As readers of the Silicon Immigration Lawyer Blog are no doubt aware, USCIS received the maximum 65,000 H-1B petitions to meet the 2015 Fiscal Year H-1B cap in April 2014. Since April, USCIS officers have been adjudicating the 65,000 petitions, and many clients have started receiving their H-1B approval notices for their cases.
In order for USCIS to approve the H-1B petition, the petition must demonstrate that the H-1B job position qualifies as a specialty occupation, meaning that the position normally requires a bachelor's degree in order to perform the job duties, and that the H-1B worker possesses at least a bachelor's degree or its equivalent and is therefore qualified to perform the job duties.
In many cases, it is quite simple to prove that the H-1B position is a speciality occupation. For instance, it is not very difficult to explain that a lawyer or an accountant requires a bachelor's degree. However, there are other positions, such as multiple types of IT-related jobs, which USCIS may question as to whether they qualify as speciality occupations.
There is one special group of positions that USCIS often questions, and that group is nurses. To help prospective H-1B employers better understand how USCIS views nursing positions, USCIS recently published a Policy Memo that explains many of the nursing-related issues that USCIS frequently faces when adjudicating H-1B petitions. We have provided below a brief outline of the main points of the memo for our readers.
Issues Regarding Registered Nurses (RNs)
USCIS states in its memo that most RN positions will not qualify for an H-1B approval because the majority of these positions are not speciality occupations, since they do not require a bachelor's degree in nursing or a related field. However, USCIS does concede that there may be exceptions to this general guidance, such as for certain Advanced Practice Registered Nurses (APRNs). APRNs are different from RNs because APRNs are required to utilize different and advanced skills and knowledge during the course of their diagnosis, planning, assessment, and treatment duties.
State Licensing Requirements
In its memo, USCIS explains that the nursing occupation is regulated by the states. In all states, in order to work as an RN the application must possess a nursing license. To obtain the license, the RN must graduate from an approved nursing school and pass the National Council Licensure Examination. However, at this time no state requires a bachelor's degree as an additional prerequisite to obtaining a nursing license.
How to Prove Speciality Occupation
Although USCIS points out that many nursing positions will not qualify for an H-1B approval, the agency generously provides tips on how to establish that a specific position may still qualify as a speciality occupation.
USCIS states that the petitioning company bears the burden of establishing that the position is a speciality occupation and may submit multiple types of documents to prove this fact, including but not limited to materials regarding the nature of the company's business, the accepted practices in the company's industry, certification requirements, clinical experience requirements, and training requirements.
If you are a foreign nurse and would like to discuss your possible immigration options, feel free to contact our office at 650-293-0270. We look forward to speaking with you!
Additional Blog Posts
ACLU Sues U.S. Government Over Voluntary Departure, Silicon Valley Immigration Lawyer Blog, June 7, 2013
Let's Put USCIS Forms in the Post Office, Silicon Valley Immigration Lawyer Blog, March 1, 2012