H-1B for Nurses

Overview

Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position – typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree.

Recent Developments at USCIS

In 2002, legacy Immigration Naturalization Service (INS) issued a memorandum providing guidance on this issue and essentially stated that most RN positions would not qualify for an H-1B visa unless the petitioner can establish that the job offered requires at a minimum a college degree. Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum. The 2014 memo that was later finalized in yet another memo in 2015 discusses the changing industry for nurses and that employers now increasingly expect nurses to have a college degree; however, the adjudicatory standard that USCIS uses to review H-1B applications for nurses has remained essentially unchanged. Currently, the requirements of H-1B for nursing are as below: 

  • The position is a specialty occupation;
  • The nurse has a degree or equivalent pursuant to H-1B regulations;
  • The nurse has passed the foreign nurses exam (NCLEX-RN); and
  • The nurse has passed the state licensure.When an applicant is required to prove a lawful employment before obtaining the license from the state or local authority, and the license is required to practice the profession, USCIS will approve a one-year H-1B petition for the applicant to work on obtaining the license. However, the request to extend the H-1B visa will be denied if the applicant is ultimately unable to obtain the license. 

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Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers

H-1B visas are nonimmigrant visas granted to bring a limited number of “specialty workers” to the United States each year.  To qualify as a specialty worker, a beneficiary typically needs a degree and/or specialized training.  The H-1B visa program allows American businesses to fill positions with highly-qualified foreign workers while simultaneously protecting the interests of U.S. workers.

On April 9, 2015, the USCIS Administrative Appeals Office (AAO) issued its precedential decision in Matter of Simeio Solutions.  (26 I&N Dec. 542, 2015.)  This case has significant implications for H-1B workers and employers, as it changes the obligations of H-1B employers if the location of the worksite changes after the petition is filed.           

The Matter of Simeio Solutions

In this case, a would-be H-1B worker requested an H-1B visa at U.S. Embassy office in India, and provided information that contradicted the petition filed on his behalf.  The Embassy returned his petition to California for review, and USCIS began an investigation.  USCIS visited the address that was filed as the place of employment, and found the company had moved to a new location.  USCIS issued a Notice of Intent to Revoke (NOIR) the approved H-1B petition.  The petitioner responded with two new work locations and corresponding Labor Condition Applications (“LCAs”) as the places of employment for the beneficiary.  Both locations were outside of the Metropolitan Statistical Area (MSA) of the original petition, and both areas had higher prevailing wages.  USCIS determined (and the AAO later affirmed in the Simeio opinion) that this constituted a material change in the terms of employment which required a new or amended H-1B petition.

The details of the case are much less significant that the ultimate holding.  Simeio states definitively that a qualifying relocation of the job of an H-1B beneficiary to a new geographical area of employment absolutely triggers the requirement for a new LCA and an amended H-1B petition.  Precisely what constitutes a “new area of employment” is tricky, but crucial, and will be explored in depth.

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Basic Overview of the H-1B Visa Qualifications and Procedures

Background and Basics

The H-1B is a non-immigrant visa that allows United States employers to petition on behalf of a foreign national employee to work in a “specialty occupation” on a temporary basis. While the configuration of the visa program has changed over the years, the current H-1B program has been in effect since the Immigration Act of 1990. Qualifications for specialty occupations will be discussed in more detail, but are generally comprised of highly educated workers like scientists, economists, engineers, and doctors. In fact, almost two-thirds of H-1B visa applicants work in the STEM fields (science, technology, engineering, mathematics). These visas do not include workers who may qualify for an O visa (those with extraordinary ability) or P visa (entertainers and athletes). However, fashion models with “distinguished merit and ability,” as measured by prominence in the field, may qualify for H-1B visas.

The goal of the H-1B visa program is to enhance the U.S. economy by bringing skilled foreign workers to fill employments gaps in fields or geographical areas where American workers are lacking. Program guidelines stipulate that hiring the foreign worker must “not adversely affect the wages and working conditions of similarly employed U.S. workers” This is one of several provisions of the program designed to protect American workers.

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USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015

L-1 Visa Background Information

L-1 visas are non-immigrant visas specific to the employees of multinational corporations. These visas provide a means to transfer employees currently working for the company abroad to an affiliated U.S. operation. L-1A visas allow higher-level employees such as executives and managers to transfer to a U.S. company. The L-1B category encompasses other current employees who hold “specialized knowledge” in the field or of the company.

The L-1 visa program began in 1970 to further U.S. business interests by expanding the limited options available to bring workers from the international business community stateside. The requisite “specialized knowledge” was not explicitly defined, however, until the Immigration Act of 1990. Since 1990, USCIS has issued several policy memoranda to clarify the specific criteria required to demonstrate specialized knowledge. Each of these memos sought both to clarify the evidence that a petitioner needs to present, and to reflect more clearly the congressional intent of the L-1 visa program. In creating the L-1 program, Congress sought to “promote the United States as a global business destination” by facilitating international business through the expansion of opportunities for foreign nationals to work for their international company within the United States.

Contrary to the intent of Congress to increase international business, and efforts by USCIS to clarify the L-1B adjudication process, petition denial rates skyrocketed from six percent in FY2006 to thirty-five percent in FY2014. While a confluence of factors likely contributed to this pattern, in November of 2014, President Obama’s vowed that a final memorandum that would clarify L-1B decision-making and help rectify the issue as part of his executive actions on immigration. It has been the hope of stakeholders that new guidance would finally provide predictability to the adjudication process.

USCIS’s Latest L-1B Policy Memo

USCIS posted their Interim Policy Memorandum on L-1B Adjudications Policy on March 24, 2015 (Memo). A period of feedback on the proposed changes was open to stakeholders until May 8, 2015. USCIS is currently taking feedback under advisement, and the Memo, as published or possibly incorporating suggested changes, will go into effect August 31, 2015.

The Memo seeks to clarify the following in respect to L-1B claims: the applicable standard of proof; the elements necessary for approval; the definition of and evidence determining specialized knowledge; factors to be considered in corroborating proof of specialized knowledge; and how qualifying employment (both regular and offsite) can be demonstrated.

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