H-1 for Nurses

H-1B NONIMMIGRANT PETITION FOR NURSES

A.    GENERAL REQUIREMENTS

    An individual is eligible for H-1B nonimmigrant classification if the beneficiary is in a specialty occupation.  A specialty occupation means an occupation that requires :
    
    •    theoretical and practical application of a body of highly specialized knowledge; and
    •    attainment of a bachelor’s or higher degree in the specific specialty or its equivalent, as a minimum requirement for entry into a specialty occupation in the US.
    
    In order to meet the requirement for a specialty occupation the following is required :

    a.    Full State licensure to practice in the occupation, if such licence is required to practice in the occupation;

    b.    Completion of a related degree for the occupation; or

    c.    Experience in the specialty equivalent to the completion of such degree, and
           Recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

    The following documents may be submitted to prove that the beneficiary has the required degree or its equivalent :

    a.    A copy of the alien’s US bachelor’s degree or higher degree in the specialty occupation;

    b.    A copy of the foreign degree determined to be equivalent to the US degree; or

    c.    Evidence that the alien’s education and experience are equivalent to the required US degree.

1.    Requirements for Registered Nurses    

    The following requirements must be met in order to be licensed as a Registered Nurse (RN):

    •    The individual must graduate from an approved nursing program and pass the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam.
    
    The minimum requirement for entry into the field of nursing as a registered nurse is a two-year associate degree in nursing (ADN.).  This means that a typical RN would not likely be eligible for H-1B classification.  Accordingly, RN positions do not generally require a bachelor’s or higher degree.

    A registered nurse will be eligible for H-1B classification if the petitioner can demonstrate that the position, and the individual alien, meet the requirements for establishing that the position is H-1B, by showing that:

    a.    A bachelor’s or higher degree (or its equivalent) is normally the minimum requirement for entry into the position;

    b.    The degree requirement is common to the industry for parallel nursing positions (i.e. employers in the same industry require their employees to hold the degree when they are employed in the same or a similar position):

    c.    The employer normally requires a degree or its equivalent for the position; or

    d.    The nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent).

2.    Advanced Practice Nurses

    Positions that require nurses who are certified Advanced Practice Registered Nurses (APRN) will generally be H-1B equivalent, due to the advanced level of education and training required for certification.

    If the APRN position requires that the employee be certified in that practice, the nurse will be required to possess an RN, at least a Bachelor of Science in Nursing (BSN), and some additional graduate level education.

    The following advanced practice occupations will generally be H-1B equivalent if the position requires, and the alien has obtained, advanced practice certification :

    •    Clinical Nurse Specialists (CSN): Acute Care, Critical Care, Gerontological, Family, Hospice and Palliative Care, Neonatal, Pediatric, Psychiatric and Mental Health-Adult, Psychiatric and Mental Health-Child, and Women’s Health.

    •    Nurse Practitioner (NP): Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women’s Health.

    •    Certified Registered Nurse Anesthetist (CRNA); and

    •    Certified Nurse-Midwife (CNM)
    
3.    Nurses in Administrative Positions

    Certain other nursing occupations, such as an upper-level “nurse manager” in a hospital administration position may be H-1B equivalent.

    Nursing Services Administrators are generally supervisory-level nurses who hold an RN certification, and a graduate degree in nursing or health administration.

4.    State Requirements

    Even though a general RN position does not qualify as H-1B, the National Council on State Boards of Nurses (NCSBN) has confirmed that the state of North Dakota is the only state that requires an individual to possess a BSN (Bachelor of Science in Nursing) in order to be licensed as an RN in that state.  This applies to individuals who enrolled in a nursing program after January 1, 1987. If a BSN is a prerequisite, the position will qualify as an H-1B position.

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H-1C CATEGORY FOR NURSES

The H-1C nonimmigrant category was created for foreign nurses who will work in medically underserved areas of the United States.

Health care facilities seeking to petition for H-1C nurses must meet certain eligibility requirements and must file LCA-type attestations.  H-1C nurses must also be eligible for participation.  The maximum period of stay in H-1C status is three years.

A.    SUBSTANTIVE REQUIREMENTS

    1.    Eligible Health Care Facilities

        To participate in the H-1C program, the health care facility must establish that it:

        •    Is located in a health professional shortage area (HPSA) as determined by the Department of Health and Human Services (HHS);

        •    Had, since 1994, at least 190 acute care beds;

        •    Had, since 1994, a Medicare population of at least 35 percent; and

        •    Had, since 1994, a Medicaid population of at least 28 percent.

    2.    Facility Attestations

        Facilities participating in the program must make attestations designed to protect the wages and working conditions of US nurses.  The attestations must be submitted to the DOL’s Employment and Training Administration (ETA).  The submission of the attestation is required as a condition precedent to petitioning the USCIS for H-1C nurses.  The facility must attest that:

        •    It is eligible to participate in the program;

        •    Employment of the nurse will not adversely affect wages and working conditions of similarly-employed nurses;

        •    The nurse will be paid the same rate as other registered nurses similarly employed at the facility;

        •    The facility has and is taking timely and significant steps to recruit and retain US Citizen and permanent resident nurses;

        •    There is no strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a nurse within the 90 days before and after the date of filing of an H-1C petition, and the employment of the H-1C nurse is not intended or designed to influence union activity;

        •    Notice of the filing has been provided to the bargaining representative for nurses at the facility, or has been posted in conspicuous locations (if no bargaining representative exists), and every registered nurse at the facility has been provided with a copy of the completed attestation form within 30 days of filing;

        •    H-1C nurses at the facility will never number more than one-third of the total registered nursing staff; and

        •    the H-1C employment will not be performed at a facility other than the petitioning facility.