According to the American Association of Colleges of Nursing, the United States is projected to experience a nurse shortage as a generation of Americans age and the need for healthcare increases. This shortage in nurses could potentially be a problem for healthcare employers, but thanks to a new policy memorandum recently issued by the U.S. Citizenship and Immigration Services on July 11, 2014, healthcare employers may have a solution: the H1-B Petition.
The H1-B visa process allows a U.S. employer to petition to hire a foreign employee to work in a specialty occupation. “Specialty occupation” is specifically defined in the regulations as an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) a bachelor’s or higher degree in the specific specialty as a minimum requirement for entry into the occupation in the United States.
For approximately the past 12 years, registered nurses have not generally been considered a specialty occupation because of the second prong: the requirement for a higher degree. Most registered nurse positions require only an associate’s degree or certificate of nursing instead of a bachelor’s degree or advanced degree. However, in recent years, the landscape of nursing has changed. Industry practice reflects an increasing demand for nurses with niche practices like oncology, rehabilitation, genetics, pediatrics and critical care, as well as a demand for Advanced Practice Registered Nurses such as Certified Nurse-Midwifes, Certified Nurse Practitioners, and Certified Registered Nurse Anesthetists.
Employers that want to hire a nurse from outside the United States must establish that the proffered nursing position meets all of the provisions contained in the statute and regulations. Specifically, employers must prove that the nursing position meets at least one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- 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.
The policy memorandum regarding adjudication of H-1B Petitions for Nursing Occupations is a helpful resource for healthcare employers. It sets forth the burden (“preponderance of evidence”) that employers would have to meet, and provides a non-exhaustive list of examples of evidence that may be considered:
- The nature of the petitioner’s business;
- Industry practices;
- Job duties description;
- Advanced certification requirements;
- Clinical experience requirements;
- Specialized training; and
- Rate of pay in relation to others within the occupation.
While the policy memorandum specifically addressed nurses, healthcare employers facing personnel shortages in a number of specialized areas should consider whether the H1-B Petition would be a viable alternative solution.