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Sunday, April 12, 2009

INS Provides New Guidance On H-1B Visas For Registered Nurses

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INS Provides New Guidance On H-1B Visas For Registered Nurses

Immigration and Naturalization Service Associate Executive Commissioner Johnnie Williams has issued a field guidance memorandum that for the first time clarifies when a nurse will be eligible for an H-1B nonimmigrant work visa. The memorandum is critical because if a nurse cannot qualify for an H-1B visa, the nurse must wait for a green card to be processed. This means that instead of being able to come in to the US to work for an employer in two to twelve weeks, a nurse could wait eighteen to twenty-four months to enter the US.

The INS made it clear that normal RN positions will not qualify for H-1B visas unless the state where the nurse seeks a license requires a bachelor’s degree. Currently, only North Dakota requires a bachelor’s degree for RNs. The INS did, however, list a number of positions that might qualify for an H-1B visa and the new guidance will hopefully lead to greater consistency in reviewing H-1B petitions.

The following is a summary of the memorandum. The text of the actual memorandum is attached for your review.

General Requirements

In order to qualify for an H-1B visa, an employer of a nurse must show the following:

1. a bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry into the position;

2. the degree requirement is common to the industry for parallel nursing positions (i.e., employers in the same industry require their employees to hold the degree when they are employed in the same or a similar position);

3. the employer normally requires a degree or its equivalent for the position or the nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent).

Employers who can meet these requirements can apply for an H-1B visa.

Advance Practice Registered Nurses

The INS also discusses specific nurse positions. First, advance practice registered nurses (APRNs) will generally qualify for H-1B visas because these are advanced level positions requiring more education and training than the typical RN. An employer may require that the prospective employees hold advanced practice certification as one of the following: clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), certified nurse-midwife (CNM), or certified nurse practitioner (APRN-certified). If the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess an RN, at least a Bachelor of Science in Nursing (BSN), and some additional graduate level education.

The INS lists the following positions that will normally qualify for an H-1B visa:

• Clinical Nurse Specialists (CNS): Acute Care, Adult, Critical Care, Gerontological, Family, Hospice and Palliative Care, Neonatal, Pediatric, Psychiatric and Mental Health-Adult, Psychiatric and Mental Health-Child, and Women’s Health

• Nurse Practitioner (NP): Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women’s Health.

• Certified Registered Nurse Anesthetist (CRNA); and

• Certified Nurse-Midwife (CNM).

Administrative Positions

The INS will also approve H-1B visas for certain administrative nurse positions. According to the INS memorandum, "upper level nurse managers" in hospital administration positions may work for H-1B visas since these positions usually require bachelor’s degrees. Nursing Services Administrators should work since these positions involve supervisory functions and they typically require a graduate degree in nursing or health administration.

States that Require Bachelors Degrees

As noted above, the INS will consider an H-1B visa to be appropriate for any RN if the state where the nurse's position is requires a bachelor's degree. Right now only North Dakota has such a requirement. This raises the intriguing possibility of making North Dakota a gateway for employers seeking to bring nurses to the US quickly. Two possible scenarios come to mind:

1. A nurse contractor establishes an office in North Dakota and petitions for the nurse to enter North Dakota for their initial orientation with the contractor employer. The employer then files for an I-140 and concurrently files for an I-485 petition and employment authorization document. After the employment document is approved, the nurse could then move to a different state.

2. North Dakota health care facilities and employers can take advantage of this loophole and have easy access to foreign nurses. They can then take advantage of this unique market position and potentially spin off their own staffing companies or cut deals with existing staffing companies to contract their nurse employees to health care facilities around the country using the I-140/I-485 process noted above.

Specialized Nurse Positions

Aside from the Advanced Practice Registered Nurses noted above, nurses in certain specialized areas may file for H-1Bs. The INS specifically cites critical care and peri-operative (operating room) nurses as two examples of positions requiring a higher degree of knowledge and skill than a typical RN or staff nurse position. The INS indicates that passing a certification examination for a particular type of position is an important indicator. Examples of these types of certification examinations are school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics.

Such nurses should meet the general requirements noted above. Evidence to show these requirements could include affidavits from independent experts or other means showing that the job duties are so specialized and complex that a bachelor's or higher degree is appropriate. The INS notes that these cases will be adjudicated on a case-by-case basis so the outcome of such applications is far from certain.


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