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Caregiver Industry Braces for Workers Shortage as Thousands Lose Employment Authorization in the U.S.

The impact of immigrant workers on long-term care industry staffing
Approximately 1 million of the current caregiver workers in the U.S. are immigrants, according to the Paraprofessional Healthcare Institute.1 This amounts to approximately one-quarter of the U.S. nursing, psychiatric, home health and personal care aides, which the Bureau of Labor Statistics (BLS) reported at over 4.5 million in 2016.2 BLS estimates this number to grow by approximately 1.4 million by 2026, a 31 percent increase.3

Despite the increase in job availability in this sector, nursing homes and agencies providing home health aides services struggle to provide sufficient staff to meet their patients’ needs. Across the country, patients with disabilities and the elderly who receive home health services in remote areas have gone without services in recent years, as agencies providing home health aides have reported staff shortages of up to 30 percent.4 Nursing homes in Wisconsin and Minnesota have been forced to turn away thousands of patients in recent years because they lack sufficient staff.5

The reason for the acute shortage in the industry is simple: jobs like CNAs, personal care attendants, caregivers or home health aides are severely underpaid – on average about $10-11.00/hour – due largely to low reimbursement rates from the government programs that pay for the care provided to those in need. Their work – assisting the elderly, convalescents, mentally impaired or persons with disabilities with daily living activities – is physically and emotionally taxing. Workers often suffer injuries due to work-related accidents and even violent attacks. BLS estimates that the incidence rate of occupational injuries and illness among nursing assistants is the second highest, being surpassed only by the incidence rate of occupational injuries among police officers.6 BLS recognizes the cause of injury or illness among nursing assistants to be falling, overexertion in lifting or lowering, or violence and other injuries by persons or animal.7

The employee shortage in the industry is about to get worse, as thousands of caregivers will have to leave their jobs when their work authorization in the U.S. is terminated. Throughout 2017 and 2018, the federal government announced it would terminate several immigration programs that provide employment authorization to foreign nationals who are currently in the U.S. The Temporary Protected Status (TPS) for nationals from Haiti, El Salvador, and Honduras, as well as the Deferred Action for Childhood Arrivals (DACA), are among those programs. TPS holders from Haiti can renew their legal employment authorization through July 22, 2019, those from El Salvador through September 9, 2019, while Honduran TPS holders can extend their employment authorization through January 5, 2020. DACA was expected to terminate on March 5, 2018, but some DACA holders are temporarily still able to renew for two years due to a court order, while related litigation is playing out in court.

A considerable number of these immigrants currently fill personal care aide jobs. The majority of the nursing homes and agencies providing home health services nationwide already employ immigrant workers, some with TPS and DACA-based employment authorization. Terminating these immigration programs will potentially leave long-term care facilities severely understaffed, in an industry where the U.S. worker turnover is already high.

Sponsoring employees for permanent residence (green card)
Given the shortage of workers in the industry, nursing homes and long-term care providers often look to sponsor foreign employees for immigration benefits in order to meet their business needs. The employment authorization that workers have under TPS or DACA (or other similar programs) is tied to the immigration status that person has acquired independently of having a job. So if they lose their underlying immigration status because the program is terminated, they automatically lose employment authorization as well.

But many workers could obtain permanent residence (i.e. green card) and work authorization directly through employment, if they have a job offer and an employer who is able and willing to go through the necessary application process. Nursing aides, personal care aides and other similar occupations are generally classified in the EB-3 category, one of five employment-based categories available for permanent residence under current law.

Under this category, the employer would first have to go through an application process with the U.S. Department of Labor (DOL) in order to certify the wage to be paid to the foreign worker and prove to DOL that no qualified U.S. workers are available and willing to fill the position. To that end, the employer must go through a recruitment process to attempt and find U.S. workers first. Not every recruitment effort qualifies. To be used for a permanent residence application, the recruitment process must follow specific guidelines, language, and timeframe as provided by the code of federal regulations.

Once DOL certifies the application, the employer can file an immigrant petition with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) in order to classify the foreign worker as the beneficiary of an employment-based petition seeking EB-3 classification. The foreign worker would then have to submit his/her own application for permanent residence, in addition to the employer’s petition. Depending on the case, some foreign workers may be able to submit their permanent residence application with USCIS at the same time as the employer’s petition. This will depend on whether the foreign worker is already in the U.S., whether they have lawful or unlawful status, and whether their case is limited by the EB-3 annual quota. In other cases, the employee may have to apply at a U.S. consulate abroad. These factors are determined on a case-by-case basis. Regardless of the route of each case, if approved, the employee obtains permanent residence (green card) in the U.S., which then puts them on a path to obtain U.S. citizenship after five years, if they remain eligible.

Temporary work visas are generally not available for nursing aides and related occupations
The traditional temporary work visas currently allowed by U.S. immigration laws generally require a job offer and an employer willing and able to sponsor the foreign worker for immigration status. And while many residential care facilities are willing to sponsor employees for work visas, unlike the permanent residence option discussed above, temporary work visas do not work with nursing aides, caregivers or other similar types of positions.

With very limited exceptions, the temporary work visas currently on the books can generally be placed in four categories: specialty or high-skill occupations (H-1B, L); treaty investor/trader (E-1/E-2); seasonal visas (H-2A, H-2B); and industry-specific visas (C, D, I, O, P, Q and R). The first category, specialty or high skills occupations, requires a college degree as a minimum entry-level in the industry. Most CNAs or caregivers do not have a college degree and, even if they do, the college degree must be a standard requirement in the industry. The second category, treaty investor/trader, requires foreign investment with the foreign worker’s own personal finances, and the applicant must be from a country that has a specific type of treaty with the U.S. Not all countries have that type of treaty, and most foreigners in this occupation do not have the type of personal finances needed to meet the investment requirement. The third category, seasonal visas, requires the employer to have a seasonal or intermittent need for that type of positions, and jobs as caregivers and personal care aides are simply not seasonal or intermittent. Lastly, the industry-specific visas include visas for crewmen (C/D), journalists (I), arts, athletics or entertainment (O, P), cultural exchange (Q), or certain religious workers (R). There is no industry-specific temporary visa for the healthcare industry.

Therefore, the best way to retain existing foreign workers who are impacted by the termination of current immigration programs, or attract new foreign workers in order to meet the shortage in the industry, is to pursue permanent residence applications. However, not all foreign workers qualify to be sponsored for permanent residence. Depending on their own immigration and criminal history, among other factors, some workers may be completely disqualified from permanent residence, regardless of their job prospects. Moreover, the process takes months, or longer. Therefore, it must be started well in advance of the expiration of the employee’s existing immigration status, to minimize the risk of a lapse in employment authorization.

That is why a case-by-case assessment by a qualified immigration attorney is essential. At DeWitt, we can assess your needs and the foreign employees’ qualifications to advise whether an employment-based permanent residence case is viable. We will then guide you through each step of the application process, from start to finish. If you would like to know more about immigration options for long-term care employees, please do not hesitate to contact Attorney Raluca (Luca) Vais-Ottosen at (608) 252-9291 or rvo@dewittross.com, or contact your existing DeWitt attorney.

 

https://phinational.org/wp-content/uploads/2017/06/immigrants_and_the_direct_care_workforce_-_phi_-_june_2017.pdf
https://www.bls.gov/emp/ep_table_102.htm
Id.
Id.
https://khn.org/news/severe-shortage-of-home-health-workers-robs-thousands-of-proper-care/
https://www.bls.gov/iif/soii-chart-data-2016.htm, Chart 15
https://www.bls.gov/iif/soii-chart-data-2016.htm, Chart 16

About the Author

Raluca has assisted numerous clients with immigration matters ranging from family-based and individual immigration applications, to employment related visas and I-9 Employment Eligibility Verification issues. In addition to her immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by state and federal agencies, as well as employment litigation.

Contact Luca by email or by phone at (608) 252-9291.

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