[co-author: Ronda Leduc]
On July 11, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum to provide updated guidance on the adjudication of H-1B petitions for nursing positions. The memorandum was issued in response to changes in the nursing industry and provides examples of potentially approvable H-1B positions for nurses.
Background
To qualify for H-1B status, an offered position must be in a specialty occupation, defined as one that requires specialized knowledge and attainment of a bachelor's degree or equivalent in a specific field. To qualify as a specialty occupation, the position must meet one of the following criteria:
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A bachelor's degree or higher in a specific specialty is normally the minimum requirement for entry into the particular position.
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The degree requirement is common to the industry in parallel positions among similar organization or, in the alternative, the particular position is so complex or unique that it can be performed only by an individual with a degree.
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The employer normally requires a degree or its equivalent for the position.
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The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.
Twelve years ago, USCIS determined that nurses, including Registered Nurse (RN) positions, were generally not recognized as specialty occupations since a bachelor's degree or equivalent is not always required to enter into that position.
Updated Guidance
In its updated memorandum, USCIS acknowledges that RNs are increasingly pursuing bachelor's degrees, and that there are areas of nursing where the duties are so specialized and complex that the knowledge required to perform those duties is usually associated with a baccalaureate or higher degree.
Specifically, USCIS highlights the following nurse positions as potentially qualifying for H-1B status:
Advanced Practice Registered Nurses (APRNs)
USCIS recognized that positions requiring nurses who are APRNs will generally qualify as specialty occupations due to the advanced level of education and training required for that position. The memorandum lists the following APRN occupations that may qualify for H-1B status:
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Certified Nurse-Midwife
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Certified Clinical Nurse Specialist
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Certified Nurse Practitioner
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Certified Registered Nurse Anesthetist
Specialized Nurse Positions
In addition to the APRNs noted previously, USCIS acknowledges that nurses in certain specialized areas may also qualify for H-1B status. The following specialty RN positions are specifically cited in the memorandum as potentially qualifying as specialty positions:
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Addiction nurses
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Cardiovascular nurses
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Critical care nurses
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Emergency room nurses
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Genetics nurses
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Neonatology nurses
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Nephrology nurses
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Oncology nurses
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Pediatric nurses
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Peri-Operative nurses
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Rehabilitation nurses
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Others in which they do not work directly with patients, but must still have an active registered nurse license
In the memorandum, USCIS also reiterates its position that it will consider H-1B status to be appropriate for any RN if the state where the nurse will work requires a bachelor's degree.
When considering a nursing position for H-1B status, USCIS indicates it will take the sum of the following factors into consideration:
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A detailed description of the duties to be performed within the petitioner's business operations
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Advanced certification requirements
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The facility's American Nurses Credentialing Center (ANCC) Magnet Recognized status
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Clinical experience requirements
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Training in the specialty occupation
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Wage rate relative to others within the occupation
Conclusion
Although this memorandum does not expand H-1B status to all nursing positions, it does provide additional guidance for many nursing occupations and specialties that do require a bachelor's degree or higher as a minimum requirement for the position. This memorandum provides helpful guidance for the health care industry and USCIS officers adjudicating H-1B petitions filed for nursing positions.