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 Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum.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.
Nursing Positions that Qualify for H-1B Visa
If a nurse has an active RN license but does not work directly with patients and the position is in a specific area such as addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatrics, perioperative (operating room), or rehabilitation, the position may qualify as a specialty occupation.
Additionally, according to its most recent memo published in February 2015, USCIS generally recognizes that Advance Practice Registered Nurses (APRNs) are qualified for H-1B visas “due to the advanced level of education and training required for certification.” The following is a non-exhaustive list of APRN occupations from USCIS that may qualify for specialty occupation: Certified Nurse-Midwife (CNM); Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).
However, having an advanced degree does not necessarily mean that the position qualifies as a specialty occupation. USCIS will further consider whether an occupation is a specialized occupation by reviewing the petitioner’s employment requirements.
USCIS Guidance on Proving a Position is a Specialty Occupation
A petitioner must demonstrate a preponderance of the evidence for an H-1B visa’s petition. The documentation may include as below:
- The nature of the petitioner’s business. Provide all possible evidence that referred to the advanced nature of the medical practice and the need for Bachelor of Science in nursing educated nurses.
- Industry practices. Provide evidence that a degree is generally required throughout the industry for the position such as job advertisement from other institutions with the same title and duties,
- A detailed description of the duties to be performed within the petitioner’s business operations. A job description may include who the nurse reports to; whether the nurse provides guidance or supervision to subordinates; the percentage of time spent in duties tied to the Occupational Outlook Handbook (OOH) duties, etc.
- Advanced certification requirements. The certification requirements may be in favor of establishing that the position is a specialty occupation. USCIS policy memorandum has listed a number of certification for reference such as Critical Care Registered Nurse and Acute Care Nurse Practitioner.
- ANCC Magnet Recognized status. Provide information that the petitioner has been recognized by the American Nurses Credentialing Center (ANCC) or any other credentialing organizations since those organizations set certain standards for practice in nursing such as educational attainment.
- Clinical experience requirement and training in the specialty requirements. Provide evidence that the petitioner in her position has substantial experience and/or have received specific training.
- Wage rate relative to others within the occupation. The petitioner is expected to receive a Level II wage, for example, rather than a Level I wage to be consistent with the higher level of practice.
USCIS utilizes primarily the Occupational Outlook Handbook for reviewing both educational requirements and employment duties to determine whether a position is qualified as a specialty occupation, although other relative persuasive sources still will be considered.
An employer wishing to hire nurses for H-1B visas and are not sure whether the position may qualify should contact our office to schedule a consultation.