INS Issues Guidance on H1Bs for Nurses
Posted Dec 27, 2002
On November 27, 2002, Johnny Williams, Executive Associate Commissioner in the Office of Field Operations, issued a memorandum to INS adjudications officers providing guidance on adjudications of H1B petitions for Registered Nurses (RNs). An H1B petition may only be approved if the offered position is in a "specialty occupation," which is defined in the Immigration and Nationality Act as one that requires "theoretical and practical application of a body of highly specialized knowledge" and "attainment of a bachelor's, or higher, degree in the specific specialty or its equivalent." Further, if a particular state requires a license for one to practice her/his occupation, that license is likewise required in order to obtain an H1B approval. These requirements have long posed a problem in nurse cases, as the minimum requirement to be licensed as an RN is generally a two-year degree in nursing (A.D.N.), rather than a four-year bachelor’s degree.
Many RNs, therefore, would not qualify for the H1B classification from the INS. However, it is well established and confirmed by the INS, as well as in Mr. Williams’ memo, that a petitioning employer may demonstrate that a particular RN position could qualify for an H1B by showing the following: (1) that a bachelor's or higher degree (or its equivalent) normally is the minimum requirement for entry into that particular position; (2) that the degree requirement is common to the industry to parallel nursing positions; (3) that the employer normally requires a degree or its equivalent for the position; (4) or that the nature of the position's duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's, or higher, degree (or its equivalent). In determining how the educational requirement translates to comparable experience, INS uses the formula that three years of specialized training and/or work experience is equal to one year of college-level training.
In addition to addressing these well-established, general requirements, Mr. Williams further specifies which RNs may meet these requisite qualifications for the H1B visa. The first class of nurses who generally will be approved is those who are certified advanced practice registered nurses (APRNs). Typically, APRNs are required for: clinical nurse specialists (CNSs), certified registered nurse anesthetist (CRNAs), certified nurse-midwives (CNMs), or certified nurse practitioners (NPs). If an APRN position requires the employee to be certified in that practice, the nurse must possess an RN, at least a Bachelor of Science in Nursing, and some additional, graduate level education. CNSs include Acute Care, Adult, Critical care, Gerontological, Family, Hospice, and Palliative Care, Neonatal, Pediatric, Psychiatric and Mental Health-Adult, Psychiatric and Mental Health-Child, and Women's Health nurses. NPs include Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women's Health nurses.
Other nurses who may qualify for the H1B are those in administrative positions requiring graduate degrees in fields such as nursing or health administration. It should also be noted that, generally, nurses who will work in North Dakota will qualify, as the licensing requirements for that state generally call for a Bachelor of Science in Nursing.
A final, more subjective group that may receive H1B approval includes those who have a nursing specialty such as critical care and peri-operative nurses, or who have passed examinations based on clinical experience in school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics, but who are not APRNs. In these cases, the petitioner must show that the nature of the particular position is so specialized and complex that one would normally expect the person performing the duties to have attained a bachelor's or higher degree, or its equivalent.
This memorandum provides much-needed clarification on which nurses may be eligible for H1B classification at a time when more and more hospitals and health care facilities are searching for foreign nationals to fill the desperate nursing shortage in the U.S. Interested readers should watch MurthyDotCom and upcoming editions of the MurthyBulletin for updates on nursing news as related to immigration.© The Law Office of Sheela Murthy, P.C.
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