COURT DENIES H-1B VISAS TO REGISTERED NURSES

In a recent case, the Fifth Circuit dealt a blow to hospitals and employment agencies that seek to employ foreign nurses on H-1B visas, finding that nursing is not a “specialty occupation” and therefore does not meet the requirements for an H-1B visa.

Vintage Health Resources, an employment agency that specializes in placing foreign nurses at US hospitals, sought H-1B visas for seven nurses.  Each of the nurses for whom a visa was sought possessed a Bachelor’s of Science of Nursing (BSN) degree.  Indeed, Vintage required all of its nurses to possess a BSN degree.  The INS denied the H-1B visa applications, stating that Vintage failed to prove the nurses would be working in a “specialty occupation.”  The Immigration and Nationality Act defines “specialty occupation” as one in which the “attainment of a bachelor’s or higher degree . . . is a minimum for entry into the occupation in the United States.”  While Vintage could show that it required all nurses to possess a BSN degree, the INS denied the visas because it could not be proven that the hospitals in which the nurses would work had any such requirement. 

On appeal, Vintage was faced with quite a challenge.  A court can reverse the decision of a federal agency such as the INS only if the decision is arbitrary, capricious, an abuse of discretion, or does not comport with the law as expressed by Congress.  Moreover, a court is to defer to an agency’s interpretation of a statute that it is responsible for enforcing so long as the interpretation is not contrary to the expressed will of Congress.  Under this standard, the Fifth Circuit found the INS denial of H-1B visas to these nurses to be reasonable and appropriate.  According to the Fifth Circuit, Vintage’s requirement of a BSN degree was essentially irrelevant.  What did matter was the degree requirement of the hospitals where the nurses would be working, and while Vintage was able to show these hospitals would prefer nurses with BSN degrees, they had no such requirement. 

This case deals a blow to the efforts of many hospitals to alleviate the current nursing shortage by denying them the option of one of the most useful temporary employment visas.  The decision essentially puts hospitals in a “Catch 22.” Even though nurses should have a bachelor’s degree to provide the level of service expected by the public, there are simply not enough nurses available with this credential. And because hospitals take on underqualified nurses, the INS now argues that the minimum requirement for a nurse is less than a bachelor’s degree because nurses with less than a bachelors degree are being hired. Since the H-1B visa category is designed to help employers work through temporary labor shortages, the INS philosophy essentially turns this on its head. On a slightly more positive note, however, the court did leave open the possibility that nurses in supervisory positions and nurses working in subspecialties may still qualify for an H-1B visa.