A Resolution For Foreign Nurses
As we are in the midst of a severe nursing shortage, the INS is doing its part to clarify the rules for foreign nurses who want to work in the United States. During the last two months the INS has issued two memorandums pertaining to foreign nurses.
In the first memorandum, dated November 27, 2002, the INS provides guidance on the adjudication of H-1b petitions filed on behalf of foreign nurses. It should be made clear that the INS did not create a new law nor change the existing law. Rather, the INS simply clarified that typical registered nurses generally do not meet the requirements for H-1b status but certain specialized RN positions may be eligible for H-1b status. In the memorandum, the INS provided several important explanations. First, positions that require nurses who are certified advanced practice registered nurses (APRN) will generally be H-1b eligible due to the advanced level of education and training required for certification. These positions include Clinical Nurse Specialists, Nurse Practitioners, Certified Registered Nurse Anesthetist and Certified Nurse-Midwife. Second, certain nursing positions such as an upper-level "nurse manager" in a hospital administration position may be H-1b eligible since administrative positions in healthcare facilities generally require at least a bachelor's degree. Third, a nursing position in a state that requires at least a bachelor's degree for state licensure is H-1b eligible. 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. Fourth, nursing specialty positions that require a higher degree of knowledge and skill than a typical RN position may be H-1b 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. Fifth, any other nursing position may be eligible for H-1b status if the petitioner can meet the existing requirements by showing: (1) a bachelor's degree or higher is normally the minimum requirement for entry into the position; (2) the degree requirement is common to the industry for parallel nursing positions; (3) the employer normally requires a bachelor's degree or its equivalent for the position; and (4) the nature of the position's duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher degree.
In the second memorandum, dated December 20, 2002, the INS provides guidance on the adjudication of I-140 petitions for nurses meet the eligibility requirements for state licensure but are unable to obtain the license because they can't obtain a social security number. The memorandum announces that employers can receive an I-140 approval on behalf of a nurse who has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) in lieu of either having passed the Commission on Graduates of Foreign Schools (CGFNS) examination or being in possession of a full and restricted (permanent) license to practice nursing in the state of intended employment. The INS is accepting the NCLEX-RN as an alternative based upon the Department of Labor's advise to the INS on October 2, 2002 that the INS can approve such petitions because the Department of Labor intends to amend its regulations at 20 C.F.R. 656.22(c)(2) to allow the certification based upon a passing score on the NCLEX-RN.
The announcement from the INS is a much-welcomed resolution to the conflicting rules on the part of the different agencies that created obstacles for some foreign nurses who want to work in the U.S. Practically speaking, the requirement of either a passing score on the CGFNS or a full and unrestricted state license was not feasible. First, the CGFNS exam is given only three times a year. Therefore, many employers have had to wait several months for a foreign nurse to take the CGFNS before they could file the I-140 petition. Second, many foreign nurses demonstrated competency to practice in the U.S. but were unable to obtain a state license without having a social security number.
The requirement of a social security number placed many foreign nurses in a catch-22 situation between the INS, the Social Security Administration and the state board of nursing. Historically, the INS was refusing to issue an I-140 approval unless the foreign nurse had a full and unrestricted state license. Most state boards of nursing refuse to issue a state license until the nurse obtains a social security card. Likewise, the Social Security Administration will not issue a social security number unless the nurse has authorization from the INS to work in the United States.
Now a foreign nurse will no longer be caught in the catch-22 situation. Instead, she can get the I-140 approval with proof that she has passed the NCLEX-RN and is eligible for a state license. The Immigration and Naturalization Service and the Department of Labor ought to be applauded for their efforts in clarifying the rules for foreign nurses and removing obstacles created by the social security administration.
Sherry L. Neal, Esq. is an immigration attorney with Hammond Law Group, LLC. She represents corporations, health care institutions and foreign nationals with business immigration matters. She can be reached at email@example.com. Visit the firm website at www.hammondlawfirm.com.
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