As an attorney representing health care facilities, many questions are raised by foreign nurses and their employers.

Is a nurse eligible for the H-1B Visa? The answer is yes and no.

If the requirements for H-1B are met, yes. If they are not met, no. However, the requirements are tricky to meet for a Registered Nurse.

HOW MAY THE REQUIREMENTS FOR H-1B BE MET FOR REGISTERED NURSES?

If the occupation is a specialty occupation and the nurse has attained a bachelor’s or higher degree in the occupation, H-1B is met. For nurses, the specialty occupation is met by

• Licensure, if the state requires it (as of 2002, the only state that requires a BSN is North Dakota);
• The Nurse has a bachelor’s degree or higher (or its equivalency*) for the occupation.

LICENSURE

To be licensed as an RN, an H-1B applicant must graduate from an approved nursing program and pass the NCLEXRN (National Council Licensure Examination for Registered Nurses) exam.
Typically, the minimum requirement for a registered nurse is a two-year associate degree in nursing (A.D.N.), which does not meet the H-1B requirement of a Bachelor’s Degree.

Therefore, how does an RN qualify for an H-1B?

EMPLOYER’S QUALIFICATIONS

For an employer’s RN position to qualify for H-1B, the employer must show that either:

• A bachelor’s or higher degree (or its equivalent*) is normally the minimum requirement for entry into the position; OR
• The degree requirement is common to the industry for parallel nursing positions (in other words: employers in the same industry require their employees to hold the degree when they are employed in the same or a similar position); OR
• The employer normally requires a degree or its equivalent for the position; OR
• The nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree (or its equivalent).

SPECIALIZED NURSING OCCUPATIONS

Compared to an RN, some certified advanced practice registered nursing (APRN) occupations are likely to require a bachelor’s or higher degree and thus are eligible for H-1B. It is not unusual for an APRN position to require that the nurse possess an RN, at least a Bachelor of Science in Nursing (BSN), and some additional graduate level education. Examples of these Advanced Practice Nurses are:

• CNS or Clinical Nurse Specialist: 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;
• CRNA or Certified Registered Nurse Anesthetist;
• CNM or Certified Nurse-Midwife;
• NP – APRN-certified or Certified Nurse Practitioner: Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric Mental Health, Neonatal, and Women’s Health.

ADMINISTRATIVE POSITIONS NURSES

An upper-level “nurse manager” in a hospital administrative position, for example, would be eligible for an H-1B visa because most administrative positions require a bachelor’s degree. According to the Bureau of Labor Statistics, Nursing Services Administrators are generally supervisory level nurses who hold an RN, and a graduate degree in nursing or health administration.

NURSING SPECIALTIES

RNs who are not advanced practice nurses but who have additional clinical experience may take certification examinations, such as school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics.
More and more nursing specialties, such as critical care and peri-operative (operating room), require a higher degree of knowledge and skill than a basic RN or staff nurse position.
In such nursing specialties, an attorney experienced with H-1B petitions and the healthcare industry, will be able to demonstrate that the specialty meets the H-1B requirements of “specialty occupation.”

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This is why I typically first start answering the question by saying that an RN is not enough, you need more.

*Equivalency: The government utilizes a formula that requires the nurse to have three years of specialized training and/or work experience for each year of college level training.