Liberalization in I-140 Adjudication for Nurses
Posted Jan 17, 2003

To provide MurthyDotCom and MurthyBulletin readers with the latest information on nursing immigration issues, we have summarized here a December 20, 2002, INS Memorandum from Thomas E. Cook, Acting Assistant Commissioner at the Office of Adjudications. This Memo was directed to the INS Regional Directors, District Directors, Officers-In-Charge, Service Center Directors, and the Administrative Appeals Office Director.

Background

Prior to this Memorandum, INS would generally only approve a Schedule A I-140 petition for a nurse who either passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) Qualifying Exam or had a full and unrestricted (i.e., permanent) license to practice nursing in the state of intended employment. Some states do not require nurses to complete the CGFNS Qualifying Exam in order to obtain a state license if the nurse has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN), a multi-state nursing examination.

The NCLEX-RN is only offered in the United States and a number of nurses enter the U.S. on B-2 visas for the purpose of taking the NCLEX-RN. However, even if they pass the exam they are unable to obtain state licenses in any state that also requires social security numbers. The Social Security Administration will not issue social security numbers for nonimmigrants who have not been issued employment authorization by the INS. As a result, many nurses who were admitted to the United States and had passed the NCLEX-RN did not meet the requirements to obtain approval of the I-140 Schedule A Nurse Petition.

On October 2, 2002, the Department of Labor (DOL) advised INS that, in adjudicating I-140 petitions on behalf of nurses, INS may also accept documentation that the foreign national nurse has passed the NCLEX-RN examination as proof of eligibility for Schedule A labor certification. In light of this new development, INS has changed its policy for adjudicating I-140s for foreign national nurses.

Change in Policy

The Memorandum instructs all Service Centers to favorably consider an I-140 petition from a foreign national nurse who presents a certified copy of a letter from the state of intended employment confirming that this nurse has passed the NCLEX-RN examination and is eligible to be issued a license to practice nursing in the state. These I-140 petitions are to be considered eligible for Schedule A labor certification. Nurses will no longer need the actual state license for approval of the I-140. The requirements for approval of adjustment of status or consular processing for an immigrant visa remain unchanged, however.

Conclusion

This change in policy opens the door for more foreign national nurses to obtain approval of their I-140s and move the U.S. another step towards easing the nursing shortage. A foreign national nurse should be careful not to interpret this Memorandum as unfettered authorization to file the I-140 and I-485 while in the U.S. on a B-2, as the B-2 visa carries nonimmigrant intent. Attempting to adjust status, while holding a visa with nonimmigrant intent, may be construed as fraud in some situations. However, the Memorandum does provide nurses with a means to avoid taking the CGFNS qualifying exam for a state that only requires the NCLEX-RN and may result in the nurse's reaching his/her intended destination in one of the many short-staffed hospitals or medical care facilities in the U.S. more quickly. Watch MurthyDotCom and the MurthyBulletin for exciting developments in this area of U.S. immigration.