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On November 27, 2002, a memorandum was issued by the INS (now called USCIS) to its adjudication officers providing guidance on adjudication of H-1B petitions for Registered Nurses (RNs).
Under current law, an H-1B petition may only be approved if the offered position is in a "specialty occupation," which is defined in the Immigration and Nationality Act as one that requires "theoretical and practical application of a body of highly specialized knowledge" AND "attainment of a bachelor's, or higher, degree in the specific specialty or its equivalent." Further, if a particular state requires a license for one to practice his/her occupation, the license is likewise required in order to obtain an H-1B approval.
Those requirements have long been a problem in the nursing profession, as the minimum requirement to be licensed as a Registered Nurse (RN) is generally a two-year degree in nursing (A.D.N.), rather than a four-year bachelor's degree. Many RNs, therefore, would not qualify for the H-1B classification from the USCIS.
However, it is well established by the USCIS that a petitioning employer may demonstrate that a particular RN position could qualify for an H-1B by showing the following:
1. That a bachelor's or higher degree (or its equivalent) normally is the minimum requirement for entry into that particular position;
2. That the degree requirement is common in the industry to parallel nursing positions;
3. That the employer normally requires a degree or its equivalent for the position; or
4. That the nature of the position's duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's, or higher, degree (or its equivalent).
In determining how the educational requirement translates to comparable experience, USCIS uses the formula that three years of specialized training and/or work experience is equal to one year of college-level training.
The latest memorandum confirms the above well-established requirements, and further provides much-needed clarification on which nurses may be eligible for H-1B classification at a time when more and more hospitals and health care facilities are searching for foreign nationals to fill the desperate nursing shortage in the U.S.
1. The first class of nurses who generally will qualify for H-1B approval comprises those who are certified advanced practice registered nurses (APRNs). Typically, APRN certification is required for: clinical nurse specialists (CNSs), certified registered nurse anesthetist (CRNAs), , certified nurse-midwives (CNMs), or certified nurse practitioners (NPs). If an APRN position requires the employee to be certified in that practice, the nurse must be an RN, possess at least a Bachelor of Science in Nursing, and some additional, graduate level education.
2. The second class of nurses who may qualify for H-1B approval comprises those in administrative positions requiring graduate degrees in fields such as nursing or health administration.
3. The final class of nurses who may qualify for H-1B approval includes those who have a nursing specialty such as critical care and peri-operative nurses, or who have passed examinations based on clinical experience in school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics, but who are not APRNs. In these cases, the petitioner must show that the nature of the particular position is so specialized and complex that one would normally expect the person performing the duties to have attained a bachelor's or higher degree, or its equivalent.
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