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OBTAINING AN H-1(B) VISA FOR A PROFESSIONAL NURSE
April, 2003
Featured in Matthew Bender's Labor Law Bulletin and on ILW.com
Michael F. Hammond, Attorney at Law
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
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