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INS ISSUES NEW RULE ON EXTENSIONS FOR H-1A NURSES
The Immigration and Naturalization Service (INS) has issued an interim regulation carrying out a law recently passed by Congress and signed by the President which seeks to extend the authorized period of stay within the United States for certain nurses. According to the INS, the new law was passed "as a response to concerns that certain geographical locations in the United States continue to experience a shortage of registered nurses." 
The H-1A nonimmigrant classification, which provided for the temporary admission of registered nurses to the United States, expired on September 1, 1995. On October 11, 1996, Congresses passed a law to extend the stay of nurses until September 30, 1997 if the nurse entered as an H-1A nuse and were within the US on or after September 1, 1995 and were still within the United States on October 11, 1996. Also, the nurse's authorized stay must have been scheduled to expire before September 30, 1997, but for the enactment of the new law. In effect, the new law overrides the 5 year statutory limit on the amount of time a nurse is permitted to stay in H-1A status.
It is important to note that the new law did not provide for the approval of new H-1A visas. It also does not cover nurses who were not employed as a registered nurse in H-1B classification on September 1, 1995 (i.e. those who were H-1A nurses, but who subsequently obtained a different nonimmigrant classification). 
The new regulation sets out the rules for nurses wishing to take advantage of the legislation. It also amends the definition of an H-1B nonimmigrant alien to reflect that registered nurses are no longer statutorily excluded from getting H-1B visas.
In order to qualify for the visa, an H-1A nurse's employer must file a Form I-129 Petition for Nonimmigrant Worker at the INS Service Center having jurisdiction over the case. Employers must submit evidence that the alien is licensed to practice as a registered nurse in the state of intended employment, that the alien was employed as a registered nurse on September 1, 1995, that the alien was in the United States on or after September 1, 1995, and, for an aline who was no longer in status on October 11, 1996, due to the 1995 sunset of the H-1A classification, that the alien was in the United States on October 11, 1996. Those "within" the United States on October 11, 1996 are deemed to include H-1A registered nurses, who, although not physically present in the United States on that date, subsequently were readmitted to the United States pursuant to an unexpired H-1A petition.
According to the INS, there are three groups of nurses affected by the regulation. The first group includes nurses currently in valid nonimmigrant status but whose stay will expire prior to September 30, 1997. Qualifying nurses will have their stay extended until September 30, 1997, upon the approval of Form I-129.
The second group of affected nurses includes those who were employed in H-1A classification as a registered nurse on September 1, 1995 and whose period of authorized stay in the United States had expired prior to the effective date of the legislation. If they meet the legal requirements for an extension, the extension may be granted through September 30, 1997, upon the approval of Form I-129. Those nurses no longer in valid nonimmigrant status due to the expiration of the H-1A classification are eligible for extension of temporary stay regardless of whether the alien continued to work as a registered nurse after September 1, 1995. Those granted an extension of status under the new regulation are considered to have maintained valid nonimmigrant status through September 30, 1997.
The third group includes those nurses with a stay expiring after September 30, 1997. These nurses are not affected by the new law and may remain in the country until the validity of their visa expires. Those admitted as nurses in the H-1B nonimmigrant classification are not affected by the new law and regulation.
The new law does not permit nurses to change employers, but it does not affect cases where there is a mere change in employer ownership or a change in work location with same employer.
H-4 spouses and children shall be accorded similar status to their H-1A spouses.
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