By Cristina A. Godinez, Esq.

More foreign nurses may be able to come and work in the U.S. sooner than usual, following the release of a recent memo by the U.S. Citizenship and Immigration Services (USCIS) describing how they can be sponsored for the H-1B temporary work visa.

The H-1B visa is available to foreign workers who fill specialty occupation jobs in the U.S., such as physical therapists, accountants, engineers, graphic designers, finance or IT professionals, or teachers.

The term ‘specialty occupation’ is generally described as jobs that require highly specialized knowledge or at least a bachelor’s degree for an entry-level position.

The critical factor for H-1B sponsorship is the job requirement and not whether the foreign worker has a bachelor’s degree.

The recent USCIS policy memorandum, dated July 11, potentially expands and formalizes which nursing positions in the U.S. may be considered for H-1B sponsorship. It could open the door to more foreign RNs who already possess at least a bachelor’s degree in the field of nursing.

Since entry-level nursing jobs in the U.S. do not normally require a bachelor’s degree, prior USCIS policy did not consider nursing as an H-1B specialty occupation, except in limited cases. As a result, very few foreign nurses qualify for H-1B visas, and eventually obtain their green card while working in the U.S.

Most of them come to the U.S. on immigrant work visas after waiting for three to five years.  For instance, nurses from the Philippines – one of the largest sources of foreign RNs – are currently stuck in a four-year wait. Under the recent seven-page memo, foreign registered nurses can skip the long wait for immigrant visas and instead enter the U.S. as H-1B temporary workers and pursue their green card applications while in the U.S.

Three general groups of nursing jobs in the U.S. may now be H-1B-caliber positions:

• Nursing positions at healthcare organizations, under the American Nurses Credentialing Center (ANCC) Magnet Recognition Program. An H1B sponsor with ANCC Magnet status indicates that its nursing workforce has attained high standards of nursing practice and possesses at least a bachelor’s degree.

• Nurses performing specialized and complex duties usually associated with the attainment of a bachelor’s degree, such as: addiction nurses, cardiovascular nurses, critical care nurses; emergency room nurses; genetics nurses; neonatology nurses; nephrology nurses; oncology nurses; pediatric nurses; peri-operative nurses; or rehabilitation nurses.

• Advanced Practice Registered Nurse (APRN) is considered a specialty occupation “due to the advanced level of education and training required for certification.” Some APRN positions include the Certified Nurse-Midwife (CNM); the Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and the Certified Registered Nurse Anesthetist (CRNA).

All nurses in the U.S. must possess a nursing license. To be licensed, the nurse must complete an approved nursing program and pass the National Council Licensure Examination (NCLEX).  Other specific requirements to practice the nursing profession vary from state-to-state.

At present, there is no state that requires a bachelor’s degree in nursing for licensure. However, state licensure requirements may change. In case a bachelor’s degree will be required for a nursing job in a particular state, a foreign RN may obtain an H-1B work visa for that particular job.

The U.S. government has projected a faster than average growth in the demand for nurses until 2022. Many factors lead to the growing need for nurses and other healthcare professionals in the U.S., including: the implementation of the Affordable Care Act (also referred to as “Obamacare”); the emphasis in preventative care; high rates of chronic conditions; and the increasing demand for healthcare from the baby boomer population.

H-1B workers are allowed to work for a maximum of six years in the U.S. This six-year maximum may be extended, provided a green-card case is on track for the H-1B worker. Their spouse and children under 21 years old may obtain H-4 visas and accompany them in the U.S.

At present, an H-4 spouse is not allowed to work while in the U.S. The USCIS, however, is studying the possibility of granting H-4 spouses work authorization.

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Cristina A. Godinez is an immigration attorney who handles cases involving work visas, family and employer-sponsored green cards and naturalization. She has successfully obtained green cards for healthcare workers, IT and finance professionals, teachers and other workers, including self-petitioned extraordinary-ability applicants. She is also ad hoc coordinator at the Migrant Center at the Church of St. Francis of Assisi in New York City where she handles humanitarian immigration benefits cases. She has helped hundreds of non-citizens navigate U.S. immigration law while advocating in behalf of highly vulnerable migrants. She is a member of the American Immigration Lawyers Association (AILA). If you have questions or comments, please email crisgodinez@lawyer.com.