USCIS has just published
and released an updated H-1B Memorandum which purports to provide guidance to
USCIS officers in their adjudication of H-1B petitions for Registered
Nurses. This Memorandum updates the
long-standing 2002
Johnny Williams USCIS Memorandum on the same subject. The new Memorandum does not break new ground. It is not expected that the Memorandum will
result in a significant increase in approved H-1B petitions, although its Background
section helpfully reminds USCIS officers that “there are some situations,
however, where the petitioner may be able to show that a nursing position
qualifies as a specialty occupation”.
USCIS officers presently
deny nearly all H-1B petitions for Registered Nurses, regardless of the
specific facts of the petition. The fundamental
problem for RNs seeking H-1B status is that few US Registered Nurse positions
in the US require a Bachelor’s degree in Nursing for entry into the
position. In order to have an H-1B
approved it is not enough that the applicant holds a Bachelors’ degree; the
position itself must require a Bachelor’s degree. The Memorandum makes this clear: “Registered
nurses generally do not qualify for H-1B classification” (Page 2).
Even nurses who
work in units where 100% of the nurse workforce holds Bachelors of Science in Nursing
(BSN) have seen H-1B denials. These
denial opinions dismiss the employer’s facts, and simply cite to the Occupational Outlook Handbook, which
generally says that nursing positions do not require Bachelor’s degrees.
As the Williams Memorandum
explained, the new Memorandum confirms, there are exceptions to this general
rule. For instance, the new Memorandum favorably
recognizes that hospitals with magnet status, “indicates that the nursing
workforce within an institution has attained a number of high standards
relating to quality and standards of nursing practice” (Page 3). The Memorandum then buries in footnote 9 a very
important fact: “For example, as of January 1, 2013, 100% of nurse managers of
individual units/wards/clinics must have at least a baccalaureate degree in
nursing upon submission of the Magnet application.” This Memorandum would have been improved if
the author had plainly stated that Nurse Manager positons at Magnet hospitals qualify
for H-1B visas. Nonetheless, this
acknowledgement should be helpful in future H-1B petitions for Magnet Hospital
Nurse Managers.
Beyond this section
on Magnet hospitals the new Memorandum offers little guidance for USCIS
officers. In several places the Memorandum
tells officers to analyze cases on the facts of the petition and on a case by
case basis, which is apparent.
The new Memorandum
mirrors the Williams Memorandum in that it reminds officers that Advance Practice
Nursing position are generally specialty occupations and approvable for H-1B
visas. It also helpfully recognizes that
some specialties, such as critical care and peri-operative (operating room) may
qualify for the H-1B.
While USCIS HQ
missed an opportunity to be clearer about which RN positions were approvable
for H-1B visas, the Memorandum shows that the USCIS is aware of the issue.
