Taking the Temperature of Immigration Policy for Nurses
As we enter the throes of cold and flu season, thoughts naturally turn to matters of health and so it seems fitting that HRLegalist takes a look at visa options for foreign RNs, which have been more difficult to obtain than one might imagine. According to the American Association of Colleges of Nursing, the U.S. is projected to experience a shortage of Registered Nurses (RNs) that is expected to intensify as Baby Boomers age and the need for health care grows. Compounding the problem is the fact that nursing schools across the country are struggling to expand capacity to meet the rising demand for care given the national move toward healthcare reform.
Given this staffing shortage, it may come as a surprise that healthcare employers seeking to hire foreign nurses have experienced difficulty in the past. The difficulty is that non-immigrant visas have one major drawback: there is no clear non-immigrant visa category that easily allows sponsorship of foreign nurses. The H-1B visa might naturally be the obvious choice for employers, since it is specifically available to skilled workers and designed to provide the U.S. market with much-needed skilled labor. However, under regulations governing the H-1B program, nursing positions will only qualify for H-1B status if the employer can establish that the position qualifies as a “specialty occupation,” which are defined in the regulations as those requiring at least a bachelor’s degree in the field. Thus, many nursing positions are not eligible for H-1B classification, because a bachelor’s degree is frequently not required for nursing employment.
Since 2002, the position of the U.S. Citizenship and Immigration Service (USCIS) has been that general RNs do not meet the H-1B’s specialty occupation requirements unless practicing in certain specialty RN occupations. However, USCIS has indicated that the nursing positions most likely to be H-1B eligible are Clinical Nurse Specialists, Nurse Practitioners, Certified Registered Nurse Anesthetists, Certified Nurse Midwives, and upper level nurse managers in hospital administrative positions. These positions are more likely to require at least a bachelor’s degree than general nursing positions. USCIS suggested that other nursing specialty positions would be considered for H-1B eligibility on a case-by-case basis, taking into account the total requirements for the position as well as the nurse’s qualifications. For example, for an operating room nurse, the employer would need to demonstrate that the position’s duties are specialized and complex enough to require the knowledge associated with a bachelor’s degree or higher. Since USCIS’s decisions vary depending on the case’s circumstances, it is hard to predict whether a particular nursing position will meet the specialty occupation standard.
However, it may be that the tide is turning. On February 18, 2015, USCIS issued a policy memorandum that offers new guidance on the specialty occupation standard as it relates to nurses. USCIS seems to be expanding the nursing positions that are likely to be approved for H-1B visas. In this memo, USCIS acknowledges that both the hospital and nursing industries are changing. Hospitals are showing hiring preferences for bachelor’s degree nurses in order to pursue Magnet recognition, an award that indicates nursing excellence and leadership at that facility. Perhaps consequently, more nursing candidates are pursuing bachelor’s degrees initially or returning to school to pursue them. The memo enumerates eleven specific nursing positions that may qualify as specialty occupations. Those nursing positions are:
- Addiction nurses
- Cardiovascular nurses
- Critical care nurses
- Emergency room nurses
- Genetics nurses
- Neonatology nurses
- Nephrology nurses
- Oncology nurses
- Pediatric nurses
- Peri-operative nurses
- Rehabilitation nurses
USCIS advises that the critical factor to be considered when deciding whether a particular position qualifies for H-1B classification remains whether a bachelor’s degree or higher is normally required for the position. Additionally, advanced practice RNs, such as those previously mentioned, will continue generally to be deemed specialty occupations.
The February 2015 USCIS memo presents more options than employers may have thought available. However, as discussed at length previously by HRLegalist, employers should be aware that the total number of H-1B visas issued in a fiscal year is limited or “capped” at 65,000. Due to the overwhelming demand for H-1B visas each year, applications are nearly always subject to a lottery system to determine which will be considered and “Cap” cases must be filed on April 1st to be considered for the lottery. However, we also remind our readers that qualified institutions of higher education, non-profit research organizations, and affiliates of an institution of higher education (including many health care facilities) are exempt from the annual cap.
Foreign nurses from Canada and Mexico do have another viable alternative to the H-1B visa. Under the North American Free Trade Agreement (NAFTA), registered nurses with a state/provincial license or a Nursing degree may qualify for a TN visa. The applicant must prove either Canadian or Mexican citizenship, have a “state/provincial license or Licenciatura Degree,” and have an offer of employment from a U.S. employer.
TN visas are valid for three years and may be renewed.
It remains to be seen whether the 2015 USCIS memo will actually translate into more foreign nurses acquiring H-1B visas. Due to the complexity of the regulations and unique facts pertaining to nursing education, employers should seek the advice of an experienced immigration attorney when contemplating sponsoring a foreign nurse, but don’t be discouraged: there are more options than you may have thought. In the meantime, let’s get through the winter and stay healthy!