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On Nurses and Tourist Visas

by Christopher T. Musillo, Esq.

At present it ordinarily takes about one year for a foreign-born nurse to enter the United States and begin working. Because of this lengthy process, many hospitals and nurse recruiting organizations are seeking quicker means to begin employment. One such approach is to bring nurses into the United States on tourist visas and have the nurses sit for NCLEX in the state where they intend to become employed. Subsequent to the passing of the NCLEX and the issuance of the state license, employers seek to Adjust the nurse's status to that of Permanent Resident. Contemporaneous with the filing of the Application for Adjustment of Status, the nurse also files an Employment Authorization Document (EAD). It ordinarily takes 90 days for the INS to issue an EAD approval. The approval of the EAD grants the nurse valid lawful work authorization. With work authorization, the nurse can immediately begin working for her sponsoring hospital. On its face this approach is valid; upon deeper review it is unsound.

An Application for a Change or Adjustment of Status must not be an attempt by an alien to circumvent the normal visa issuing processes abroad. An alien's conduct between entry and the filing of an Application for Adjustment of Status is relevant to the issue of "preconceived intent". The INS will look to the nature of an alien's activities after entry in the U.S. in order to determine whether or not an Adjustment Application will be approved. In order to make this intent determination, the Unites States has adopted a 30/60 day rule. When a person enters the U.S. on a tourist visa and actively begins seeking employment within 30 days, the alien is usually presumed to have misrepresented his intention in seeking the entry. On the other hand if the alien waits longer than 60 days the government will ordinarily not revisit the issue of preconceived intent, although it always retains that right.

Therefore only rarely should an alien file an Application for Adjustment of Status and EAD petition less than 60 days after entry into the United States. Moreover, insofar as it takes 90 days for EAD approval, it is improbable that a nurse can gain valid lawful work authorization less than five months from the date of her entry into the United States.

The preconceived intent issue is not one which should be lightly considered. The finding of misrepresentation of intent is akin to a finding of fraud and can serve as a substantial "black-mark" on an alien's immigration record. Only rarely should a nurse use a tourist-visa-to-Adjustment-of-Status approach.

About The Author

Christopher T. Musillo, Esq. is an immigration attorney whose practice is concentrated on business immigration matters. He is an associate with the Hammond & Associates law firm and works out of the firm's Cincinnati office. Chris has been an Associate of Hammond & Associates since September 1998, after completing his legal studies at the University of Cincinnati's College of Law. Prior to law school, Chris worked for three years for a mid-sized New York City Financial Consulting firm. He is a graduate of Villanova University, Villanova, Pennsylvania and Chaminade High School, Mineola, New York. Chris was raised in the Long Island suburban community of Oyster Bay. When not zealously representing his clients, Chris enjoys outdoor sports, listening to music, traveling and reading. Please contact Chris at or by visiting his firm's website,

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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