OBTAINING AN H-1(B) VISA FOR A PROFESSIONAL NURSE
As the U.S. health care industry has faced the ever growing shortage of
qualified professional nurses, many health care institutions have turned
abroad to fill their needs. Many health care institutions have been surprised
to learn that there is not a quick and easy visa option for bringing
professional nurses to the U.S. The most commonly used work visa in the U.S.
is the H-1(b) visa however, this visa option is generally thought to be
unavailable for most classes of professional nurses. This news can come as
quite a surprise since the H-1(b) category was designed to help alleviate
temporary work shortages in specialty occupations. Only a short while ago,
Congress expanded the number of H-1(b) visas available each year due in large
part to the demand from the IT industry as a result of Y2K and the DotCom and
the shortage of available U.S. workers in the IT industry. No one can argue
that the nursing shortage is no less real than the IT shortage was several
years ago however Congress has yet to respond.
Until 1995 registered nurses had their own visa category, the H-1(a), however
that law was allowed to lapse in August 1995 and was not renewed by Congress.
In 1999, Congress enacted the H-1(c) category designed to help the drastic
nursing shortage however they limited the number of H-1(c) visas to 500 per
year and placed severe restrictions on the category. Unless an H-1(b) visa is
able to be obtained, health care institutions are essentially left with no
alternative but to address the nursing shortage by petitioning for immigrant
visas (green cards) for nurses, a process which can take between a year and
two years and is replete with potential pitfalls. This article will explore
the possibilities of obtaining H-1(b) visas for professional nurses.
The H-1(b) is only available for those positions which meet the definition of
a specialty occupation. “Specialty occupation” has been defined to mean an
occupation that requires “theoretical and practical application of a body of
highly specialized knowledge and attainment of a Bachelors or higher degree in
the specialty occupation (or its equivalent) as a minimum for entry into the
occupation in the United States.” INA §214(i). The INS further clarified
requirements for a position to be judged as a specialty occupation in its
regulations. They state
“specialty occupation means an occupation which requires theoretical and
practical application of body of highly specialized knowledge in fields of
human endeavoring including but not limited to architecture, engineering,
mathematics, physical sciences, social sciences, medicine and health,
education, business specialties, accounting, law, theology, and the arts, and
which requires the attainment of a Bachelors degree or higher in a specific
specialty, or its equivalent, as a minimum for entry into the occupation in
the United States.” See 8 C.F.R. §214.2(h)(4)(ii).
The INS has generally taken the stance that the position of a registered nurse
does not meet the definition of a specialty occupation since many individuals
enter into registered nursing positions with Associates degrees and/or
diplomas that fall short of a Bachelors degree. In a November 1995 memo, the
Acting Assistant Commissioner of the INS set forth the official INS position
with respect to registered nurses and H-1(b) visas. “Service officers are
reminded that pursuant to the statutory definition of a specialty occupation
found in §214(i) of the Act, a registered nurse seeking H-1(b) nonimmigrant
classification must have attained at least a Bachelors degree or its
equivalent. In addition, under §214(i), the minimum entry requirement for the
registered nursing position to be filled is the attainment of a Bachelors
degree or its equivalent in the specialty.” He further goes on to state
“according to the Department of Labor’s Occupational Outlook Handbook, there
is no industry-wide standard that a registered nurse have a baccalaureate
degree to perform the duties of a professional registered nurse.” The
publication goes on to state that “in many states a nurse can obtain a
professional registered nursing license after completion of only a two year
program and successful passage of state licensing examination.” See November
17, 1995 memo from Michael Aytes, Acting Assistant Commissioner to all Service
Center Directors, et al. REF.HQ214h-C.
In December of 2002, the INS released a memo titled “Guidance on Adjudication
of H-1(b) Petitions Filed on Behalf of Nurses”. The essence of the memo is to
reaffirm the longstanding position of the INS and to remind Service officers
that there are certain nursing positions for which an H-1(b) is appropriate.
Specifically the memo states “certain specialized nursing occupations are
likely to require a Bachelors or higher degree, and accordingly, be H-1(b)
equivalent”. The memo provides some specific examples of nursing positions
that the INS believes are likely to qualify for H-1(b). First, positions that
require nurses who are certified advanced practice registered nurses (APRN)
will generally be H-1(b) eligible. These positions include Clinical Nurse
Specialists, Nurse Practitioners, Certified Registered Nurse Anesthetist and
Certified Nurse-Midwife. The INS provided a non-exclusive list of certain
specialties within the advanced practice area that may meet the H-1(b)
standards. These include: 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.
Second, the INS reminded the Service Centers that upper-level management or
supervisory level positions may be H-1(b) equivalent. Third, nursing specialty
positions that require a higher degree of knowledge and skill than a typical
RN position may be H-1(b) eligible. The INS cited critical care and peri-operative
nursing positions as two examples of the many types of nursing specialties
that may require at least a Bachelor’s degree. Fourth, the INS instructed the
Service Centers that if a state requires at least a Bachelor’s degree for
state licensure the position would be H-1(b) equivalent. Currently, the state
of North Dakota is the only state in which a Bachelor of nursing is a
prerequisite to practicing in the field of nursing. It would follow then that
all registered nurse positions in North Dakota would qualify for an H-1(b).
See November 27, 2002 memo from Johnny Williams, Executive Associate
Commissioner, to all Service Center Directors, et al. Ref. No. HQISD
70/6.2.8-P.
The key issue which must be analyzed before determining whether to file an
H-1(b) petition on behalf of a professional nurse position is whether or not
the position qualifies as a specialty occupation. Typically, there is little
dispute as to the qualifications of the foreign national nurse.
The INS regulations have set forth four criteria to be used to determine if a
position qualifies as a specialty occupation. They state:
“for it to qualify as a specialty occupation, the position must meet one of
the following: 1) A baccalaureate or higher degree or its equivalent is
normally the minimum requirement for entry into the particular position; 2)
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; 3) The employer normally requires a degree or its
equivalent for the position; or 4) the nature of the specific duties are so
specialized and complex that knowledge required to perform the duties is
usually associated with the attainment of a baccalaureate or higher degree.“
Although the INS regulations are written in the “alternative” form, as a
practical matter, the INS examiner reviewing the case may in fact demand that
all four criteria be met consequently, it may be advisable to obtain expert
opinions in order to provide guidance to the INS as to the current industry
standard as it applies to that specific position. Under circumstances such as
this, it would seem appropriate to obtain an expert opinion letter from local
nursing schools and/or other health care institutions. In addition, there is a
growing body of evidence to support that for many nursing positions, a
Bachelors degree is the only means by which one could qualify for said
position. The most recent Occupational Outlook Handbook states “some career
paths are open only to nurses with Bachelors or advanced degrees. A Bachelors
degree is often necessary for administrative positions and is a pre-requisite
for admission to graduate nursing programs and research, consulting, teaching
or a clinical specialization.”
In order to determine whether an H-1(b) can be obtained for a particular
position, it is helpful to look at the internal requirements that the health
care institution imposes on such a position. These can normally be found in
job descriptions and/or position definitions. One must also look at the
academic credentials of other individuals who are holding the same position
within the health care organization. In addition, one can look at the hiring
criteria outlined in recruitment materials such as advertisements, job
postings on-line, etc. and if the stated criteria includes a Bachelor’s
degree, one can make the argument the position does meet the definition of a
specialty occupation. If the stated requirements for the position are a
Bachelors degree, and if all other individuals holding said positions also
have Bachelors degrees, then an effective argument can be made that the
position itself qualifies as a specialty occupation.
In an attempt to obtain H-1(b)’s for registered nurse positions, some
recruiting agencies have created a class of nurse employees for which they
require a B.S.N. degree and they have asserted that the H-1(b) should be
approved because the employer met one of the four criteria set forth in the
regulations, i.e. the third criteria, “where the employer normally requires a
degree or its equivalent for the position.” These efforts have largely proven
unsuccessful with the INS rejecting the approach and denying the H-1(b)
petitions. One such organization, Vintage Health Resources appealed the INS
denials to the United States Court of Appeals however the appeal was
unsuccessful. See Vintage vs. Meissner (INS) 201 F. 2d. 384(Jan 17, 2000).
Vintage was a medical contract service agency which brought foreign nurses
into the U.S. locating jobs for them at hospitals as registered nurses.
Vintage sought to have its employees classified as H-1(b) non-immigrants
performing services in a specialty occupation. Vintage produced evidence that
it only hired nurses with B.S.N. degrees. However, the INS claimed that the
proper focus of inquiry should not be what Vintage required but instead what
the contracting hospital facility required. Vintage was unable to show that
the hospitals to which it contracted its nurses required Bachelor degrees.
Vintage was only able to show that such facilities preferred nurses with B.S.N.
degrees. The court argued that Vintage was at best a token employer. The fact
that the nurses would be on Vintage’s payroll was held not to be dispositive
of the issue. The court felt that the hospitals to which the nurses had been
contracted were, in fact, the more relevant employer and that their criteria
or standard for hire would control. The court felt that to rule otherwise
would allow any individual to qualify for an H-1(b) by simply circumventing
the rule through the use of an employment agency. To qualify positions as
H-1(b) appropriate, recruiting agencies must look at the standards enunciated
by the employer where the individual is to be placed. It is worth noting that
these same standards have not been applied by the INS to other occupational
situations where employees are contracted to third parties, such as for
example, IT consultants.
Many health care institutions have chosen not to file H-1(b) petitions for
professional nursing positions under the mistaken theory that an H-1(b) visa
can never be granted to a professional nurse. Such is simply not the case.
Frankly, it is critical that health care institutions educate the INS as to
the evolution of the nursing industry and the fact that there are many more
nursing positions today for which the industry standard is the attainment of a
Bachelors degree. It can only be with this type of education that the INS will
begin to routinely recognize certain nursing positions as meeting the
guidelines of a specialty occupation. It was not that many years ago that the
INS accepted that computer professionals needed Bachelor degrees and that
positions such as programmer analysts, systems analysts, and consultants were
specialty occupations. The INS began to recognize that the IT industry was an
industry whose positions were in transition whereas historically, an
individual may have been a computer professional simply by achieving a two
year Associates degree that the times had, in fact, changed and that such was
no longer the standard. Today the INS routinely recognizes those IT positions
as meeting the definition of a specialty occupation. Similarly, statistics
show that the number of nurses having Bachelor degrees rather than Associate
degrees has changed dramatically over the last 15 years and the expectation is
that such a trend will continue. With the specialization of many nursing
positions, it is believed that health care institutions are now requiring
Bachelor level education for many more positions. We believe that the INS
would look favorably upon H-1(b) petitions being filed by health care
institutions where the facts support the inclusion of a specific position as a
specialty occupation.
Prepared by:
Michael F. Hammond, Esq.
Hammond Law Group, LLC
441 Vine Street
3311 Carew Tower
Cincinnati, Ohio 45202
513-381-2011
www.hammondlawfirm.com