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Obtaining An H-1(B) Visa For A Professional Nurse

by Michael F. Hammond, Esq.

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 but the number of H-1(c) visas were limited to 500 per year and severe restrictions were placed on the category. Unless an H-1(b) visa is 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." See 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 a 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.


About The Author

Michael F. Hammond, Esq. is Principal and founder of Hammond Law Group, a law firm that handles immigration matters exclusively, with offices in Cincinnati, San Francisco, Seattle, and Manila. Michael Hammond has personally been practicing immigration law since 1989, and specializes in primarily IT and health care related corporate matters. He can be reached at mfh@hammondlawfirm.com.


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


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