By Jennifer Larson, NurseZone feature writer 

There may be an increase in applications by nurses for temporary work visas, thanks to guidance recently issued by the U.S. Immigration and Naturalization Service. The INS issued a guidance memo to its field offices Nov. 27 to clarify information on H-1B classification, which allows workers to obtain temporary work visas.

At the least, the memo may clear up some confusion. The added attention may also spark an increase in applications for these visas among qualified applicants, said Greg Siskind, an attorney with Siskind Susser Haas & Devine, an immigration law firm headquartered in Memphis, Tennessee.

However, while the memo did clarify for the first time when a nurse is eligible for an H-1B visa, the INS did not make more people eligible for this type of nonimmigrant work visa.

It can take as long as 18 months or more for foreign nurses to complete the traditional immigrant visa process so that they can work in the United States.

Only people who are classified as having a “specialty occupation” can obtain the H-1B visa. Specialty occupations are usually occupations that require at least a bachelor’s degree for practice. Advanced practice nurses usually qualify for an H-1B visa due to their additional training and education, and some upper-level nurse administrators also qualify.

According to Siskind, most registered nurses have not been eligible for the specialty occupation classification because almost every state only requires an associate’s degree in nursing for licensure. Only North Dakota requires its registered nurses to have completed a bachelor’s degree.

There has been no special immigration provision for nurses without bachelor’s degrees, so most have had no other recourse than to apply for a green card, which is a lengthy process.

A few nurses may apply for and receive a TN visa (available only to citizens of Mexico or Canada) or an H-1C visa.

Only 500 H-1C visas are approved each year, according to attorney George M. Sabga Jr., of San Marcos, California. Also, this type of visa cannot be extended after it expires, and it applies only to underserved areas.

Registered nurses from other countries used to be able to apply for a H-1A classification; according to a New York Law Journal article by Stanley Mailman and Stephen Yale-Loehr that was published in February 2000, this classification was created for RNs and required employers to detail the steps they were taking to “wean themselves from reliance on foreign nurses.”

The H-1A program was created in 1989, and during that time, nurses could not receive H-1B classification. However, when the H-1A program ended in 1995, it became unclear whether registered nurses would be eligible for the H-1B category.

The process and requirements haven’t really changed, but some nurses may find it a little easier to get clearance to work in the United States, now that the process has been clarified by the INS memo. Nurses with certain specializations may qualify for H-1B visas. The INS has clarified critical care and peri-operative nurses as specific examples of nurses who may qualify for H-1B visas.

Siskind said he doubted there would be a dramatic increase in the number of foreign nurses arriving in the United States in the short term, but he noted there may be a long-term increase. He said he does expect an increase in applications for H-1B visas, due to the recent attention garnered by the INS memo.

North Dakota may see an uptick in the numbers of foreign nurses working there in the coming months, Siskind added, since the state’s requirement of a bachelor’s degree makes nursing a specialty occupation.

That could be a gold rush for North Dakota, in terms of being able to procure enough nurses to fill vacancies.

“North Dakota is really going to benefit from this, and it may even become a gateway state,” Siskind said.

In fact, he is aware of some nurse recruiters already considering ways to import foreign nurses to North Dakota with a temporary work visa and then find a way to shift those nurses to other states in need of more nurses.

Nurses can apply for a permanent visa and wait for approval while working on a temporary visa, so that could be one way to spread the wealth to other states. The maximum stay allowed under the H-1B policy is six years, according to the INS.

North Dakota might even be able to market this strategy and benefit financially from it, Siskind added.

It is unclear how many additional foreign nurses will apply for or receive temporary nonimmigrant status under the H-1B program.

The INS does enforce legal limits on the number of H-1B visas issued.

The American Competitiveness and Workforce Improvement Act of 1998 regulates H-1B policy.

The act initially set a ceiling of 107,500 petitions initially valid for the fiscal year 2001, a decrease from 115,000 in 2000. However, the ceiling was eventually raised to 195,000 for fiscal year 2001 after the American Competitiveness in the Twenty-First Century Act was passed in October 2000.

The cap for fiscal years 2002 and 2003 was set at 195,000.

In fiscal year 2000, 299,000 petitions for H-1B status were filed, and 165,000 of those were for initial employment. About 137,00 of those initial employment filings were approved.

The majority of H-1B visas are issued to people working in a computer-related field.

For more information on visa applications and regulations, visit the INS’ Web site.

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