Updated Guidance on H1B Eligibility for Nurses

On July 11, 2014, the U.S. Citizenship and Immigrant Services (USCIS) issued a policy memorandum that provides updated guidance to adjudicators to determine whether a particular nursing position meets the H1B category’s specialty occupation requirement. This issue was last addressed by the USCIS in 2002. The recent guidance is intended to reflect some changes in the nursing field that have occurred over the past decade.

Common Challenges When Seeking H1B for RNs

One of the key requirements for a position to be eligible for H1B classification is that it can only be filled by someone with, at minimum, a bachelor’s degree or its equivalent in either the same field or a related field. Historically, many registered nurse (RN) positions have not qualified for H1B classification because the minimum education required for these positions is often only an associate’s degree. Accordingly, it is common for the USCIS to deny H1B petitions filed on behalf of RNs. Challenges and denials remain a problem even for petitions filed for RN positions in hospitals, clinics, wards, or units where each member of the nursing staff holds at least a bachelor’s degree in nursing.

Exception: Advance Practice Registered Nursing Positions

Although the memorandum makes it clear that RNs generally still do not qualify for H1B classification, it reminds officers that certified advance practice registered nursing (APRN) positions typically are considered specialty occupations for which H1B classification is appropriate. The exact requirements for APRN certification are determined by each state, as are the exact titles. The memorandum includes a non-exhaustive list of such APRN occupations, including certified nurse-midwife (CNM), certified clinical nurse specialist (CNS), certified nurse practitioner (CNP), and certified registered nurse anesthetist (CRNA).

Magnet Programs and Other Nursing Specialties

The memorandum acknowledges that there is an increasing preference for nurses who are more highly educated. One example in the memorandum, which appears to be eligible for more favorable treatment in H1B petitions, is any health care organization recognized by the American Nurses Credentialing Center (ANCC) Magnet Recognition Program. These magnet hospitals require at least a bachelor’s degree for any nurse manager of the individual units / wards / clinics, and must have plans to reach a level of 80 percent bachelor’s educated nurses within a set timetable.

The memorandum does not limit H1B qualification to nurses employed within magnet programs. It lists examples of various nursing specialties, including critical care nurses, emergency room nurses, oncology nurses, and pediatric nurses, some of which may be able to qualify as specialty occupations, depending upon the position requirements.

Conclusion

Although not providing any significant new policy on the subject of H1B qualifications for nurses, this latest memorandum should help USCIS officers identify nursing positions that potentially could qualify as specialty occupations. It reflects an awareness of the trend toward higher levels of nursing education as the norm within the health care industry. This memorandum further serves to evidence that the USCIS is mindful of the challenges faced by nurses and their prospective employers in seeking H1B classification, and reminds adjudicators to properly review cases and make fact-based, case-by-case determinations. Employers and nurses who have questions about the employment of foreign national healthcare workers in the United States are encouraged to schedule a consultation with a Murthy Law Firm attorney.

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