Evolving nursing industry qualifies more RNs for H1B visas

The standards for hiring nurses have considerably been innovated in varied ways to attain quality care for patients and nursing excellence. Will these changes favorably affect the way the visa petitions are adjudicated for registered nurses (RNs)?

Maricel and Fe are both registered nurses. After graduating, both made plans to immigrate to the US. After passing their licensure exams they also took the NCLEX tests to qualify them to work in the US.

In 2011, Maricel was petitioned by a health-care facility in New York. Maricel was advised to wait for her priority date to become current before she could be issued a visa. She has been waiting now for almost three years and still she has not been processed for her visa. In the meantime, Fe did not have to wait long before starting work in the States. She was petitioned by a US hospital for a temporary H1B working visa and was able to depart in 2012.  Maricel is wondering whether she can just file for the H1B visa like Fe. Unfortunately, her petitioner informed her that the job offer is for a regular staff nurse and she would not qualify for the H1B visa.

Recently, a new US Citizenship and Immigration Services Policy Memorandum was released regarding the adjudication of H1B visa for registered nurses. Will this policy memorandum mean that more registered nurses may not apply for the temporary working visa? Will Maricel now qualify for a temporary working visa as a registered nurse?

Associate vs bachelors degree

The Philippines requires its nurses to have a bachelor’s degree in nursing. The US requires only an associate degree.

Understanding this distinction is key in determining whether an RN is qualified for the temporary H1B visa.

The H1B visa is a professional working visa issued to foreign nationals who will work in specialty occupations requiring bachelor’s degree as a minimum requirement to perform the job. RNs generally do not qualify for H1B classification. This is because most RN positions do not normally require a US bachelor’s or higher degree in nursing as the minimum for entry into these particular positions. But there are RNs that may still qualify for H1B if they meet certain requirements.

Qualifying RNs for H1B visas

A decade ago, the US Citizenship and Immigration Services issued its guidance on adjudicating H1B visas for registered nurses. Those qualified are those with advance degrees and training often referred to as the advanced practice registered nurses (APRN). These APRN uses expanded knowledge and skills needed in providing direct care to patients. A few examples of the APRNs are the certified nurse-midwife, clinical nurse specialist, nurse practitioners and the registered nurse anesthetist.

In a policy memorandum

“Adjudication of H1B Petitions for Nursing Occupations” released by the US Citizenship and Immigration Services in July, several other factors were identified as possible ways to determine whether the nursing position qualifies for the H1B visa. It is no longer the case that registered nurses are simply perceived as  “staff nurses” that do not require bachelor’s degree. There is now an expansion of the possible qualified RNs other than those usually qualified as APRNs.

At present there is a recognition that the nursing industry is evolving. More hospitals in the United States are working toward nursing excellence by showing that they hire only nurses who attained bachelor’s degrees.

While all states require only an associate degree for registered nurses, there is an increasing number of US health organizations that maintain certain standards by hiring nurses with bachelor’s degrees only.

Hence, in assessing whether an RN is qualified for an H1B visa, each petitioning employer must also be examined as to nature of its business and its “industry practice.” If the industry practice is hire nurses with bachelor’s degrees only then the position may qualify as a specialty occupation for an H1B visa.

Other than examining the petitioner’s industry practice, other factors to take into account are the detailed description of duties, the advanced certification requirements, clinical experience, training and the wages that are offered. All factors must be taken in the aggregate in assessing whether the RN position is a specialty occupation qualifying the registered nurse for the H1B visa.

As illustrated in the case of Maricel and Fe, if the position offered by the US employer will not qualify as an H1B specialty occupation, there is always the option of filing for the immigrant visa petition under the employment-based third preference category.

The latter may take several years before it is actually processed for the visa because of the retrogression but it is more permanent in nature. The advantage of qualifying for the H1B is that the processing time is quicker and that immediate family members may join the H1B visa holder in the United States.

While the policy memorandum brings new hopes for possible H1B eligible registered nurses, it must be noted that there are only 65,000 H1B visas available each fiscal year. For the 2014 fiscal year, the numerical limit has been met and new H1B visa petitions may only be accepted for filing on April 1, 2015. Yet, it is never too early to start locating for possible US employers hiring H1B eligible registered nurses.

(Atty. Lourdes S. Tancinco may be reached at [email protected], www.tancinco.com, facebook/tancincolaw, or at (02) 721-1963.)