INS Issues Guidance on Adjudication of
H-1B Petitions for Nurses

Overview

On November 27, 2002, the Executive Associate Commissioner in the Office of Field Operations issued a Memorandum providing guidance to field offices in the adjudication of H-1B petitions filed on behalf of registered nurses. Generally, regular registered nurses (RNs) are not eligible for H-1B status. However, aliens working in certain specialized RN occupations are more likely to be eligible for H-1B status.

Specialty Occupation Requirement

An alien is eligible for H-1B status if he or she is in a specialty occupation. A specialty occupation is generally one that requires a bachelor's or higher degree or its equivalent. If a state requires a license for certain occupations, attainment of the full state licensure would staisfy the specialty occupation requirement.

Generally, RN positions do not require a bachelor's or higher degree, which makes it difficult for regular RNs to qualify for H-1B status. However, the Memo suggests that an RN may be eligible for H-1B if the petitioning employer shows that:

(1) a bachelor's or higher degree (or its equivalent) is generally the minimum requirement for the position;
(2) the degree requirement is common to the industry for parallel nursing positions;
(3) the employer usually requires a degree or its equivalent for the position; or
(4) the nature of the duties intrinsic in the position is so specialized and complex that the knowledge required to perform such duties is usually associated with the attainment of a bachelor's or higher degree (or its equivalent)

Advanced Practice Nurses

Certain specialized nursing positions are more likely to require a bachelor's or higher degree, which makes nurses in these categories more H-1B eligible. Generally, nursing positions that require certified advanced practice registered nurses (APRN) will be H-1B equivalent. Some positions that fall within this category are clinical nurse specialist, nurse practitioner, certified registered nurse anesthetist and the certified nurse-midwife. All of these positions normally require that the nurse be certified in that practice, in possession of an RN, at least a Bachelor of Science in Nursing (BSN) and additional graduate level education.

Nurses in Administrative Positions

In addition to APRN nurses, certain nurses in administrative positions, such as an upper-level “nurse manager” in a hospital, may qualify for H-1B status since these positions normally require a bachelor's degree. Nursing Services Administrators generally hold an RN as well as a graduate degree in nursing or health administration.

State Requirements

If a BSN is required by a state to practice in the field, the position may be H-1B equivalent. Accordingly, a petition for an RN position in a state that has such a requirement would most likely qualify for H-1B status. To date, North Dakota is the only state that requires a BSN in order to be licensed as an RN in the state.

Nursing Specialties

In addition to the above, certain other nursing specialties that require a higher degree of knowledge and skill than a typical RN position may be H-1B equivalent. Such specialties include critical care and peri-operative (operating room).

Registered nurses who possess additional clinical experience but are not advanced practice nurses may also take certification examinations. Examples include school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. Nurses in these specialty areas may be able to qualify for H-1B status by demonstrating that the position qualifies as a specialty occupation and the nurse is qualified for the position.

In conclusion, each H-1B petition is evaluated on a case-by-case basis. The INS, in making its decision, must consider the totality of requirements for the position as well as the individual’s qualifications.
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Teressa Accurso Dickman
Attorney At Law

www.ImmigratingToAmerica.com
teressa@ImmigratingToAmerica.com
(954) 522-1088

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