Contributed by Henry Chang
It is generally believed that the national shortage of nurses which occurred in the late 1980’s no longer exists in the United States. Nevertheless, local shortages still exist in many areas of the United States. This article will briefly discuss how registered nurses in Canada can obtain nonimmigrant (temporary) status in the United States.
TN Status for Canadian Citizens
The most appropriate category for Canadian registered nurses is the TN category under the North American Free Trade Agreement (“NAFTA”). The availability of TN status gives Canadian nurses a simplified procedure for obtaining entry as a temporary worker. However, the benefits of NAFTA apply only to Canadian citizens, not landed immigrants. Landed immigrants of Canada must qualify under a different category.
Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. Registered nurses require only a state or provincial licence to practice in order to establish the necessary credentials. A licence to practice in any state or province should technically establish the necessary qualifications. However, where a licence to practice as a registered nurse is required in the state of intended employment, an applicant must also have such a licence before TN status will be granted. A temporary or interim licence should be sufficient to permit entry under the TN category.
A presumption of immigrant intent applies to TN workers. This means that the TN worker has the burden of proving that she does not intend to remain permanently in the United States. The worker should be prepared show an unrelinquished Canadian residence or other significant ties to Canada.
The concept of dual intent does not apply to the TN category. In other words, a TN worker cannot intend to work temporarily in the United States and while also intending to remain permanently if her petition for permanent residence is approved. The mere filing of a petition for permanent residence may therefore result in a denial of a TN application.
TN workers can apply for status at a port of entry just prior to entering the United States. A properly prepared TN application takes only a few minutes to adjudicate. Once admitted, a TN worker is granted an initial stay of one year. Thereafter, a TN professional may request extensions of stay for one-year increments. There is currently no limit on the number of extensions that may be granted.
H-1 Status for non-Canadians
Registered nurses who are not Canadian citizens are not eligible for TN status and must apply for an H visa. Prior to September 1, 1990, professional nurses who had bachelor degrees in the field applied as professionals under the H-1B category. After that date, foreign nurses had to seek temporary status under the H-1A category. The H-1A category imposed onerous labor conditions upon the employer but did not require that the foreign nurse have a bachelor degree as a condition of eligibility.
On September 1, 1995 the five-year program which established the H-1A category expired and Congress did not act to extend the program before that date. Based on the assumption that Congress will not extend the H-1A program in the future, professional nurses should once again be eligible to apply as professionals under the H-1B category. For this reason, this article will discuss the H-1B category instead of the H-1A category.
The H-1B category is open to aliens seeking entry into the United States to work in a “specialty occupation”. However, it must first be shown that the job requires someone in a specialty occupation. It the job qualifies, it must then be established that the H-1B worker meets the requirements for the job.
The term “specialty occupation” is defined as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. To qualify as a specialty occupation, one of the following must be shown:
(a) a bachelor degree or higher degree (or it equivalent) is normally the minimum entry requirement for the position;
(b) the requirement of a degree for the position is common in the industry or the position is so unique or complex that it can only be performed by someone with a degree;
(c) the employer normally requires a degree or its equivalent for the position; or
(d) the nature of the job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor or higher degree.
If the position is a specialty occupation, the H-1B worker must then show that he or she is qualified to fill the position. To meet the requirements of the specialty occupation, the alien must possess the following:
(a) full state licensure, if required for practice in the state; and
(b) either of the following:
(i) completion of a bachelor or higher degree (or its equivalent) in the specific specialty; or
(ii) experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
For the purpose of determining equivalency to a bachelor degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the H-1B worker lacks.
In order to hire an H-1B worker, a U.S. employer must comply with several labor requirements including attesting to the fact that it will pay the greater of the actual wage paid by that employer to all other individuals with similar experience and qualifications at the place of employment and the prevailing wage for the occupation in the area of intended employment.
Approval of an H-1B petition can take up to two months. While landed immigrants having a common nationality with Canadian citizens (British citizens for example) do not require a visa, all other landed immigrants must obtain a visa from a U.S. consulate prior to entering the United States.
Obtaining a visa from a consulate can take an additional week. While pending legislation proposes to exempt all landed immigrants of Canada from the need to obtain a visa at a U.S. consulate, as of the date of this article, the legislation had not become law.
An H-1B visa is valid initially for up to three years. Extensions of up to three years at a time may be requested to a maximum total stay of six years. The H-1B worker must then remain outside the United States for at least one year before becoming eligible for H status again.
In contrast to the TN category, the concept of dual intent is specifically recognized for H-1B workers. Therefore, a registered nurse may apply for an H-1B visa while her petition for permanent residence is still pending. A registered nurse in H-1B status is also not required to show significant ties to Canada.
Conclusion
Registered nurses having Canadian citizenship clearly have a distinct advantage in temporary employment situations. Landed immigrants of Canada who are eligible for Canadian citizenship may wish to consider acquiring such citizenship prior to seeking temporary employment as registered nurses in the United States. This will also avoid the risk of losing landed immigrant status while working outside of Canada. In the alternative, landed immigrants can immediately seek permanent residence, although they will have to remain outside the United States until they obtain their immigrant visas.
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