Visa Options for Nurses-Nurse Visas
Nonimmigrant visa options for nurses are limited because most employers only require a two-year associate degree rather than a four-year bachelor’s degree. Note: Most states do not require bachelor’s degrees for a nursing license.
H-1B visas are available to individuals who work in an occupation that requires specialized knowledge and a bachelor’s or higher degree in the specific specialty or its equivalent.
The USCIS has determined that nursing, as a profession, is not a specialty occupation, because a bachelor’s degree is not generally required to become a registered nurse (RN). However, in a 2002 memorandum, the United States Citizenship and Immigration Service acknowledged that there are areas of nursing where the duties are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s or higher degree. These areas include:
Advanced Practice Registered Nurses (APRNs), including clinical nurse specialist, nurse practitioner, certified RN anesthetist, certified nurse-midwife or certified nurse practitioner. If the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess a registered nursing license, at least a bachelor of science degree in nursing and some additional graduate level education; Administrative nurse positions, such as “upper-level nurse managers” in hospital administration positions; and Nurses in certain specialized areas.
The USCIS specifically cites critical care and peri-operative (operating room) nurses as two examples of positions requiring a higher degree of knowledge and skill than a typical RN or staff nurse position. The USCIS indicates that passing a certification examination for a particular type of position is an important indicator. Examples of these types of certification examinations are school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. Applications should include evidence such as affidavits from independent experts or other means showing that the job duties are so specialized and complex that a bachelor’s or higher degree is appropriate. Unfortunately, because these types of cases are adjudicated on a case-by-case basis, the USCIS has applied the memorandum with very strict scrutiny. Nevertheless, the memo certainly will be relevant in cases where employers and applicants seek to appeal denials of properly filed cases.
As an alternative to filing an INS petition for H-1 cases, citizens of Mexico and Canada can apply for TN status. To qualify the applicant must be employed in one of the sixty-three listed professions in NAFTA. Most professions require either a bachelor’s or a licensures degree.
TN-1 Visas TN-1 visas are available under the North American Free Trade Agreement (NAFTA). Although not uniformly recognized as a specialty occupation for H-1B purposes, RNs were specifically included on the list of professions for which TN visas could be used, and any RN position can potentially qualify.
Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. RNs must demonstrate eligibility by providing a provincial or state license or Licenciatura degree. However, in order to be admitted, the RN must present a permanent state license, a temporary state license, or other temporary authorization to work as an RN, issued by the state nursing board in the state of intended employment.
Expanded Opportunities for J-1 Physicians
In 2005, the President signed a bill expanding opportunities for foreign-born, American-trained physicians. Under the new law, physicians are eligible for a waiver of the home-residency requirement (which mandates that they return to their home country for two years before they can get an H-1B visa or permanent residency) if they can show that their departure would cause an extreme hardship for a United States citizen or permanent resident spouse or child; they would face persecution; or a government agency vouches that the physician’s remaining in the U.S. is in the public interest.
It is that last category — the interested government agency waiver — that is used by most doctors wishing to stay in the U.S. There are a few common requirements:
- The physician needs to work in a shortage area designated by the U.S. Department of Health and Human Services, generally a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA).
- The physician must work for at least 40 hours a week in the shortage area.
- The physician must work for three years on an H-1B visa in the shortage area before changing employers and seeking permanent residency.
In December 2004, President Bush signed Public Law 108-441, extending the Conrad program (created to allow state health departments to sponsor up to 20 doctors a year) for two years and making several changes to state and federal J-1 waiver programs:
State and federal agency waiver applicants are exempt from the annual H-1B numerical cap.
Each state will be able to use five waivers per year for applicants taking jobs outside of federally designated medical shortage areas if they can demonstrate that they will be serving people who live in shortage areas.
Both state and federal agencies can sponsor specialists.
The five flexibility slots available to each state will represent a major opportunity for large regional hospitals that cannot qualify for shortage- area designation but service populations in shortage areas.
In short, Congress recognized that one way to address the shortage of physicians in the U.S. is to allow J-1 physicians to remain in the U.S. if they can obtain a waiver of the home-residency requirement. Now the U.S. is in a situation in which it has a serious shortage of doctors, and a large portion of the foreign physicians training here are from countries not particularly concerned if they return home (India, for example, has an unemployment problem for physicians in many specialties). With the passage of this law, foreign physicians now have expanded opportunities in the U.S., and physician shortage areas will have greater access to physicians.
Grounds for Inadmissibility
In order to obtain a visa a nurse must also be admissible to the United States.
The concept of inadmissibility arises in a number of contexts. It is an issue when a visa application is made and the foreign national seeks entry to the United States. It also comes up when a person in deportation proceedings is alleged to have been inadmissible at the time of entry or was not inspected at his or her entry. Inadmissibility can also be a factor if a permanent resident is alleged to have abandoned his or her status. There are 10 basic grounds of inadmissibility.
Health-related grounds: Persons with communicable diseases that are considered significant public health risks are inadmissible. In addition, a failure to show documentation of certain vaccinations is a ground of inadmissibility. Persons with a history of physical or mental disorders that have or may in the future pose a threat to the person or others are inadmissible. Finally, people found to be drug abusers are inadmissible.
Criminal grounds: An individual convicted of a crime involving moral turpitude is inadmissible. However, a single offense that occurred before the age of 18 and more than five years before the application for the visa will not be considered, nor will offenses for which the maximum punishment was only one year and the alien was sentenced to six months or less. Engaging in prostitution or commercialized vice, as well as convictions involving controlled substances, are all bases for inadmissibility. One who committed a serious offense in the U.S. and has claimed immunity from prosecution is also inadmissible.
Security grounds: If a consular officer or U.S. Citizenship and Immigration Services (USCIS) inspector has reasonable ground to believe that the person is coming to the U.S. to engage in espionage or sabotage, or to violate any law relating to prohibitions on exports from the U.S., this renders one inadmissible. Members of designated terrorist organizations are inadmissible, as are those engaged in terrorist activities.
If it is determined that the alien’s presence in the U.S. would have negative foreign policy consequences, the person can be denied admission. Current or former members of the Communist Party or other totalitarian organizations, people who assisted in Nazi-era persecution and/or those who have engaged in genocide are inadmissible.
Public charge grounds: A person who is likely to become a public charge is inadmissible. The effect of this is that family-based immigrants must have a valid affidavit of support.
Labor certification grounds: A person coming to the U.S. to work must have a labor certification, unless he or she qualifies for another employment-based immigration category. People coming to the U.S. to work as physicians must pass parts I and II of the National Board of Medical Examiners Examination or its equivalent. Other health care workers must present certification from designated entities.
Undocumented entry and immigration status grounds: Anyone coming to the U.S. without permission from the USCIS or the State Department is inadmissible. Failure to attend removal proceedings without a good reason makes a person inadmissible for five years, as does violating the terms of a student visa. Anyone who engages in fraud or misrepresentation in an effort to enter the U.S. is inadmissible, including those who have made a false claim of U.S. citizenship.
Documentation grounds: An applicant for entry who does not possess a valid immigrant or nonimmigrant visa is inadmissible.
Ineligibility for citizenship grounds: A person permanently barred from obtaining U.S. citizenship is inadmissible. This category includes those who evaded military service based on their status as an alien and those who left the U.S. to avoid the draft.
Previous removal or unlawful presence grounds: After a first deportation, an individual is inadmissible for five years; after subsequent deportations, the period of inadmissibility is 20 years. A person deported because of an aggravated felony is permanently inadmissible. Those who have been unlawfully present in the U.S. for more than 180 days, but less than one year, are inadmissible for three years. Unlawful presence of more than a year leads to inadmissibility for 10 years.
Miscellaneous grounds: Those who are coming to the U.S. to engage in polygamy, those who are required to assist another person who is inadmissible, those who have detained a U.S. citizen child outside the U.S. (until they comply with any court order (s) regarding the child’s custody) and former U.S. citizens who renounced their citizenship for tax purposes are all inadmissible.