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  • Writer's pictureKivaki Law Firm

Foreign Nurses Coming to the U.S.

Our immigration law offers special procedures for foreign nurses to work, either temporarily or permanently, in the U.S.—as it is recognized a shortage of nurses. Over time, there have been various options that may facilitate nurses’ ability to work and reside in the U.S. We summarize some of these options:

1. H-1C visa: This type of visa for registered nurses working in a health professional shortage area as determined by the Department of Labor (“DOL”) expired as of December 20, 2009.

2. H-1B visa: The H-1B is a popular temporary work visa for foreign nationals who have a job offer from a U.S. employer to work in a "specialty occupation"—the prospective employer must demonstrate that the nursing position is in a specialty occupation.

USCIS uses a four-pronged test to determine whether a position qualifies as a specialty occupation. The first prong is maybe the most scrutinized one as it requires a bachelor’s or higher degree for the position. This can make obtaining an H-1B visa as a nurse difficult, because many states do not require a bachelor’s degree for a typical registered nurse position, as opposed to clinical nurse specialists (CNS), nurse practitioners (NP), certified registered nurse anesthetist (CRNA) or certified nurse midwife (CNM). The most important tip here is to find out the state’s requirements for the nursing position a U.S. employer may offer.

The H-1B visa is subject to a numerical cap. In 2020, USCIS implemented an electronic registration process for this purpose. A cap-subject H-1B petition will not be considered to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended. It also requires obtaining a labor condition application (LCA) from the DOL.

3. H-2B visa: The H-2B classification may allow a nurse to enter the U.S. and temporarily practice nursing if it can be shown that there are no U.S. nurses available. To evidence that there are no available unemployed U.S. nurses, the petitioner must obtain first a labor certification from the DOL—which might be a lengthy process. Also, petitioners must also provide the nurse with reasonable costs of transportation to return home after his or her authorized stay expires. The H-2B status only lasts for one year (extendable to a total of three years,) and extensions require a repetition of the entire certification process.

4. Permanent Residence (“Green Card”): It requires a full-time permanent nurse job position and complete a process of the labor certification (commonly known as PERM).

As we mentioned before, the U.S. government recognizes a shortage of nurses. The current regulation classifies a nurse position as a “Schedule A” position, which means that the U.S. government has recognized the U.S. needs more workers to fill. It makes the PERM process different for nurses. To file the PERM for a foreign nurse, the U.S. employer completes the usual ETA Form 9089, but submits it, along with the petition for foreign worker, to USCIS—not with the Department of Labor, which is the agency that reviews ETA Form 9089s for all non-Schedule A positions.

If USCIS approves the petition for foreign worker and the foreign nurse’s priority date is current (meaning that a visa number has become available, if a wait had been imposed due to the annual allotment of such visas having run out,) the foreign nurse can apply for the green card before USCIS.

Finally, it is important to mention that all foreign nurses, regardless of whether they are coming to the U.S. with an H-1B visa or with a green card, must present certification from a USCIS-approved credentialing organization verifying that they have met the minimum requirements for education, training, licensure, experience, and English proficiency in their field. For more information about the health care worker certification click here.

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