Visa Options for Nurses While In U.S.

The continued retrogression of the employment-based third preference category (EB-3) has presented major challenges to foreign nurses who are currently in the U.S.

Visa retrogression occurs when a particular category is oversubscribed and a cut-off date is set by the Department of State. The cut-off date for an oversubscribed category is the priority date of the first applicant whose application for immigrant visa or adjustment of status cannot be processed due to the unavailability of a visa number.

The October 2009 cut-off date for the EB-3 category where most nurses belong is June 1, 2002 for all countries, except India, China and Mexico. In June 2008, the cut-off date worldwide, including the Philippines, but excluding India, China and Mexico was March 1, 2006. The cut-off dates for India, China and Mexico were March 22, 2003, November 1, 2001 and July 1, 2002, respectively.

In July 2007, there were no cut-off dates for the EB-3 category for all countries. Nurses who were able to properly file their I-485 (adjustment of status) by July 31, 2007 were allowed to stay and work.

Because of the current retrogression, a lot of these nurses are left in a quandary. Should they remain in the U.S. or should they go back to their home country?

Nurses usually come to the U.S. on a B-2 visa either to tour or to take their licensure examinations. They are allowed six (6) months to stay with a possibility to extend their status for another six (6) months.

If they remain in the U.S. after their authorized stay, they become deportable. They can neither change to another non-immigrant status nor apply for adjustment.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

They may look for a prospective employer to file an I-140 petition but the approved petition cannot authorize them to stay or work in the U.S.

Some nurses opt to stay and while their I-94 is still valid. They enroll in a school and obtain an F-1 status. However, the duration of their stay under F-1 is dependent on the length of time to finish their coursework. If their academic course work such as English courses is short, it does not serve their purpose of waiting for the EB-3 to become current.

They may take a long course leading to a master’s degree and improve their credentials. They can work part-time while studying and can apply for optional practical training (OPT) after graduation. If visa numbers are still not available by the time they finish their OPT, they may change to H-1B.

Nurses are eligible for H-1B if they will work as upper level nurse managers, advanced practice RNs or nurse specialists.

Other visa options include H-3 (trainee), H-2B (intermittent or seasonal or peak load worker), J-1 (exchange visitor) and H-1C (work in health professional shortage area). If they are Canadian or Mexican citizens, they may be eligible for TN-1 visa.