
model. It is our understanding that the project at the processing
center in Florence has not only cut the time and costs associated with
the deportation of aliens, but at the same time has ensured that aliens
are apprised of their rights in deportation proceedings.''
--Senators Dennis DeConcini, Orin Hatch, Edward Kennedy, Paul
Simon and Alan Simpson, Letter to Attorney General Janet Reno,
November 14, 1994
``In our view... INS is not prohibited from expending appropriated
funds for things that will facilitate aliens' obtaining
representation.''
INS General Counsel David Martin, December 21, 1995 Memorandum
``The system suffers further because many aliens are unrepresented
and thus do not receive advice on whether to go forward because they
have a chance of being granted relief. . . . the removal process works
much more efficiently when aliens receive advice of counsel. Those with
weak cases generally do not pursue relief through proceedings if they
understand from counsel that they will be wasting their time.''
The U.S. Commission on Immigration Reform, Becoming a Citizen:
Immigration and Immigrant Policy, September 1997
``The Executive Branch should be authorized to develop, provide,
and fund programs and services to educate aliens about their legal
rights and immigration proceedings. Such programs should also encourage
and facilitate legal representation where to do so would be beneficial
to the system and the administration of justice... the alien would not
have a right to appointed counsel but the government could fund
services to address some of the barriers to representation.''
The U.S. Commission on Immigration Reform, Becoming a Citizen:
Immigration and Immigrant Policy, September 1997
``I strongly support the work of the Florence Project and the need
for similar efforts in INS detention facilities around the country .
...I can tell you with certainty that the detainee population here
suffers from less anxiety and stress, which are major causes of unrest,
than detainees at other SPCs. ... As the Officer in Charge it is
extremely helpful in managing the facility to have the Project staff on
hand to work with those who need special attention.''
Donald B. Looney, Officer in Charge, Florence INS SPC, 27-year
veteran of INS, Letter of May 5, 1998
``Based on case data from the pilot period, the rights presentation
has the potential to save both time and money for the government while
also benefiting detainees. During the pilot, cases were completed
faster and detainees, with potential meritorious claims to relief, were
more likely to obtain representation. Moreover, the rights presentation
is a useful management tool for controlling a detained population. As a
result, the rights presentation may strengthen the capability of INS to
operate safer detention facilities.''
Evaluation of the Rights Presentation, U.S. Department of
Justice, Executive Office for Immigration Review
Statement of Allen S. Keller, M.D., Division of Primary Care Medicine,
New York University School of Medicine, New York, N.Y.
On behalf of the Bellevue/NYU Program for Survivors of Torture, the
National Consortium of Torture Treatment Programs and Physicians for
Human Rights, I am submitting this statement in strong support of the
Refugee Protection Act. This legislation is essential in addressing the
ill effects of current immigration policy, which fundamentally
undermines the rights and safety of refugees and asylum seekers coming
to this country seeking protection.
I have more than 15 years experience in working with and caring for
refugees and asylum seekers. In 1985, I worked as a medical volunteer
with the American Refugee Committee in a refugee camp along the Thai-
Cambodian border. I am the founder and director of the Bellevue/NYU
Program for Survivors of Torture. This program is jointly sponsored by
New York University School of Medicine and Bellevue Hospital, the
nation's oldest public hospital. The Bellevue/NYU program provides
comprehensive medical, psychological care and social services to
victims of torture and refugee trauma. Since the program began in 1995,
we have cared for nearly 600 men women and children from over 50
different countries.
I am on the Executive Committee of the National Consortium of
Torture Treatment Programs. This consortium consists of 23 treatment
centers throughout the United States who provide care to survivors of
torture and refugee trauma. The oldest torture treatment center in the
United States is the Center for Victims of Torture, which was started
in 1985 and is located in Minneapolis, Minnesota.
I am on the international advisory board of Physicians for Human
Rights (PHR). PHR has a network of health professionals who voluntarily
provide medical and psychological evaluations for survivors of torture
and other human rights abuses applying for political asylum in the
United States. I have participated in this asylum network since 1992
and have conducted nearly 100 evaluations of asylum seekers. I have
also participated in a number of PHR investigations including
documenting the medical and social consequences of land mines in
Cambodia (1993), a high incidence of torture among Tibetan refugees who
fled to Dharamsalla India (1997), and patterns of human rights abuses
among Kosovar refugees (1999).
Torture is a worldwide health and human rights concern and is
documented to occur in more than 90 countries worldwide. Survivors of
torture arriving in this country have been persecuted for daring to
question ruling powers, for expressing religious beliefs, or simply
because of their race or ethnicity. For example, among the patients I
have cared for are monks and nuns from Tibet, student leaders from
Africa, and ordinary citizens from Bosnia.
Torture can have devastating physical and psychological
consequences. I have seen the scars from shackles, the marks from
cigarette burns inflicted during interrogation and the wounds and
broken bones from severe beatings. I have listened to stories of shame
and humiliation, of haunting nightmares, and memories that will not go
away. One patient of mine, for example, who was repeatedly submerged in
a vat of water while being interrogated, would feel like he was gasping
for air whenever he showered or went out in the rain.
As a physician caring for survivors of torture and refugee trauma,
I am very concerned about the current immigration policy of expedited
removal, which provides for the immediate deportation of individuals
who arrive without valid travel documents. Not surprisingly, torture
victims often have to flee their countries without such documents since
it is the torturers who control them.
I have come to appreciate the extraordinary difficulty asylum
seekers and refugees have in recounting their traumatic experiences,
even months or years after the events took place. Individuals may have
difficulties remembering all of the specific details of their trauma,
either because they are trying to block out these disturbing memories,
or because they may have been subjected to extreme conditions such as
repeated episodes of torture/abuse, imprisonment under poor conditions
(including deprivation of sleep, light, and food), which may make it
difficult for them to remember all of the details. Individuals may feel
very anxious about not being able to remember everything. Additionally,
individuals may have suffered neurological impairments such as
cognitive deficits or hearing/visual loss from head trauma, or they may
be experience significant physical symptoms such as musculo-skeletal
pain from prior beatings, which impedes on their ability to effectively
communicate.
Describing prior disturbing events under any circumstances can
evoke symptoms of anxiety including fear, nervousness, palpitations,
and dizziness. In fact, one of the hallmarks of Post-Traumatic Stress
Disorder, which is a form of anxiety, is a trying to avoid thinking
about the traumatic events. Furthermore, individuals may have strong
feelings of shame and humiliation in recounting certain events such as
sexual assault. Also individuals may have feelings of guilt from having
escaped while friends and family did not. Individuals who recount
events subsequently often have difficulty sleeping and recurrent
nightmares of the events.
For these reasons, many individuals want to avoid discussing their
trauma. An asylum seeker may find recounting events to an immigration
officer, immediately upon arrival after a long and difficult trip and
in a foreign language, often without assistance, to be particularly
stressful. A refugee's inability or extreme reluctance to tell of their
experience under such circumstances is understandable. Unfortunately,
such reluctance can be mistaken for a lack of credibility, especially
by someone who does not have experience evaluating survivors of
torture. Under current immigration policy, which allows for expedited
removal, I am concerned that survivors of torture and other traumatic
events are being turned back by INS inspectors at airports or other
points of entry.
The current law requiring individuals to apply for asylum within
one year of arriving in this country also poses an unfair burden on
asylum seekers. Many of the individuals I have evaluated and cared for
are not aware of this policy. Others are not able to testify within one
year because of the psychological and emotional consequences of their
abuse.
For example, one woman I cared for before the 1996 law went into
effect was arrested in her country after participating in a pro-
democracy demonstration. During the course of her incarceration, she
was repeatedly raped by police, who told her they were ``going to teach
her a lesson for participating in such activities.''
She once told me that she wasn't going to apply for asylum because
she couldn't bear to have to tell her story. It was only after a
trusting, therapeutic relationship with her was established that she
was able to reveal the events of her abuse. It would have been
psychologically devastating for her to have to recount these events
immediately upon her arrival in this country, or even within a year of
arrival. In all likelihood, she would have been unable to meet the one-
year filing deadline.
Another area of concern with current immigration policy is
imprisoning arriving asylum seekers in INS Detention Facilities,
including county jails, pending adjudication of their asylum cases.
This can often take months or years. Prior to being transferred to
detention facilities, asylum seekers are often held at airports for
several hours in hand cuffs and leg shackles. Individuals are
subsequently kept in these restraints while being transported to
detention facilities and at other times as well, including, in some
instances, during their asylum hearings. Imprisonment and treating
asylum seekers like criminals is retraumatizing and can have harmful
effects on their physical and emotional well being. Many of the INS
Detention Centers are windowless warehouses with little or no
opportunity for detainees even to see the light of day. Imprisonment
and such deprivation can result in exacerbating disturbing memories and
nightmares of abuse the asylum seekers had suffered previously.
Depression can be caused by detention and feelings of isolation,
hopelessness and helplessness.
Asylum seekers may experience worsening of physical symptoms,
including musculoskeletal pain, because of their restricted activity.
Somatic symptoms, such as headaches, stomach aches and palpitations can
also result from detention.
For example, Patrick is a young man from an African country. He
witnessed his father beaten and killed for being a member of an
opposition political party. Patrick was subsequently imprisoned and
repeatedly tortured. He later escaped, and eventually made his way to
this country. An INS asylum officer interviewed him. Patrick was tired,
scared, and neither spoke English well nor adequately understood the
process. The asylum officer wrongly concluded--in an interview
conducted without an interpreter that Patrick was not from Congo
because he could not speak French. The INS ordered that Patrick be
deported. An immigration judge--in a ``review'' in which Patrick was
unaided by counsel or an interpreter--failed to correct the asylum
officer's mistake. Subsequently, Patrick was shackled and placed on a
plane back to his country. As he was being dragged onto the plane he
was crying and saying, ``Please, America is a human rights country. Why
do you want to deport me? I don't want to be killed.'' Fortunately for
Patrick, the plane's pilot heard his cries and refused to take off.
Shortly after that incident, I examined Patrick in an INS Detention
Facility. He had scars from where the shackles had been applied both in
his country as well as ours. Subsequently, he remained in detention for
more than 3 years. During that period, Patrick suffered from
significant periods of depression and anxiety, for which he was
inadequately treated. He frequently experienced extreme difficulty
sleeping and nightmares of the abuse he had suffered in his country. He
also frequently suffered from muscle aches, headaches and palpitations.
I believe these symptoms resulted from his imprisonment here.
After more than three years, Patrick was granted asylum and
released. He is now working and making productive contributions to our
society, though he still experiences nightmares and disturbing memories
both of the abuse he suffered in his native country as well as his
imprisonment upon arrival in our country.
Another asylum seeker detained by the INS, whom I recently
interviewed, had been brutally beaten by authorities in his native
country because of his ethnicity. ``I came to America to be free,'' he
told me. ``I came here to find peace and to live in peace. I never
expected to be put in jail. They don't call it jail, they call it
detention. But it is jail. Being in this jail reminds me a lot about
what happened to me in my country. If I were free, I could be doing
normal activities and I wouldn't think so much about what happened. I'm
not saying these things would be eliminated, but I would feel much
better because I am a free person.''
While in INS Detention, many asylum seekers are held in county
jails, again demonstrating that asylum seekers are treated like
criminals. Many asylum seekers have never been in prison before.
Furthermore, authorities in detention facilities utilize segregation
(solitary confinement) or the threat of segregation as a means of
behavior control. This is particularly cruel given that many
individuals who were imprisoned and tortured in their own countries may
have been placed in solitary confinement as part of their abuse.
One detainee I interviewed described this: ``I saw an officer
searching the bags of one of the detainees. Another detainee asked the
guard not to search the man's bag without him being there. The officer
called another officer and they took the detainee who had objected to
the search away. He was in segregation for 3 days. I felt very sorry
for that man. They showed him no respect. This is not how to treat
another human being, and certainly no reason to put him in segregation.
It made me sad and worried for myself. Could something like that happen
to me?"
Another detainee I interviewed recounted this event. ``One day, a
guard was doing a bed count in my bunk. One of the other men in the
bunk asked him why they were doing that since they had just counted.
That was all he said. The guard came back with several other guards,
put my bunkmate in handcuffs and took him away. He was there for four
days. There are some people in isolation for a month or a month and a
half'' They subsequently had a hearing, and realized he hadn't done
anything wrong and released him. But that was after four days. The
guards like to threaten people with segregation. People get very scared
of segregation because it is a room where you are by yourself, and it
is small and very cold.''
Treating individuals who have suffered horrific human rights abuses
like criminals is morally reprehensible and can have harmful effects on
their health. Furthermore, while in detention, asylum seekers often
have difficulty accessing health services, particularly mental health
services, which are essential to their recovery from the traumatic
events they have suffered.
Among the individuals being detained in these adult facilities are
children, who given their youth, may be even more vulnerable to the ill
effects of detention including worsening of symptoms of depression and
anxiety. Furthermore, it is troubling that the INS is relying on dental
x-rays to make determinations of the age of individuals. Such
examinations are subject to variability. Even in the case of the most
skilled individual performing age determination, the age range
specificity is fairly wide and may be plus or minus 3 years or more for
individuals between 16 and 18 years old.
The Bellevue/NYU Program for Survivors of Torture, in collaboration
with Physicians for Human Rights, is currently conducting a study
evaluating the health status of asylum seekers held in detention by the
INS. The results of this study will be available by the early fall.
Current immigration policy poses an unfair and unhealthy burden on
survivors of torture and other victims of human rights abuses who come
to the United States seeking safety and political asylum. In our zeal
to make our borders secure, we cannot -we must not- forget who we are.
A country of immigrants. A country of refugees.
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