ANALYSIS OF THE NEW USCIS MEMO ON H-1B FOR RNs

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 positions 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.

UPDATE: The USCIS appears to have broken the link to its Memo.  The Memo can be found on our DocStoc site.