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Immigration Law Facts and Issues, featuring a series of immigration law articles spanning nine years, by Richard Hanus, Chicago immigration attorney and columnist.
CIS Provides Guidance on H-1B Temporary Visas for Registered Nurses
January 13, 2005
The H-1B temporary work visa, when available, can be approved by U.S. immigration officials in a matter of days, and at a U.S. consular post abroad in a matter of a week or two, depending on the visa application volume handled by the post in question. So, why don't more U.S. healthcare facilities take advantage of the H-1B visa option to fill registered nursing positions? The overriding reason: most basic RN positions are not an appropriate basis for H-1B visa petitions, although there do exist quite a few more sophisticated RN positions that may indeed facilitate issuance of an H-1B visa. In a recent informational bulletin, U.S. Citizenship and Immigration Services addresses the question of when a registered nurse might be able to receive a temporary H-1B work visa.
H-1B temporary work visas are generally available for professional workers with a bachelor's degree or higher (or equivalent) who are seeking to fill positions where such a degree is typically required. That means, by way of an H-1B visa petition a company might be able to recruit an electrical engineer to fill an engineer position, but not a technician position – since the latter position generally does not require the candidate to possess a university education. Employers can petition an H-1B employee for an initial period of up to 3 years, with the option of a 3 year extension generally available.
The problem with trying to fill RN positions in the U.S. with a foreign nurse on an H-1B visa, however, is that most RN positions in the U.S. do not require candidates to possess a bachelor's degree, although most foreign nurses have the degree. So, despite the RN's qualifications, H-1B petitions for RN's generally get denied since most garden variety RN positions, such as in the state of Illinois, generally do not require candidates to have completed a bachelor's program. Instead, in most states – like in Illinois, registered nursing licenses are available to candidates who have completed only a two year, associates degree program and those candidates will be deemed qualified to fill most RN position openings. (Unlike the state of Illinois, RN positions in North Dakota, for example, will generally serve as a proper basis of an H-1B visa petition, since North Dakota requires all of its RN's to possess a bachelor's degree in order to receive an RN license and practice nursing.)
However, CIS will recognize some RN positions as complex enough, such that the requirement of a bachelor's degree or higher for the position is justified, and thus an appropriate vehicle for the issuance of an H-1B visa to the foreign nurse. Specialized nursing positions where the attainment of a bachelor's degree or some advanced education/experience might typically be required include: school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, pediatrics, clinical nurse specialist, certified nurse anesthetist, upper level nurse management/administrative.
In the meantime, it is important to note that H-1B visas generally become unavailable within a matter of a few months after the start of the fiscal year (the fiscal year for 2005 begins October 1, 2004) due to the limited annual allotment of H-1B visas and the extraordinarily heavy demand. Thus, as has always been an alternative, a petition to facilitate issuance of an immigrant visa for foreign R.N.'s continues to be an option, although visa issuance can take anywhere from 6 to 18 months. Additionally, as is the case in the H-1B visa petition context, CGFNS and ICHP Visa Screen certification requirements will also impact RN eligibility and visa processing times.
The complete text of the bulletin can be viewed at http://www.bcis.com/images/USCIS-nursing-guide.pdf.
PUBLISHED January 13, 2005 - "IMMIGRATION LAW FORUM"
Copyright © 2005-2008, By Law Offices of Richard Hanus, Chicago, Illinois
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