The Cost of Being “Essential”

Guest blogger: Nathaniel Austria, law student, University of San Francisco

When the Covid-19 pandemic reached the United States, it came as no surprise that nurses were among the first on the frontlines. Filipino nurses played an essential role in the nation’s recovery and to the return to the normalcy we enjoy today. Although Filipino nurses make up only 4% of the U.S. nursing workforce, they accounted for nearly one-third of registered nurse deaths during the pandemic.^[1] Their sacrifice as "essential" workers was undeniable, as their brave service kept America’s healthcare system running and saved countless lives. It is worth asking whether U.S. immigration policies are honoring their sacrifice and dedication.

The United States has been relying on Filipino nurses for more than a century. This particular migration trend began shortly after the U.S. colonized the Philippines in 1898 and imposed American–style nursing education programs as a part of U.S. efforts for “benevolent assimilation” to ensure peaceful transition after acquisition.^[2] Filipino nurses were trained to meet U.S. licensure standards and were uniquely qualified to fill a shortage of nurses during World War II when the United States first introduced the Exchange Visitor Program. The Philippines remains the world’s largest exporter of nurses worldwide.^[3]

Today, Filipino nurses immigrate primarily through the EB–3 visa category under INA §203(b)(3), which allows employers to sponsor “skilled workers” for permanent residency. Others enter on H-1B visas, which are nonimmigrant visas for “specialty occupations.” Additionally, there was once a H-1C visa program in the 1990’s which ended in the early 2000’s that was specifically created to address nursing shortage, a recurring theme in the American healthcare system.^[4] The H-1C program allowed hospitals in areas of need to hire foreign nurses under certain conditions. These visa policies, in conjunction with the EB-3 pathway for permanent residency cemented America’s dependence on Filipino nurses, who account for 27% of all immigrants who are working as registered nurses.^[5]

Despite America’s dependence on Filipino nurses, the current immigration system often leaves them overly reliant on their employers. In New York, the Asian American Legal Defense and Education Fund (AALDEF) uncovered that Filipino nurses were pressured to sign employment contracts with four different healthcare companies containing “stay-or-pay” clauses that penalized them for leaving before their contract terms ended.^[6] These kinds of working arrangements exploit the visa system’s dependency on employer sponsorship, effectively restricting nurses’ freedom to move or advocate for better conditions. Foreign nurses’ lack of leverage stems from U.S. immigration policies that tie most work-based visas directly to a single sponsoring employer which leaves workers vulnerable to loss of status.

In another instance of this vulnerability, a nurse identified as “Rachel” came to the U.S. through a Florida recruiting agency that required her to sign a contract with a $30,000 “stay-or-pay” clause.^[7] When she began to contemplate leaving due poor working conditions and becoming burnt out, the agency warned that breaking her contract would result in being reported to U.S. immigration authorities. Many Filipino nurses pay thousands for recruitment fees, licensing costs, and travel expenses to these types of recruiting agencies for placement for a promise for a better life, but are told not to disclose their illegal contract or payment structures to U.S. consulates to avoid being denied a work visa.^[8] For fear of losing her legal status, Rachel elected to remain in an unsafe and toxic work environment.

To this day, Filipino nurses continue to migrate to the U.S. to fill continual healthcare shortages, and but many are wary of becoming vulnerable to shifting attitudes in immigration policy under the current Trump administration. A recent GMA News report noted that Filipino nurses are becoming increasingly cautious about accepting placements abroad because of restrictive visa rules and uncertainty about changing immigration policies.^[9] The U.S. should address the inequity in the immigration process by (1) require consulates be given full disclosure of employment terms and recruitment fees; (2) create a government oversight body for regulating the international nurse recruiting industry; and (3) reinstate a more lenient version of the H-1C visa program that guarantees nurses the freedom to change employers without risking deportation.

^[1] https://www.cnn.com/2020/11/24/health/filipino-nurse-deaths; https://www.nationalnursesunited.org/sites/default/files/nnu/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf 

^[2] https://hir.harvard.edu/from-us-reign-to-brain-drain-the-mass-emigration-of-filipino-nurses-to-the-united-states/

^[3] https://www.sciencedirect.com/science/article/abs/pii/S0277953621002136

^[4] https://www.uscis.gov/archive/h-1c-registered-nurse-working-in-a-health-professional-shortage-area-as-determined-by-the-department

^[5] https://www.migrationpolicy.org/article/immigrant-health-care-workers-united-states-2021

^[6] https://www.aaldef.org/press-release/filipino-immigrant-nurses-targeted-with-coercive-stay-or-pay-contracts-secure-settlement-with/

^[7] https://pulitzercenter.org/stories/hidden-system-exploitation-underpins-us-hospitals-employment-foreign-nurses

^[8] Id.

^[9] https://www.gmanetwork.com/news/pinoyabroad/content/934541/filipino-nurses-still-in-demand-in-us-but-wary-of-immigration-policy/story/