USCIS Clarifications on H-1B Nurse Requirements Open Door for More Approvals

In a policy memorandum dated July 11, 2014, USCIS has provided some guidance and clarifications as to the applicable standards for adjudication of H-1B petitions for nurses.   While USCIS continues to maintain the position that most nurses may not qualify for an H-1B due to the fact that a bachelor’s degree is not normally requires, the policy memorandum highlights specific situations and factors which would help a determination that a specific nursing position is specialized enough to warrant an H-1B.    We welcome this (overdue) policy memorandum as it provides a clearer guidance as to which types of nursing positions may qualify for an H-1B work visa.

Background of H-1B for Nurses

Most of our readers are aware that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation (normally, a position requiring a bachelor’s degree or higher).   The government has taken the position that most registered nurse (RN) positions do not qualify as a specialty occupation because such positions do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those particular positions.   There are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specific specialty as the minimum for entry into these particular positions.

As a result, there has often been ambiguity as to whether a specific nursing position would qualify for an H-1B work visa or not.   Our office, for example, has handled variety of nursing H-1B cases and so far the success factor has been a showing of advanced or highly-specialized nursing requirements.

The Policy Memorandum Recognized Shift Towards Employers Increasingly Requiring Nurses with Bachelor’s Degree or Higher

The policy memorandum reiterates the general position that nursing positions do not normally require a bachelor’s degree and, as a result, would not fit within the scope of the H-1B work visa.  At the same time, however, the policy memorandum makes an important recognition that the private sector in the U.S. is increasingly showing a preference for “more highly educated nurses.”     The policy memorandum goes on to make a specific distinction that certain nursing positions would actually meet the “specialty occupation” definition and would qualify for H-1B.   This is an important step towards recognizing H-1Bs for nurses.

At the same time, the policy memorandum also specifies that advance practice registered nurse (APRN) positions use skills, experience and knowledge which are consistent with the “specialty occupation” standard and for APRN nursing positions, an H-1B should be approved.  Specific (but not complete) examples of APRN occupations cited in the policy memorandum which should qualify for H-1B are Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner and Certified Registered Nurse Anesthetist.

The policy memorandum also includes some suggestions on the type of factors to be presented and considered when adjudicating an H-1B application for a nurse-type position.    In addition to normal employer and industry practices, the adjudicator may consider advanced certification requirements, ANCC Magnet recognition status, clinical experience requirements, training requirements and wages relative to others in the position.     This kind of list with suggested factors/evidence is very helpful in preparing a strong H-1B work visa application for a nursing position.

Conclusion

We welcome this policy memorandum as it provides an overdue clarification of the H-1B standards as they apply to nursing positions.    The policy memorandum recognizes shifts in the private industry marketplace where more and more nurses perform more complex skills and more and more employers seek nurses with advanced level of skills and education.    The arguments and factors outlined in the policy memorandum should provide more clarity and, hopefully, certainty in the H-1B application process for employers who are seeking to sponsor an H-1B work visa for a nurse.

We are happy to consult employers who are considering filing for H-1B petitions for nurses.  Our office focuses its practice on employment-based immigration matters and we have handled a variety of immigration cases for hospitals, medical facilities and similar health-care related employers.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.  If our office can be of any help, please feel free to contact us.