On July 11, 2014, the U.S. Citizenship and Immigration Services (USCIS) released its first policy memorandum (PM) in nearly twelve years on the subject of evaluating nursing positions for H-1B nonimmigrant visas. While USCIS, through the PM, does not announce any major policy shifts and reaffirms the general notion that the typical nursing position does not qualify for H-1B classification, USCIS does acknowledge that the medical field is changing in ways favorable to employers seeking H-1Bs on behalf of registered nurses (RNs).
The H-1B, one of the most well-known temporary work visas, is sought by an employer on behalf of an employee that will fill a “specialty occupation,” meaning a position that normally requires at least a U.S. bachelor’s degree in a specific specialty field or its equivalent. While professionals such as accountants, doctors, engineers, and professors generally qualify for H-1B classification, RNs generally do not because RN positions do not normally require at least a U.S. bachelor’s degree in nursing or its equivalent. Most employers will accept licensed RNs that have less than a bachelor’s of science degree in nursing (BSN) such as an associate’s degree in nursing (ADN) or diploma from an approved nursing program. In addition, no state currently requires a BSN for licensure. In the PM, USCIS does hint that states can always change their licensing requirements and were a state to require a bachelor’s degree for licensure, a RN in that state would likely be considered a specialty occupation. More importantly, USCIS does acknowledge that the nursing profession is advancing and, as it does, so may its minimum requirements.
After USCIS cautiously notes in the PM that RNs generally will not qualify for H-1B visas, it proceeds to discuss that there is a grey area where exceptions may emerge. As more nurses are pursuing BSN degrees and there is a growing preference by employers for nurses with advanced education, some nurses may qualify for H-1B visas. Similar to its 2002 PM, USCIS acknowledges this grey area, but appears unwilling to make dramatic shifts in its adjudication of H-1B petitions for nurses and instead indicates it will continue to adjudicate cases on a case-by-case basis. The restrained guidance USCIS does give indicates that an employer, seeking to obtain H-1B classification on behalf of an RN (and overcome what is effectively a presumption that an RN position does not qualify), should submit evidence concerning:
- The nature of the petitioner’s business
- Industry practices
- A detailed description of the duties to be performed within the petitioner’s business operations
- Advanced certification requirements
- ANCC Magnet recognized status
- Training in the specialty requirements
- Wage rate relative to others within the occupation
In the PM, USCIS lists several nursing positions (critical care nurses, emergency room nurses, rehabilitation nurses, etc.) that fall into the grey area and states that “[d]epending on the facts of the case, some of these RN positions may qualify as specialty occupations.” Obviously, the stronger the case the employer builds, the more likely the employer will overcome the high bar set for nursing positions seeking H-1B classification.
Also, the USCIS PM continues to draw a distinction between RNs and Advanced Practice Registered Nurses (APRNs). As stated in the PM, APRNs “will generally be specialty occupations due to the advanced level of education and training required for certification.” However, USCIS did use the PM to remind the public that an APRN will only qualify for H-1B classification if the position minimally requires an APRN certification. In other words, just because a nurse is an APRN does not mean the nurse will qualify for H-1B classification since it is not the nurse’s credentials, but the position’s minimum requirements that matter.