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New USCIS Guidance – H-1B Visa for Nurses

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By Ekaterina Powell, Esq.

On July 11, 2014, USCIS released new guidance on adjudication of H-1B petitions for nursing occupations, which superseded the previous USCIS Memorandum of Johnny Williams, INS Office of Field Operations, Guidance on Adjudication of H-1B Petitions filed on Behalf of Nurses, HQISD 70/6.2.8-P (November 27, 2002).

New USCIS guidance has the “Policy” designation, which means that it has to be followed by USCIS adjudicators.

Below is the summary of the most important points of the new guidance.

  • Most registered nurse positions do not qualify for H-1B because they do not normally require a U.S. Bachelor’s or higher degree in nursing as the minimum requirement for entry into the particular positions.
  • Advanced practice registered nurse (APRN) positions normally qualify for H-1B because they require a bachelor’s degree in a specific specialty as the minimum for entry into the occupation. This is because the job duties of APRN also include many additional functions that RNs do not normally perform, such as for example ordering and evaluating test results, referring patients to specialists, and diagnosing and treating ailments. APRNs utilize extended and expanded skills, experience and knowledge in assessment, planning, implementation, diagnosis and evaluation of care required. APRNs focus on patient-centered care, which means understanding a patient’s concerns and lifestyle before choosing a course of action.
  • The following is a non-exhaustive list of APRN occupations that may qualify for H-1B:
  1. Certified Nurse-Midwife
  2. Certified Clinical Nurse Specialist
  3. Certified Nurse Practitioner
  4. Certified Registered Nurse Anesthetist
  • If a state requires at least a bachelor’s degree in nursing to obtain a nursing license, an RN position in that state would generally qualify for H-1B – at this time, no state requires a bachelor’s degree in nursing for licensure. However, state licensure requirements are subject to change.
  • There may be situations when the petitioner may be able to show that an RN position qualifies for H-1B. USCIS will evaluate the facts of each case to determine whether the following positions may qualify for H-1B:
  • Addiction nurses
  • Cardiovascular nurses
  • Critical Care nurses
  • Emergency room nurses
  • Genetics nurses
  • Neonatology nurses
  • Nephrology nurses
  • Oncology nurses
  • Pediatric nurses
  • Peri-Operative (Operating Room) nurses
  • Rehabilitation nurses
  • Other nurses
  • USCIS uses the following criteria to determine whether the particular RN position qualifies as a specialty occupation:
  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the duties [is] so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
  • Specifically, in order to determine whether the particular RN position qualifies for H-1B, USCIS will take into account the following:
    • The nature of the petitioner’s business – The petitioner could substantiate that due the size of the organization, the level of responsibilities of RN is much higher than at other establishments;
    • Industry practices – The petitioner needs to show that it is the industry standard to require an RN in the particular position to have a bachelor’s degree in a specific specialty as the minimum for entry into the position;
    • A detailed description of the duties to be performed within the petitioner’s business operations – The petitioner needs to show that the duties of the particular position go beyond typical duties of an RN and are sufficiently specialized and complex that the knowledge required to perform the duties in usually associated with the attainment of a bachelor’s or higher degree in nursing;
    • Advanced certification requirements – such as for example progressive care certified nurse, critical care RN, critical care RN e-ICU, critical care nurse specialist, acute care nurse practitioner, certified nurse manager and leader, cardiac medicine sub-specialty nurse, and cardiac surgery sub-specialty nurse;
    • ANCC Magnet Recognized status – as evidence that the organization has the majority of RNs with bachelor’s degrees;
    • Clinical experience requirements;
    • Training in the specialty requirements; and
    • Wage rate relative to others in the occupation – if the wage rate is significantly higher than for other RNs, it shows the increased level of responsibility.
  • Administrative Nurse Positions – can they qualify for H-1B? The new Policy Guidance makes no direct mention of Charge Nurses and nurses in other administrative capacities, leaving it unclear whether they can still qualify for H-1B visa. The only notation applicable to nurse managers can be found when the guidance talks about Magnet Recognition program. In footnote 9 to the Policy memo, USCIS states that “as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.” Thus, it seems like USCIS will consider the facts of each case to determine whether the particular position of charge nurse or nurse manager qualifies as a specialty occupation worthy of H-1B visa.
  • Previous USCIS guidance of 2002, on the other hand, specifically mentioned that nurses in administrative positions, such as an upper-level “nurse manager” in a hospital administration position, could qualify for H-1B.

If you are considering filing an H-1B petition for a nurse, our office can help you determine if the particular position could qualify for H-1B and can help you with the entire H-1B process.