USCIS Issues New Guidance on H-1B for RNs

By Reuben S. Seguritan

August 06, 2014

In response to the changes in the nursing industry, the USCIS has recently released a new policy memorandum providing guidance in the adjudication of H-1B petitions for registered nurses.

The new memorandum does not contain significant changes to the present criteria for H-1B classification of nursing positions. It maintains that most Registered Nurse positions are not specialty occupations. However, the memo points to some situations where the petitioner may be able to show that a nursing position qualifies as a specialty occupation.

Generally, for a position to be eligible for H-1B, the prospective employer must prove at least one of the following: (a) a baccalaureate degree or its equivalent is normally the minimum requirement for entry into the particular position; (b) the degree requirement is common to the industry in parallel positions among similar organizations; (c) the employer normally requires a degree or its equivalent for the position; or (d) the nature of the duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

H-1B petitions for registered nurses are mostly denied because nursing positions, according to the Department of Labor Occupational Outlook Handbook, generally do not require a four-year bachelor’s degree. However, there are exceptions to this general rule.

The memo made special mention of hospitals with magnet status and how achieving such status “indicates that the nursing workforce within an institution has attained a number of high standards relating to quality and standards of nursing practice.”

Magnet status is conferred to health care organizations that advance nursing excellence and leadership and recognized by the American Nurses Credentialing Center (ANCC) Magnet Recognition Program.

Although the memo did not state in particular that a nurse manager position at a Magnet hospital qualifies for H-1B classification, the memo mentioned that “as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.” This may be indication that the USCIS recognizes such nursing position as a specialty occupation.

Interestingly, the memo also listed a number of nursing positions and the duties associated with the positions. The list includes addiction nurses, cardiovascular nurses, critical care nurses, emergency room nurses, genetic nurses, neonatology nurses, nephrology nurses, oncology nurses, pediatric nurses, peri-operative nurses (operating room) nurses, rehabilitation nurses, and other nurses. Although it did not make specific mention as to which nursing positions would qualify as specialty occupations, the memo indicated that “depending on the facts of the case, some of these RN positions may qualify as specialty occupations.”

Also noted in the memo is a situation where an RN position can be considered a specialty occupation in a state which requires at least a bachelor’s degree to obtain a nursing license. However, as of today, no state is currently requiring a bachelor’s degree for licensure.

Advance Practice Registered Nurses (APRN), on the other hand, generally qualify for H-1B classification because of the advanced level of education and training required for certification. The memo listed the following as APRN occupations that may satisfy the requirements for specialty occupation: Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Nurse Anesthetist.