A recent policy memorandum by USCIS clarified the agency’s position on approving H-1B cases for nursing positions. This is not a radical departure but rather an evolution in the government’s views on when registered nurse (RN) positions would qualify for H-1B classification.
H-1B visa classification, in general:
The H-1B employment visa classification is for professional workers who are employed in specialty occupations. A “specialty occupation” is one that 1) usually requires at least a bachelor’s degree or equivalent to perform the job duties, 2) a bachelor’s degree requirement is common for other similar positions in the industry, or 3) the position is so complex that it can only be performed by someone with at least a bachelor’s degree. A “professional” is someone who has a bachelor’s or higher degree (or foreign equivalent) or a combination of education and/or progressively responsible experience that is equivalent to a bachelor’s degree.
Visa classifications currently available to nurses:
Historically, it has been challenging for foreign nurses to obtain work authorized status in the U.S. There have been temporary measures implemented over the past years such as the now defunct H-1A and H-1C visa categories. Both of these visa classifications have already expired and were not reauthorized by Congress. This leaves foreign nurses willing to work in the U.S. with very limited options. RNs who are Canadian or Mexican nationals may apply for TN visas under the North American Free Trade Agreement. For all others, the H-1B classification remains the only viable option.
USCIS view on using H-1B classification for nursing positions:
USCIS has traditionally taken the view that most RN positions do not qualify for H-1B classification because it is not absolutely necessary to have a bachelor’s degree to work as a RN. However, as medical procedures become more and more complex, RN job duties have also become sufficiently complex that now it is standard for many health care employers to require at least a bachelor’s and even a graduate degree for nursing positions. USCIS recognizes that certain RN positions qualify for H-1B status depending on the complexity of the job duties. Advanced practice RN positions that typically involve advanced levels of education and training such as Nurse Anesthetists, Nurse Midwives, Clinical Nurse Specialists, and Nurse Practitioners are likely to qualify for H-1B classification as well.
Practice tips for successful H-1B nursing cases:
The nature and complexity of the job duties remains the primary factor in determining whether H-1B classification is appropriate for a particular nursing position. Possessing a bachelor’s or even an advanced practice registered nursing degrees is necessary but not enough to qualify for H-1B status. The H-1B petition should describe the nature of the employer’s business and include a very detailed job description specifying the tasks to be performed. The job description must highlight the complexity of each task with as much specificity as possible. Where the petitioner employs other workers in similar nursing positions then it could document that it has consistently required a college degree for all of these positions as well. The case should also summarize any relevant education requirement practices for similar positions in the industry as a whole. Finally, the petitioner should discuss the applicable education, experience, training and certification requirements and explain why someone with less than a bachelor’s degree cannot perform the job duties.
In sum, RN H-1B cases remain challenging but the government is starting to at least recognize that more and more RN positions today may require college level education and qualify for H-1B status. Remember, it is the petitioner who always has the burden to explain and document the nature of the particular job position when filing H-1B cases.