More nurses will qualify for H-1B under new USCIS Policy

Under new guidance released by USCIS on the H-1B specialty occupation program, it is now easier for foreign nurses to be qualified for the H-1B visa. The key issue is whether the position offered to the foreign nurse qualifies as an H-1B "specialty occupation".

The H-1B Specialty Occupation
The H-1B visa program allows a U.S. employer to hire foreign workers in a specialty occupation for a temporary period of time.  To qualify as a specialty occupation, the petitioner must establish that the position offered normally requires a bachelor's degree as a minimum requirement for entry into the profession, or the position is so complex or unique that it can be performed only by an individual with a degree.  Traditionally, most registered nurse (RN) positions do not qualify as a specialty occupation because, in the United States a bachelor's degree is not required to work as a nurse.  In the U.S., one may become an RN through three education paths: a bachelor’s of science degree in nursing (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program.

Changes in USCIS Position
Because some nursing jobs do not require a bachelor's degree, USCIS has taken the position that nursing jobs do not qualify as specialty occupations. Consequently, H-1B petitions filed on behalf of "regular" RN jobs are usually not approved. The former INS Executive Associate Commissioner Johnny N. Williams issued a policy memorandum on November 27, 2002, confirming this position of the agency.  However, on July 11, 2014, the USCIS issued an updated policy memorandum on this particular issue, stating that the agency will adopt new standards in adjudicating H-1B petitions filed for nursing positions.

Specifically, the agency will consider evidence regarding (1) The nature of the petitioner’s business; (2) Industry practices; (3) Detailed description of the duties to be performed within the petitioner’s business
operations; (4)  Advanced certification requirements; (5)  ANCC Magnet Recognized status; (6)  Clinical experience requirements; (7) Training in the specialty requirements; and (8) Wage rate relative to others within the occupation.  The adjudicators will make a decision based on a totality of circumstances of the case.

The change stems from the agency's observation that the nursing profession has undergone many changes over the years.  The profession has become more complex and specialized, and many nursing jobs require a bachelor's degree to quality nowadays. There are also master's degree nursing programs offered by colleges. A bachelor's degree is also required for some nurse managers positions. For a medical organization to achieve "magnet" status designation, the educational background of its nursing workforce is also a critical factor.  There are also specialty nursing jobs which require at least a bachelor's or higher qualification. For example, certain advanced practice registered nurse (APRN) positions require a bachelor’s or higher degree in a specific specialty. Other occupations cited by USCIS that may satisfy the requirements for a specialty occupation include: Certified Nurse-Midwife (CNM); Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

Conclusion: The Policy has Changed but not the Law
The new policy will allow more foreign nurses to quality for the H-1B visa going forward.  However, it is important to note that the new policy memo represents only changes in the agency's interpretation of the legal standard. But the law and the regulation regarding the H-1B visa program remains the same.  Nevertheless, this is still good news for foreigners who aspire to work in the U.S. as nurses.