I am posting 2-part articles that I’ve read on Manila Bulletin and googled on the web about possibilities of Nurse’s deployment to US. My unsolicited opinion about this is for everyone concerned to be very CAREFUL and INTUITIVE before signing any contract with any agency/employers.
The old cliche applies : An ounce of prevention is more important than a pound of cure.
Now, read on and learn…
The RN Contract Trap
Posted on: 03/05/2009
By Attorney Robert L. Reeves and Joseph I. Elias
For many foreign nurses (RNs) the chance to immigrate to the U.S. is the opportunity of a life time. For so many, immigrating to the U.S. is the reason they went to nursing school and took up the profession. Many others, such as marketing majors, physicians, computer engineers, etc. have switched professions to become nurses in order to immigrate to the U.S.
Immigrating as an RN is one of the fastest paths to a green card or permanent residency. This is because the U.S. Department of Labor has determined that there is an acute shortage of RNs across the entire U.S. The steps for sponsoring an RN were subsequently streamlined allowing RNs to immigrate faster than most other occupations.
The shortage spurred the growth and creation of hybrid industries such as nurse registries and temporary nursing staff companies. These types of companies assign nurses on a temporary basis with their client hospitals, medical facilities, and private homes. A nurse working for one of these companies for example, might find herself working at Hospital A for 2 days out of the week and Hospital B for 3 days. Then, a few months later, working 4 days for Hospital C. The RN goes wherever her employer has been contracted to provide services. She is not an employee of the hospital, but rather the registry company.
Because of the shortage, various RN employers (hospitals, agencies, RN staffing companies) heavily recruit for RNs overseas. Foreign RNs who wish to immigrate are delighted at the opportunity the recruiters offer and are often all too eager to sign up.
While this path may be one of the easiest ways to immigrate, it is not without its pitfalls. Employment-based sponsorship means the RN will be allowed to immigrate if the RN intends to work on a permanent basis for the petitioning employer. This is a critical condition of immigrating that carries consequences if not fulfilled.
During the typical recruitment process, the RNs are promised sponsorship in exchange for working for the employer. Contracts are prepared and representations are made regarding the nature of work, type of work, place of work, working conditions and wages. Many RNs are so eager to immigrate, they do not carefully read these contractual documents, ask serious questions regarding the terms and conditions, or have the contracts reviewed by their own attorney.
In the excitement of the prospect of immigrating to the U.S. many RNs are seduced with the notion that the dream job awaits them in the U.S. For some this is true, but for many, it has drastic consequences. The RNs gloss over the contracts and assume an attitude of, “I’ll deal with it later.”
The most common contractual clause that wreaks havoc on an immigrating RN’s life is the breach of contract damages clause. Most contracts typically require the RN to work for a specific number of years and failure to do so triggers the damages clause. The damages can range from $15,00 to $50,000 dollars!
Many RNs signing these contracts are unfamiliar with the litigious culture in the U.S. Some come to the U.S. and find the working conditions and salaries they were told they would receive are not the same as represented when first recruited. Some conditions are so unbearable. For example, being placed in graveyard shifts in hospitals far from home. Or, not being placed in any hospital and collecting no salary while the sponsor tries to obtain a new client for the RNs placement. Many of these RNs then leave their employers and this is when additional tragedy strikes.
The employer begins a campaign of harassment and may sue for breach of contract and obtains a judgment against the RN for the penalty amount. The judgment typically comes with a wage garnishment order. This means the RN’s new employer is required to pay a portion of the RN’s wages to the sponsor to cover the judgment. Because RNs are in a licensed occupation requiring a reporting of where they work, it is very simple for the sponsor to locate the RN and exact the judgment.
But, worse than a breach of contract is the possible immigration consequence. The RN has obtained permanent residency because she stated she intends to work on a permanent basis for her sponsor. By leaving or changing employers shortly after entering the U.S., she has now opened the door for the Immigration Service to revoke the green card! Some employers immediately notify the Immigration Service when an RN leaves exposing the RN to possible green card revocation and deportation.
For many others, the immigration consequence comes several years later when the RN is applying for U.S. citizenship. The Immigration Service reviews the basis of the green card and determines how long the RN worked for her sponsor. If it determines that the RN has only worked for a short period of time, it may begin revocation and deportation proceedings against both the RN and her family members who obtained green cards through her.
These tragic consequences can be avoided by careful review in the beginning. For many of those currently in the position, there is still immigration and contractual relief available. The U.S. Constitution prohibits slavery and indentured servitude and because in many cases the sponsoring employer breaches the contract, the employee is not liable for any damages. This core constitutional value is the basis for providing relief to those forced to leave their sponsors. This will be the subject of our second part of this article.
The RN Contract Trap Part II
Posted on: 03/19/2009
By Attorneys Robert L. Reeves and Joseph I. Elias
This is the second of a two part article on RNs who immigrate to the U.S. and find themselves the subject of penalizing employment contracts. In the previous article we discussed the RNs immigrating to the U.S. with a hope and promise of a good job and a green card. But, sadly, upon arriving, they experience an entirely different picture than what was represented to them when recruited overseas.
For many, the working conditions are not as promised. They were told that they would be working at a specific hospital in a safe environment, only to find out that the position is in a different hospital, in unsafe neighborhoods, or even in completely different cities and states than promised. Others find that the “agency” or employer has no work for them. They wait several weeks or even several months without receiving a pay check or full time work hours. Many others find that the wages they are receiving are lower than the actual wage they were told they would receive when recruited. Others become virtual prisoners because they are told that they cannot leave their homes because they are on call 24/7 and will need to report to work at a moment’s notice. No set schedules force them to stay home, by the phone, waiting for the call to come into work. If the RN does not show up for work, she can be found in breach of contract.
These experiences are more typical of nurses recruited by staffing companies or nursing agencies. The staffing company may have had a contract with the hospital promised, but lost it prior to the RN’s arrival to the U.S. The staffing company then must try and find new clients to place its RNs.
RNs who find themselves in these predicaments can only tolerate this for a limited period of time. They are in a strange country with no friends or family and do not know what to do or what their rights are. They must borrow from friends, or life savings to survive. They have limited access to the outside world. Eventually they can tolerate no more and forge out on their own to look for more stable jobs and better living conditions.
This is when the employer’s harassment campaign may begin. The employer may even sue the RN for breach of contract and damages in the tens of thousands of dollars. The contract usually sets a state other than where the RN is living or working as the forum for disputes. The RN does not appear in court to defend her actions and the employer receives a default judgment. The employer then uses the judgment to garnish the wages of the RN who is very easy to track. Typically, an attorney in the city the RN is residing in is hired by the employer to obtain a local order to enforce the out of state judgment. The employer may also notify the Immigration Service that the RN has left employment and has not honored her requirement to work for the employer. Many employers also file, or threaten to file complaints, with the nursing board that the RN is a threat to her patients and that her license should be revoked. This can lead to revocations of licenses.
Any of these actions, if left unchecked carry very serious consequences. The RN’s credit rating can be ruined as a result of the judgment. Wages at new employers can be garnished which leaves an unpleasant taste in the new employer’s mouth. Segregating a portion of wages is an additional administrative burden most employers do not want to handle. Many RNs, after a few years of savings, try to buy homes and cannot because their credit has been ruined by the judgment.
Perhaps the harshest consequence is for those RNs who have their green cards stripped and find themselves in deportation proceedings by the Immigration Service. This is done because the RN was given a green card to work permanently for the employer. The Immigration Service interprets a resignation within a few months of immigrating to the U.S. as proof the RN never intended to work permanently for her employer. She therefore was not eligible for the green card to begin with and it must be revoked.
It is therefore of the utmost importance that RNs who find themselves in an unbearable situation to nip the employer’s action in the bud. The RN should not ignore the employer’s legal and immigration threats, but should address them head on at the outset.
Usually, an RN in this situation has her own cause of action against the employer for its breach of contract. The RN can sue for back wages and challenge out of state judgments. While many states find an employer has a right to recover the reasonable costs for replacing an RN, the large dollar amounts are viewed by many courts as prohibited and unconscionable penalties and liquidated damages. Unfounded complaints, or threats of complaints to licensing agencies, can also be grounds for defamation suits against the employer. Many courts may find the contracts one-sided and unconscionable that the entire contract is voided out.
Immediately challenging the employer also creates a record that can be used to prove to the Immigration Service that the RN had every intention of keeping her obligations to work permanently for the employer. The RN can show that her employer breached the contract and promises. Forcing her to remain working for the employer under these circumstances could be considered endorsing slavery or indentured servitude.
RNs who did not challenge the employer from the outset will have to work harder to demonstrate to the Immigration Service that they had the intent to work permanently. The challenge typically comes when an RN applies for citizenship. The Immigration Service will revisit the basis of the RNs green card and then determine if the RN met her obligation to her employer. The complaint filed by the sponsoring employer, no work history, or a short work history will be deemed by the Immigration Service as proof that the RN never intended to work for the employer. This will be the basis for revocation of the green card.
RNs in this situation must document the circumstances that forced them to leave. They must show why remaining with the employer would have been tantamount to slavery or indentured servitude. The U.S. Constitution prohibits slavery and indentured servitude and because in many cases the sponsoring employer breaches the contract, the employee is not liable for any damages. This core constitutional value is the basis for providing relief to those forced to leave their sponsors. RNs trapped in an unconscionable contract should seek immediate legal assistance in order to preserve their rights, their dignity, and their immigration future.