USCIS Provides Guidance on Adjudicating H-1B Petitions for Nursing Occupations

On July 21, 2014, U.S. Citizenship and Immigration Services (USCIS) released to the public a policy memorandum (PM) dated July 11, 2014, numbered PM-602-0104, and entitled “Adjudication of H-1B Petitions for Nursing Occupations.” This PM provides guidance on the adjudication of H-1B petitions for nursing positions to assist 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.

As 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. The PM explains that RNs usually take one of three education paths: an associate’s degree in nursing (ADN), a diploma from an approved nursing program, or a bachelor’s of science degree in nursing (BSN). The PM also explains that although the ADN remains the most common degree RNs obtain, nursing candidates are increasingly pursing BSNs and RNs with an ADN or diploma may return to school to earn a bachelor’s degree through an ADN-to-BSN program. In addition, there are 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 PM further notes that the private sector is increasingly showing a preference for more highly educated nurses.

The PM reviews common types of nursing positions and the duties for those positions as well as advance practice registered nurse (APRN) positions–those that require extended and expanded skills, experience and knowledge in assessment, planning, implementation, diagnosis, and evaluation of the care required. The PM advises USCIS officers that positions that require nurses who are certified APRNs will generally be specialty occupations due to the advanced level of education and training required for certification, but cautions that having a degree is not, alone, sufficient for the position to qualify for H-1B classification. Critical to this determination is whether a baccalaureate or higher degree in a specific specialty (or its equivalent) is normally required for these particular positions. The PM also stresses that a beneficiary’s credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation.

While the burden is on the petitioner to establish eligibility for the benefit sought, the PM advises USCIS officers that 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)

• Certified Registered Nurse Anesthetist (CRNA)

The PM also explains state licensing practices and that, 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 but, at this time, no state requires a bachelor’s degree in nursing for licensure.

Finally, the PM explains the burden of proof and the evidence required for a petitioner to establish that the nursing position offered qualifies as a specialty occupation. The petitioner must show by a preponderance of the evidence that the proffered position qualifies as a specialty occupation–that is, that what it claims is more likely the case than not. In determining whether a petitioner meets the preponderance of the evidence standard, adjudicators are instructed to consider all of the evidence in the record of proceeding, which often includes evidence regarding:

• the nature of the petitioner’s business

• industry practices

• a detailed description of the duties to be performed within the petitioner’s business operations

• advanced certification requirements

• American Nurses Credentialing Center (ANCC) Magnet recognized status1

• clinical experience requirements

• training in the specialty requirements

• wage rate relative to others within the occupation

USCIS Provides Guidance on Adjudicating H-1B Petitions for Nursing Occupations

Adjudicators are instructed to 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 is to be evaluated against the four regulatory criteria listed in 8 CFR § 214.2(h)(4)(iii)(A) with the understanding that the required degree must be one in a specific specialty. The PM points out that, while USCIS recognizes the Department of Labor’s Occupational Outlook Handbook (OOH)2 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 must also be considered.

The final PM contains USCIS’ standard disclaimer stating that it is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of petitions and 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.”

Footnotes
1 See ANCC (Magnet Recognition Program® FAQ: Data and Expected Outcomes at http://www.nursecredentialing.org/FunctionalCategory/FAQs/DEO-FAQ.html.
2 http://www.bls.gov/ooh/.

 

The PM is linked here.

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