ANALYSIS OF THE NEW USCIS MEMO ON H-1B FOR RNs
USCIS has just publishedand released an updated H-1B Memorandum which purports to provide guidance toUSCIS officers in their adjudication of H-1B petitions for RegisteredNurses. This Memorandum updates thelong-standing 2002Johnny Williams USCIS Memorandum on the same subject. The new Memorandum does not break new ground. It is not expected that the Memorandum willresult in a significant increase in approved H-1B petitions, although its Backgroundsection helpfully reminds USCIS officers that “there are some situations,however, where the petitioner may be able to show that a nursing positionqualifies as a specialty occupation”.
USCIS officers presentlydeny nearly all H-1B petitions for Registered Nurses, regardless of thespecific facts of the petition. The fundamentalproblem for RNs seeking H-1B status is that few US Registered Nurse positionsin the US require a Bachelor’s degree in Nursing for entry into theposition. In order to have an H-1Bapproved it is not enough that the applicant holds a Bachelors’ degree; theposition itself must require a Bachelor’s degree. The Memorandum makes this clear: “Registerednurses generally do not qualify for H-1B classification” (Page 2).
Even nurses whowork in units where 100% of the nurse workforce holds Bachelors of Science in Nursing(BSN) have seen H-1B denials. Thesedenial opinions dismiss the employer’s facts, and simply cite to the Occupational Outlook Handbook, whichgenerally says that nursing positions do not require Bachelor’s degrees.
As the Williams Memorandumexplained, the new Memorandum confirms, there are exceptions to this generalrule. For instance, the new Memorandum favorablyrecognizes that hospitals with magnet status, “indicates that the nursingworkforce within an institution has attained a number of high standardsrelating to quality and standards of nursing practice” (Page 3). The Memorandum then buries in footnote 9 a veryimportant fact: “For example, as of January 1, 2013, 100% of nurse managers ofindividual units/wards/clinics must have at least a baccalaureate degree innursing upon submission of the Magnet application.” This Memorandum would have been improved ifthe author had plainly stated that Nurse Manager positions at Magnet hospitals qualifyfor H-1B visas. Nonetheless, this acknowledgement should be helpful in future H-1B petitions for Magnet HospitalNurse Managers.
Beyond this sectionon Magnet hospitals the new Memorandum offers little guidance for USCISofficers. In several places the Memorandumtells officers to analyze cases on the facts of the petition and on a case bycase basis, which is apparent.
The new Memorandummirrors the Williams Memorandum in that it reminds officers that Advance PracticeNursing position are generally specialty occupations and approvable for H-1Bvisas. It also helpfully recognizes thatsome specialties, such as critical care and peri-operative (operating room) mayqualify for the H-1B.
While USCIS HQmissed an opportunity to be clearer about which RN positions were approvablefor 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.