Adjudication of H-1B Petitions for Nursing Occupations

U.S. Citizenship and Immigration Services

Office of the Director (MS 2000)

Washington, DC 20529-2000

February 18, 2015 PM-602-0104

Policy Memorandum

SUBJECT: Adjudication of H-1B Petitions for Nursing Occupations

Purpose

This policy memorandum (PM) provides guidance on the adjudication of H-1B petitions for

nursing positions. Specifically, this PM assists U.S. Citizenship and Immigration Services

(USCIS) officers in determining whether or not a nursing position meets the definition of a

specialty occupation. This PM supersedes any prior guidance on the subject.

Scope

This PM applies to and is binding on all USCIS employees, unless specifically exempted.

Authorities

 INA 101(a)(15)(H)(i)(b) – H-1B nonimmigrant defined

 INA 214(i) – Specialty occupation defined

 8 C.F.R. Part 214.2(h) – H regulations

Background

The H-1B visa classification allows a U.S. employer to petition for a temporary worker in a

specialty occupation. Most registered nurse (RN) positions do not qualify as a specialty

occupation because they do not normally require a U.S. bachelor’s or higher degree in nursing

(or its equivalent) as the minimum for entry into those particular positions. There are some

situations, however, where the petitioner may be able to show that a nursing position qualifies as

a specialty occupation. For example, certain advanced practice registered nurse (APRN)

positions normally require a U.S. bachelor’s or higher degree in a specific specialty as the

minimum for entry into these particular positions.

Approximately twelve years have passed since USCIS issued guidance on determining whether

or not a nursing position is a specialty occupation.

Because of changes in the nursing industry,

The former Immigration and Naturalization Service issued a memorandum from Johnny N. Williams, Executive

Associate Commissioner, INS Office of Field Operations, Guidance on Adjudication of H-1B Petitions filed on

Behalf of Nurses, HQISD 70/6.2.8-P (November 27, 2002).

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USCIS is issuing this PM to provide updated guidance on the adjudication of H-1B petitions for

nurses.

Guidance

I. Requirements for H-1B Classification in a Specialty Occupation

The H-1B visa classification allows U.S. employers (petitioners) to petition to hire employees

(beneficiaries) to work in specialty occupations. The term “specialty occupation” means an

occupation that requires: (1) theoretical and practical application of a body of highly specialized

knowledge; and, (2) attainment of a bachelor’s or higher degree in the specific specialty (or its

equivalent) as a minimum requirement for entry into the occupation in the United States.

To qualify as a specialty occupation, the regulations require that the petitioner demonstrate that

the position meets at least one of the following criteria:

 A baccalaureate or higher degree or its equivalent is normally the minimum requirement for

entry into the particular position;

 The degree requirement is common to the industry in parallel positions among similar

organizations or, in the alternative, an employer may show that its particular position is so

complex or unique that it can be performed only by an individual with a degree;

 The employer normally requires a degree or its equivalent for the position; or

 The nature of the duties [is] so specialized and complex that the knowledge required to

perform the duties is usually associated with the attainment of a baccalaureate or higher

degree.

For an H-1B petition to be approved, the petitioner must establish that the offered position meets

all of the applicable statutory and regulatory provisions.

II. Registered Nurses

Registered nurses generally do not qualify for H-1B classification.

This is because most RN

positions do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent)

as the minimum for entry into these particular positions and thus are unable to qualify as

specialty occupations. According to the U.S. Department of Labor’s Occupational Outlook

Handbook (OOH), RNs usually take one of three education paths: a bachelor’s of science degree

INA 214(i)(1) and 8 C.F.R 214.2(h)(4)(ii).

8 C.F.R. 214.2(h)(4)(iii)(A).

8 C.F.R. 214.2(h)(4)(iii)(A)(1). The degree must be in the specific specialty that is directly related to the H-1B

position, unless the petitioner demonstrates that an alternative, closely related specialty degree applies to the

position.

According to the National Council of State Boards of Nursing (NCSBN) an RN is an individual who has graduated

from a state-approved school of nursing, passed the NCLEX-RN Examination and is licensed by a state board of

nursing to provide patient care. See NCSBN’s website at https://www.ncsbn.org/2731.htm. Standard RN positions

provide and coordinate patient care, educate patients and the public about various health conditions, and provide

advice and emotional support to patients and their family members. See the online version of Department of Labor’s

Occupational Outlook Handbook (OOH) at http://www.bls.gov/ooh/healthcare/registered-nurses.htm.

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in nursing (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved

nursing program.

Generally, licensed graduates of any of the three types of education programs

(bachelor’s, associate’s, or diploma) qualify for entry-level RN positions. Although the ADN is

still the most common degree people pursue to become an RN, nursing candidates are

increasingly pursuing BSN degrees.

In addition, RNs with an ADN or diploma may return to

school to earn a bachelor’s degree through an ADN-to-BSN program. There are also master’s

degree programs in nursing, combined bachelor’s and master’s programs, and programs for those

who wish to enter the nursing profession but hold a bachelor’s degree in another field.

The private sector is increasingly showing a preference for more highly educated nurses. The

American Nurses Credentialing Center (ANCC) Magnet Recognition Program recognizes health

care organizations that advance nursing excellence and leadership. In this regard, achieving

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.

Registered nurses’ duties and titles often depend on where they work and the patients with whom

they work. Their work can focus on specific areas, including the following examples:

For more information on registered nurses, see the online version of Department of Labor’s Occupational Outlook

Handbook (OOH) at http://www.bls.gov/ooh/healthcare/registered-nurses.htm. USCIS recognizes the OOH as an

authoritative source on the duties and educational requirements of the occupations that it addresses.

Institute of Medicine. The Future of Nursing: Leading Change, Advancing Health. Washington, DC: The National

Academies Press (2011) at http://www.nap.edu/catalog.php?record_id=12956.

See http://www.bls.gov/ooh/healthcare/registered-nurses.htm#tab-4 (last visited March 24, 2014).

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. Additionally, to apply for Magnet

designation, the organization must show what plans are in place to achieve the recommendation of having an 80%

baccalaureate prepared registered nurse workforce by 2020. See ANCC (American Nurses Credentialing Center

(ANCC) Magnet Recognition Program® FAQ: Data and Expected Outcomes at

http://www.nursecredentialing.org/FunctionalCategory/FAQs/DEO-FAQ.html.

See Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2014-15 Edition,

Registered Nurses, http://www.bls.gov/ooh/healthcare/registered-nurses.htm (last visited April 21, 2014).

Position

Duties

Addiction nurses

Care for patients who need help to

overcome addictions to alcohol, drugs,

tobacco, and other substances.

Cardiovascular nurses

Care for patients with heart disease and

people who have had heart surgery.

Critical care nurses

Work in intensive care units (ICU) in

hospitals, providing care to patients with

serious, complex, and acute illnesses

and injuries that need very close

monitoring and treatment.

Emergency room nurses

Work as part of a team with physicians,

other nurses and healthcare

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Depending on the facts of the case, some of these RN positions may qualify as specialty

occupations.

III. Advanced Practice Registered Nurses

Advanced practice registered nurse defines a level of nursing practice that utilizes extended and

expanded skills, experience and knowledge in assessment, planning, implementation, diagnosis

and evaluation of the care required.

Positions that require nurses who are certified APRNs will

APRNs provide and coordinate patient care and they may provide primary and specialty health care. APRNs who

work with patients typically perform many of the same duties as RNs, gathering information about a patient’s

professionals to provide care, monitor

health conditions, plan long-term care

needs, administer medicine, use medical

equipment, perform minor medical

operations, and advise patients and their

families on illness, care and continued

care after a hospital stay.

Genetics nurses

Provide screening, counseling, and

treatment of patients with genetic

disorders, such as cystic fibrosis.

Neonatology nurses

Take care of newborn babies.

Nephrology nurses

Care for patients who have kidney-

related health issues stemming from

diabetes, high blood pressure, substance

abuse, or other causes.

Oncology nurses

Combine their scientific knowledge,

technical skills, and caring to help

people living with cancer and their

families throughout the cancer journey –

from diagnosis and treatment to

survivorship and end-of-life care.

Pediatric nurses

Work with patients from infancy to

young adulthood, giving developmental

screenings, immunizations, and treating

common illnesses.

Peri-Operative (Operating Room) nurses

Have a hands-on role, directly assisting

surgeons during a procedure. For

instance, they may help to suction the

incision site or suture a wound.

Rehabilitation nurses

Care for patients with temporary or

permanent disabilities.

Other nurses

Have jobs in which they do not work

directly with patients, but must still

have an active registered nurse license.

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generally be specialty occupations due to the advanced level of education and training required

for certification.

However, having a degree is not, by itself, sufficient for the position to qualify for H-1B

classification. A critical factor remains whether a baccalaureate or higher degree in a specific

specialty (or its equivalent) is normally required for these particular positions. It must be noted

that a beneficiary’s credentials to perform a particular job are relevant only when the job is found

to qualify as a specialty occupation. USCIS is required to follow long-standing legal standards

and determine whether the proffered position qualifies as a specialty occupation, and whether a

beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed.

Each state legislature and Board of Nursing decides on the title it will use for APRNs and

regulates licensure, scope, and standards of practice. While the burden is on the petitioner to

establish eligibility for the benefit sought, generally, the following is a non-exhaustive list of

APRN occupations that may satisfy the requirements for a specialty occupation:

 Certified Nurse-Midwife (CNM);

 Certified Clinical Nurse Specialist (CNS);

 Certified Nurse Practitioner (CNP); and

 Certified Registered Nurse Anesthetist (CRNA).

IV. State Licensing Requirements and the Nurse Licensure Compact

The nursing profession is regulated at the state level. In all states, the District of Columbia, and

U.S. territories, RNs must have a nursing license. To become licensed, RNs must graduate from

an approved nursing program and pass the National Council Licensure Examination (NCLEX).

Other requirements for licensing vary from state to state.

If a state requires at least a bachelor’s degree in nursing to obtain a nursing license, an RN

position in that state would generally be considered a specialty occupation. At this time, no state

requires a bachelor’s degree in nursing for licensure. However, state licensure requirements are

subject to change.

condition and taking action to treat or manage the patient’s health. However, APRNs are also trained to perform

many additional functions, including ordering and evaluating test results, referring patients to specialists, and

diagnosing and treating ailments. APRNs focus on patient-centered care, which means understanding a patient’s

concerns and lifestyle before choosing a course of action. http://www.bls.gov/ooh/healthcare/nurse-anesthetists-

nurse-midwives-and-nurse-practitioners.htm#tab-2 (visited April 16, 2014).

Cf. Matter of Michael Hertz Assoc., 19 I&N Dec. 558, 560 (Comm'r 1988) (“The facts of a beneficiary’s

background only come at issue after it is found that the position in which the petitioner intends to employ him falls

within [a specialty occupation].”).

Examples of APRN duties are available on the OOH in the chapter entitled “Nurse Anesthetists, Nurse Midwives,

and Nurse Practitioners.” See http://www.bls.gov/ooh/healthcare/nurse-anesthetists-nurse-midwives-and-nurse-

practitioners.htm (visited March 24, 2014). Advanced Practice Psychiatric Nurses (APPN) is an example of how

different states or employer may use the same title for different positions. For example, in New Jersey, APPNs with

CNS or NP credentials in psychiatric mental health nurse are called nurse practitioners by the state. See

http://www.apna.org/i4a/pages/index.cfm?pageid=3866.

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Additionally, states allow for licensure by endorsement which means that once a nurse is granted

a valid license in his or her home state, he or she can apply and pay applicable fees in any other

state and be granted a license in the new state. There are several publically available databases

where state requirements and nurse licensures can be verified, including the National Council of

State Boards of Nursing (NCSBN), Nursys Licensure Quick Confirm, and Nursys Licensure

Verification.

Many states also participate in a licensure compact, which enables multistate licensure for

nurses. The Nurse Licensure Compact (NLC) allows an RN and licensed practical/vocational

nurse (LPN/VN) to have one multi-state license in a primary state of residency (the home state)

and to practice in other compact states (remote states), while subject to each state’s practice laws

and discipline.

Under the NLC, foreign nurses applying for licensure in a compact state may

declare either the country of origin or the compact state as the primary state of residency.

If the

foreign country is declared the primary state of residency, a single-state license will be issued by

the compact state.

To date, APRNs are not included in this compact. Therefore, APRNs must

apply in each state in which they practice, unless exempted when employed in a federal facility.

V. Evidence to Establish a Position Qualifies as a Specialty Occupation

When submitting an H-1B petition, the petitioner must show by a preponderance of the evidence

that the proffered position qualifies as a specialty occupation. As in other visa classifications

administered by USCIS, the preponderance of the evidence standard requires that a petitioner

show that what it claims is more likely the case than not. This is a lower standard of proof than

both the standard of “clear and convincing evidence,” as well as the “beyond a reasonable doubt”

standard that applies to criminal cases.

In determining whether a petitioner meets the preponderance of the evidence standard,

adjudicators will consider all of the evidence in the record of proceeding. Such documentation

submitted by petitioners often includes evidence regarding:

 The nature of the petitioner’s business;

 Industry practices;

Currently, approximately 24 states participate in the Nurse Licensure Compact (NLC), allowing for mutual

recognition of a nurse’s license. The remaining 26 noncompact states allow for reciprocity, but a nurse must have a

license specific to practice in any noncompact state. This will require an application for licensure by endorsement

and completion of any of the new state board's regulations and provision of all of the requested documentation. The

NCSBN website provides a map of which states require a master’s or higher degree to practice in an advanced role.

See https://www.ncsbn.org/2567.htm. Nursys Licensure Quick Confirm provides online nursing reports for

employers, nurses and the general public at https://www.nursys.com/LQC/LQCSearch.aspx. Nursys License

Verification hosts online verification for nurses requesting to practice in another state at

https://www.nursys.com/NLV/NLVSearch.aspx.

For illustrative examples and additional information, see the National Council of State Boards of Nursing website

at https://www.ncsbn.org/nlc.htm#moving. Additionally, individual state licensing boards provide information

about individual licensees as a public service.

A compact state is any state that has adopted the NLC.

Applying for reciprocity is not the same as applying for a license. Nurses need to have a valid license in their

current state before applying for transfer to another.

See Matter of Chawathe, 25 I&N Dec. 369, 375, 376 (AAO 2010).

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 A detailed description of the duties to be performed within the petitioner’s business

operations;

 Advanced certification requirements;

 ANCC Magnet Recognized status;

 Clinical experience requirements;

 Training in the specialty requirements; and

 Wage rate relative to others within the occupation.

Officers must review each piece of evidence for relevance, probative value, and credibility, both

individually and within the context of the totality of the evidence to determine whether the

proffered position more likely than not qualifies as a specialty occupation. The duties of the

position should be evaluated against the four regulatory criteria listed in 8 C.F.R.

214.2(h)(4)(iii)(A) with the understanding, again, that the required degree must be one in a

specific specialty. While USCIS recognizes the OOH as one authoritative source on the duties

and educational requirements of the wide variety of occupations that it addresses, the OOH is not

always determinative. Other authoritative and/or persuasive sources provided by the petitioner

will also be considered.

Use

This PM is intended solely for the training and guidance of USCIS personnel in performing their

duties relative to the adjudication of petitions. It is not intended to, does not, and may not be

relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any

individual or other party in removal proceedings, in litigation with the United States, or in any

other form or manner.

Contact Information

Questions or suggestions regarding this PM should be addressed through appropriate channels to

the Office of Policy and Strategy, Business and Foreign Workers Division.

There are many advanced certifications available to nurses, including certifications for Critical Care Registered

Nurse, Progressive Care Certified Nurse, Critical Care Registered Nurse e-ICU, Critical Care Clinical Nurse

Specialist, Acute Care Nurse Practitioner, Certified Nurse Manager and Leader, Cardiac Medicine Sub-Specialty

Nurse, and Cardiac Surgery Sub-Specialty Nurse.