USCIS Issues Policy Memorandum Regarding H-1B Petitions for Nursing Occupations

by Buchanan Ingersoll & Rooney PC
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As a general matter, most registered nurse (RN) positions do not qualify as H-1B specialty occupation positions because they do not normally require a U.S. bachelor’s or higher degree in nursing or its equivalent as the minimum. However, there are situations that would allow a nursing position to qualify as a specialty occupation. For example, certain advanced practice registered nurse (APRN) positions that normally require a U.S. bachelor’s or higher degree in a specific specialty.   

In November 2002, Johnny N. Williams, Executive Associate Commissioner, (legacy Immigration and Naturalization Service - INS), Office of Field Operations, issued a memorandum concerning adjudication of H-1B petitions for nursing occupations, i.e., Guidance on Adjudication of H-1B Petitions filed on Behalf of Nurses, HQISD 70/6.2.8-P (November 27, 2002). As this guidance was issued approximately twelve years ago and the nursing industry has changed, on July 11, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing updated guidance on the subject.

The updated 2014 memorandum notes that the private sector is increasingly showing a preference for more highly educated nurses, including nurses that have obtained a master’s degrees, and that there are multiple types of nursing positions entailing different duties. The memorandum suggests that depending on the facts of the case, some of the RN positions may qualify as specialty occupations due to the complexity of the duties entailed. 

The memorandum also reaffirmed the principle that positions that require nurses who are certified APRNs will generally be specialty occupations. However, having a degree is not, by itself, sufficient for the position to qualify for H-1B classification. A critical factor remains whether a bachelor’s or higher degree in a specific specialty or its equivalent is normally required for the position.  The memorandum provides a non-exhaustive list of APRN occupations that may satisfy the requirements for a specialty occupation, including but not limited to: Certified Nurse-Midwife (CNM), Certified Clinical Nurse Specialist (CNS), Certified Nurse Practitioner (CNP), and Certified Registered Nurse Anesthetist (CRNA).

Further, the memorandum indicates that if a state requires at least a bachelor’s degree in nursing to obtain a nursing license, an RN position in that state would generally be considered a specialty occupation. However, at this time, no state requires a bachelor’s degree in nursing for licensure.

The memorandum concludes by discussing the appropriate standard of proof for H-1B petitions that adjudicating officers must follow. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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