In this section, non-immigrant visa and permanent residency options for nurses will be discussed. This includes:

I. Employment Immigration Options for Nurses – Job Offer Needed

In this section, non-immigrant visa and permanent residency options for nurses will be discussed. This includes: (1) H-1B visas for professional nurses; (2) H-1C visas for nurses working in Health Professional Shortage Areas (“HSPAs”); (3) H-2B visas for nurses engaged in temporary employment; (4) L-1 visas for nurses that work in large transnational health care facilities; (5) H1B1 visas for Singaporean and Chilean nurses; (6) TN-1 classifications for Canadian and Mexican nurses; (7) Legal permanent residency options; and (8) Employment-Based preferences (including National Interest Waivers).

1. H-1B and Nurses.

Foreign nurses have a much more difficult time acquiring H-1B visas than physicians, and it is recommended that other options be explored. This is mainly because the nursing profession traditionally does not require a 4-year university degree (most only require a 2-year associate degree), nor is the requirement common in the health care industry. Therefore, there are only three instances where a nurse can realistically acquire a H-1B: (1) the state the nurse works in requires a degree as part of its licensing requirement; (2) the hospital or other petition facility uniformly requires a degree; or (3) the nurse will be used in a nursing specialty that is particularly complex and is ordinarily associated with a degree.

[1]In particular, the government has cited the following nursing specialties as potential H-1B candidates because they require a bachelor’s or advanced degree:

· Clinical Nurse Specialists (CNS) – including acute care, adult, critical care, gerontological, family, hospice and palliative care, neonatal, pediatric, psychiatric and mental health-adult, psychiatric and mental health-child, and women’s health;

· Nurse Practitioner (NP) – including acute care, adult, family, gerontological, pediatric, psychiatric and mental health, neonatal, and women’s health;

· Certified Registered Nurse Anaesthetist (CRNA); and

· Certified Nurse Midwife (CNM). Certain administrative nursing positions are similarly recognized as specialty occupations, such as upper level nurse managers with bachelor’s degrees. Finally, the nurse must pass the foreign nurses exam (NCLEX-RN) and state licensure to obtain H-1B status. If the nurse fits into one of the above three categories, he or she may qualify for an H-1B.

2. H-1C – Registered Nurses onlyThe Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA) created the H-1C classification to allow foreign nurses to come to the U.S. and work in areas currently short of registered nurses (Health Professional Shortage Areas, or “HPSAs”).

[2]For a nurse to qualify for H-1C classification, he or she must show that (1) the position involves nursing practice, (2) the position requires licensure or other authorization to practice as a State Board of Nursing in the state of intended employment, and (3) the individual is or will be authorized by a State Board of Nursing to engage in nursing at a health care facility.

[3]The petitioning hospital must prove three additional requirements in documenting the qualifications of the beneficiary nurse: (1) Proof of education or foreign licensing; (2) Proof that the nurse either passed the Commission on Graduates of Foreign Nursing Schools’ (“CFGNS”) exam, or that the nurse has a full and unrestricted license under State law to practice professional nursing in the state of intended employment; (3) Evidence that the nurse is fully qualified and eligible to practice as a registered nurse immediately upon admission to the U.S. under the laws of the state where the nurse is to be employed. Finally, the petitioning hospital must attest that: (1) it qualifies as a facility; (2) employment of H-1C nurses will not adversely affect the wages and working conditions of similarly employed nurses; (3) the facility will pay the nurse the facility wage rate; (4) the facility has taken and is taking timely and significant steps to recruit and retain U.S. nurses; (5) there is no strike or lockout at the facility; (6) that the employer will provide the attestation to every nurse employed at the facility; (7) no more than 33% of nurses at facility can be H-1C nurses; and (8) the facility will not authorize H-1Cs to work at a worksite not under its control. Once in H-1C status, nurses are allowed to stay for three years, without extension. There is an annual cap of 500 new H-1C nurses. States with a population of nine million or more are allotted 50 H-1C visas; states with less than nine million are allotted only 25 H-1C visas. Finally, once H-1C nurses begin employment, the hospital can immediately petition for permanent residence. It is recommended that the hospital immediately file on behalf of the nurse because of the large backlogs. This is especially true of nurses from India, China, and the Philippines.

3. H-2B – Temporary workers in short supply The H-2B classification allows a nurse to enter the U.S. and temporarily practice nursing if it can be shown that there are no U.S. nurses available.[4]An example of a potential H-2B situation is a dying nurse who needs a bedside nurse, but there are no available registered nurses in the area. In that case, the USCIS probably would grant the nurse H-2B status because (1) the employment is temporary because the patient is in terminal condition, and (2) there are no available nurses in the area to care for the patient. Note that this procedure is not the most efficient nor the best route for physicians or nurses to attain permanent residency. For example, the approval process for an H-2B visa is tedious and time-consuming. First, the petitioner must first prove there are no available unemployed U.S. nurses. This is established by submitting an application for a labor certification to the Department of Labor, which must be granted. Otherwise, the petitioner must overcome the declined labor certification by submitting countervailing evidence that no qualified nurses are available. By the time this is established, the temporary assignment may be over. Finally, petitioners must also provide the nurse with reasonable costs of transportation to return home after his or her authorized stay expires. Even if H-2B status is granted, it only lasts for one year (extendable to a total of three years), and extensions require a repetition of the entire certification process.[5]Therefore, though this is an option, it is recommended that you choose other immigration options if they are available.

4. L-1 intra-company transfers

Nurses that belong to large transnational hospitals may qualify for an L-1 transfer, provided they meet the statutory requirements.

5. H-1B1 – Singapore and Chile

Nationals of Singapore and Chile are eligible for the H1B1 classification. This is very similar to the H-1B classification, so nurses from those countries could qualify for this status. There are 5400 H1B1 visas set aside specifically for Singapore nationals. Just an interesting thing to remember, if/when your law office in Singapore prospers. :)

6. Trade NAFTA Work Permits (TN) – Canadian and Mexican Nurses Only

Though the H-1C classification is the most appropriate classification for staff positions that require professional nurses, there are other options available in very specific situations. For Canadian and Mexican nationals, the North American Free Trade Agreement has created the TN classification.[6]To qualify, the nurse must be registered in a Canadian province or U.S. state, or have a Mexican Licenciatura degree. The nursing candidate must also meet the licensing requirements of the state of intended employment. The TN classification has many advantages, including: (1) Canadian nurses are not required to provide any attestation or other petition, and though Canadian TN status is limited to one year at a time, it is renewable indefinitely[7]; (2) Mexican nurses may also renew their TN status indefinitely, but they must comply with the attestation requirements of INA § 212(m) and must obtain a visa from a U.S. consulate abroad.[8]7. Legal Permanent Residency

Registered nurses can be sponsored relatively easily as long as they have: (1) a diploma from a nursing school in his or her country, (2) successfully passed the examination offered by the commission on Graduates of Foreign Nursing Schools (CGFNS) or evidence that they passed the NCLEX-RN licensing examination but cannot obtain a social security number, and (3) they have a full and unrestricted license in the state of intended employment. The NCLEX-RN can be taken abroad, including in Canada and India. This is probably one of the best ways for nurses to gain employment and attain legal permanent residency.

8. Employment-Based (EB) Preferences Nurses may easily be eligible for immigrant visa numbers under the EB third preference, and those with advanced degrees are eligible under the EB second preference.[9]Nurses are also eligible for National Interest Waivers, though these are typically easier to attain if the nurse is serving a designated underserved area (for example, the Veteran Administration).

II. Education and Training Immigration Options for Nurses – Job Offer Not Needed

This section, we discuss immigration options for nurses, including: (1) H-3 visas; (2) F visas; (3) B-visas; and (4) miscellaneous (J, Q, O, and R).

1. H-3 Nurse Trainees

Normally, medical professionals do not qualify under the H-3 classification. However, professional nurses that did not qualify for H-1 classification can qualify for H-3 classification to receive brief training that is unavailable in the individual’s home country. Since an H-3 candidate must prove to the USCIS that he or she is coming to the United States primarily to receive training that benefits the candidate, he or she must establish intent to return, including maintenance of a residence in the candidate’s home country. If the medical professional qualifies for an H-3, note that the individual’s training program must fulfill the H-3 classification’s four requirements, and not trigger any of the eight restrictions.

2. F-Visa – Foreign nationals entering the U.S. to attend nursing school

An individual can enter the U.S. on an F-visa to attend professional nursing school, or any other medical study program that qualifies for an F-visa.

3. B-1 visa – Nurses entering the U.S. to take the licensing examination

Medical professionals may enter the U.S. under B status if they satisfy three statutory elements: (1) a foreign residence the alien intends to maintain; (2) a temporary visit; and (3) a mission on business or pleasure.[10]The B-visa excludes individuals arriving to the U.S. to study, work, or represent the foreign press or media.[11]However, nurses may enter the U.S. under B-1 status to take the licensing examination, but not to study for the licensing examination.[12]

4. Miscellaneous Finally, there are a number of other classifications that nurses may qualify for, this includes:

· J-1 Visas: Nurses may enter the U.S. under J-1 exchange visitor status.

· Q-Visas: Nurses may qualify for a Cultural Exchange visa.

· R-Visas: Religious Workers

 


[1] See memorandum by Michael L. Aytes, Acting Ass’t Comm’r, File No. HQ 214h-C (Nov. 17, 1995), reprinted in 15 AILA Monthly Mailing 22 (Jan. 1996).

[2] NRDAA, Pub. L. No. 106-95 (Nov. 12, 1999).

[3] 8 C.F.R. § 214.2(h)(3)(i).

[4] INA § 101(a)(15)(H)(ii)(b), as amended, 8 U.S.C. § 1101(a)(15)(H)(ii)(B).

[5] 8 C.F.R. § 214.2(h)(6)(vi)(E)).

[6] See INA § 214(e), 8 U.S.C. § 1184(e); 8 C.F.R. § 214.6, as amended, 58 Fed. Reg. 69205, 69212 (Dec. 30, 1993).

[7] See generally 8 C.F.R. § 214.6(e), as added, 58 Fed. Reg. 69205, 69214 15 (Dec. 30, 1993); Elizabeth A. Thompson, Temporary U.S. Entry of Canadians Under the U.S. -Canada Free Trade Agreement, 91-1 Immigr. Briefings (Jan. 1991).

[8] 8 C.F.R. § 214.6(d)(1), as added, 58 Fed. Reg. 69205, 69213 (Dec. 30, 1993)

[9] See INA § 203(b), as amended by IA90 § 121(a). (Later changes by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), see, e.g., supra § 20.01 n.8, do not affect this eligibility). The Department of Labor has retained its blanket labor certification for registered nurses in its regulations, at 20 C.F.R. § 656.10. See DOL position in Supplementary Statement, 56 Fed. Reg. 54920, 54921 , and in removing only Groups II, III, and IV (paragraphs (b), (c), (d), thereby retaining nurses in Group I (paragraph (a)), at 54927 (Oct. 20, 1991). See also, generally, Hopper supra note 63 at 69-76. Under 20 C.F.R. § 656.22(c)(2), the blanket certification is the exclusive means of labor certification for professional nurses.

[10] INA § 101(a)(15)(B), 8 U.S.C. § 1101(a)(15)(B).

[11] See H.R. Rep. No. 1365, 82d Cong., 2d Sess. 43 (1953); S. Rep. No. 1137, 82d Cong., 2d Sess. 19 (1952).

[12] See letter of Lawrence J. Weinig, Dep. Ass’t Comm’r, INS Adj., File No. CO214h-C (Dec. 1, 1988), reproduced in 66 Interpreter Releases 539, 554 (May 15, 1989).