Sindell Law Offices E-Min Newsletter (Vol. 3) - English Article #12

Under current U.S. immigration laws, immigrant visas are the easiest and fastest way to obtain status for a nurse. The nurse must obtain a certification from an organization approved by USCIS that states that the nurse's education and licensing credentials are equivalent to an American's. Currently, only one organization - the Commission on Graduates of Foreign Nursing Schools is approved as an agency authorized to issue the certification document for nurses.


If an immigrant visa option is not available, since it can take several years to obtain permanent residents, nurses can consider a non-immigrant visa. The main problem with a non-immigrant is that employers only require a two-year degree rather than four-year bachelor's degree and because most states do not require bachelor's degrees for a nurse license.


In the past, there was a visa category known as an H-1A, for registered nurses, but this visa type expired in 1995, when Congress believed there was no shortage of RN's.


Through policy memos and case decisions, the USCIS has determined that nursing, as a profession, is not a per se a specialty occupation, since a bachelor's degree is not generally required to become a registered nurse which generally takes it out of the H-1b category.


However, USCIS acknowledged in a field memorandum that spelled out for the first time, when H-1B visas are appropriate for nurses. The USCIS memo listed a number of more specialized RN positions that might qualify for an H-1B visa and this may help certain RN's in the future.



Advance Practice Registered Nurses


Advance practice registered nurses (APRNs) will generally qualify for H-1B visas because these positions usually require more education and training than the typical RN. Certification requirements such as clinical nurse specialist (CNS), certified registered nurse anesthetist (CRNA), certified nurse-midwife (CNM), or certified nurse practitioner (APRN-certified) are helpful in showing the position is advanced. If the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess an RN, at least a Bachelor of Science in Nursing (BSN), and some additional graduate level education.


The USCIS memorandum also states that, "upper level nurse managers" in hospital administration positions may work for H-1B visas since these positions usually require bachelor’s degrees. The USCIS also lists the following positions that will normally qualify for an H-1B visa:


- Clinical Nurse Specialists (CNS): 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): Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women’s Health.

- Certified Registered Nurse Anesthetist (CRNA)

- Certified Nurse-Midwife (CNM).


The USCIS also specifically cites critical care and peri-operative (operating room) nurses as possibly specialty occupation positions. The service mentions that passing a certification examination for a particular type of position is an important indicator.


Any nurse case should include expert position letters or letters from peers in the industry to show that at least a Bachelor's Degree in Nursing or the equivalent is required to perform the duties of the position. It is incumbent upon the petitioner to show that the position is a specialty occupation and fits into one of the categories enumerated in the USCIS memo. Also, the memo does not emphatically state that the positions listed are definitely specialty occupations and would qualify as H-1b positions, but that the positions MIGHT qualify. Therefore, any petition for this kind of position should be accompanied by additional evidence showing that the position is a specialty occupation and of course, that the nurse possesses a bachelor’s degree in nursing or the equivalent in experience.


The other possibility may be an H-1b visa. Your sister would have to have a Bachelor's Degree in a major relating to the position and the position would have to require a Bachelor's Degree in that major. If she had a major in another area or less than a Bachelor's Degree, she may be able to show that she possesses the equivalent in experience. It is a difficult sell, but she could make the argument, if she has the requisite background, that she has the equivalent of a bachelor's degree in culinary arts, thus qualifying her for a job as a food services manager. Whether this would work would depend on the size of the restaurant, the amount of available work at the H-1b professional level, and whether the immigration service would agree that the position is a specialty occupation position.


If she has extraordinary ability in food coordination and is well known internationally, possibly an O-1 visa could be applied for. An L-1 visa would seem difficult since she is in F-1 here in the U.S. and I assume she has been here for awhile. Also, there seems to be no parent or subsidiary company involved in the facts presented and there is no indication that she worked for any parent or subsidiary company abroad.


My feeling is that the main problems to be encountered in this case are your sister's background and whether there is a substantial investment in the restaurant. If you can satisfy the criteria on both of these levels, I think that your sister has the possibility of obtaining some sort of non-immigrant work visa to work in your restaurant.