Eaton Peabody

INS publishes guidance on H-1B petitions for nurses - 12.27.02

On November 27, 2002, the INS issued a Policy and Procedure Memorandum containing guidance on the adjudication of H-1B petitions filed on behalf of nurses. See http://www.ins.usdoj.gov/graphics/lawsregs/handbook/NurseMemo_112702.pdf. The INS memo reiterates its position that typical RN positions do not generally qualify for H-1B status because a bachelors degree is not a minimum requirement for entry into the field.

1. Qualifying as a "specialty occupation" under the H-1B program Many employers and aliens mistakenly (though understandably) believe that because nursing is a profession, registered nurses qualify for temporary H-1B status as professionals. However, to qualify as a "specialty occupation" for purposes of the H-1B program generally, the position in question must meet one of the following regulatory criteria:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
See 8 C.F.R. 214 2(h)(4)(i)(B). If an employer can establish that it uniformly requires a bachelors degree for RN positions, it may succeed in qualifying an RN position as H-1B caliber although this would be difficult to do.

2. General educational requirement for RNs In finding that RNs typically would not qualify for H-1B status under the first criterion, the INS relies on the fact that the Occupational Outlook Handbook states that the minimum educational requirement for entry into the field of nursing as an RN is a two-year associate degree or A.D.N. See Occupational Outlook Handbook at: http://www.bls.gov/oco/ocos083.htm. The following excerpt sets forth the educational requirements upon which the INS relies:

Training, Other Qualifications, and Advancement
In all States and the District of Columbia, students must graduate from an approved nursing program and pass a national licensing examination to obtain a nursing license. Nurses may be licensed in more than one State, either by examination, by endorsement of a license issued by another State, or through a multi-State licensing agreement. All States require periodic license renewal, which may involve continuing education.

There are three major educational paths to registered nursing: associate degree in nursing (A.D.N.), bachelor of science degree in nursing (B.S.N.), and diploma. A.D.N. programs, offered by community and junior colleges, take about 2 to 3 years. About half of the 1,700 RN programs in 2000 were at the A.D.N. level. B.S.N. programs, offered by colleges and universities, take 4 or 5 years. More than one-third of all programs in 2000 offered degrees at the bachelor's level. Diploma programs, administered in hospitals, last 2 to 3 years. Only a small number of programs offer diploma-level degrees. Generally, licensed graduates of any of the three program types qualify for entry-level positions as staff nurses.

See Id. Accordingly, in the INSs view, H-1B status is reserved primarily for nursing positions requiring education beyond a traditional nursing program.

3. Other nursing positions The INS memo makes clear that advanced practice nurses ("APRNs") such as clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), certified nurse-midwife (CNM), or certified nurse practitioner (APRN-certified) and those in administrative positions may qualify for H-1B status where those positions typically require a bachelors degree.

4 Alternatives to H-1B Although H-1B status may not be available for regular RNs, alternatives exist for foreign nurses and their prospective employers. For example, RNs appear on Schedule D of NAFTA. Accordingly, Canadian citizens who qualify may enter in this status for successive one-year periods. TN status is probably the best route for Maine employers to address temporary staffing shortages as qualifying for TN status is relatively fast and simple. While the H-1C program is currently available to the few institutions which qualify (currently 14 hospitals), it is very limited, somewhat complex, and due to sunset in 2004 Finally, at this point in time, for purposes of acquiring permanent residence, professional nurses benefit from favorable Department of Labor regulations and may qualify for EB-3 status as professional or skilled workers.

Please contact Matthew S. Raynes, mraynes@eatonpeabody.com, for further information.

This paper is provided as general information, and is not a substitute for legal or other professional advice.