Goulder Immigration Law Firm

Nurse Green Cards and NonImmigrant Temporary Employment Visas

Nurses—Have Permanent Resident (“Green Card”) and Nonimmigrant Temporary Employment Visa Options

A.   Permanent Residence (“Green Cards”) for Nurses

What are the basic requirements for a worker to qualify for a green card?
Employment-based immigrant visas typically involve three main steps. First, the employer files a Labor Certification application with the U.S. Department of Labor. The purpose of the application is to test the employer's local labor market for available workers. If no qualified and available workers are located, the position is certified as open for a foreign worker.

Second, the employer files an Alien Worker Petition with the USCIS. The purpose of this petition is to verify that the foreign worker has the minimum requirements to fill the open position, and serves to classify the foreign person as eligible for a particular visa category.

Third, on the basis of the Labor Certification and Alien Worker Petition, the foreign worker makes an application for an immigrant visa at a U.S. Consulate. If the foreign worker is legally present in the U.S., s/he may instead apply for permanent resident status via a process called adjustment of status. A nurse in the U.S. can simultaneously file his/her application to adjust status to permanent resident when he employer files its petition. 

The entire process can take several years. Labor certifications can take anywhere from a month to a year depending on where in the country the application is filed. The employer’s petition can take anywhere from a month to a year. And another year to two years can be added for consular processing or adjustment of status. As explained below, however, nurses receive processing that is partially expedited.

Nurses receive special treatment in green card processing that makes the green card application process faster or easier.
Nurses seeking green cards do operate under an easier system and get their green cards faster than their counterparts in other professions. Nurses do fit into a green card category with a limited quota referred to as “Schedule A”.    In this context RN’s are distinguished from CAN’s and LVN’s (or LPN’s) who are not Schedule A and thus will require labor certification.

Most employment immigration cases require the employer to first recruit and test the labor market for qualified citizens or permanent residents and receive a labor certification from the Department of Labor that no qualified American worker is immediately available to fill the position. Only then will the employer be able to sponsor a foreign worker. While these labor certifications are often successful, they can be time intensive and do not reflect the immediate needs of the business world.

Schedule A includes nurses on a very short list of pre-certified occupations for which a labor shortage was recognized. The list is included in Schedule A of the labor certification regulations and these types of green card cases are called “Schedule A labor certifications”. The Department of Labor (DOL) has already determined that there are not enough American workers who are able, willing, qualified, and available to fill all of the openings for professional nurses.    Therefore, no test of the labor market is required and the case can be directly filed with the USCIS. This does not necessarily mean that all cases are approvable or will be handled quickly. The importance of nursing being pre-certified is that it skips the first and most time consuming part of the employment based immigration process.

Note that this pre-certification is limited in scope. It only applies to “professional nurses” (RN’s). Schedule A is not available to Licensed Practical Nurses, Nurse Assistants, or other nursing aides. Professional Nursing is defined as a course of study in professional nursing resulting in a diploma, certificate, baccalaureate degree, or associate degree. More specifically, an acceptable course of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine. Whatever training the nurse has received should result in licensure in the country in which the training occurred. This coursework may have been completed at a U.S. nursing school or an approved foreign nursing program. For an immigrant visa, it is not required that a nurse have a bachelor’s degree in nursing, only that he or she completed a professional program in nursing and have subsequently been licensed.

How does a nurse in the U.S.adjust status?
A Foreign National nurse, like any other Foreign National (“FN”), applying for permanent residence through his/her employer must be in lawful nonimmigrant status when s/he applies for adjustment of status to permanent resident and have not accumulated 180 days or more of unlawful employment or failed to maintain status for this period of time.   Generally, if a RN is in the United States, the nurse will be able to start working for the employer more expeditiously than if s/he resides abroad.

If a nurse is in the United States, then processing via adjustment of status will typically be easier and it will be possible to get authorization to work much more quickly than through consular processing. The nurse's employer files its Petition with USCIS just like if the nurse resides abroad. But a nurse in the U.S. has the ability to take the NCLEX examination. If the nurse can pass the NCLEX exam, then it is not necessary to take the CGFNS examination. Otherwise, the nurse would still need to present a CGFNS certificate or proof that the nurse has a full and unrestricted license as an RN.   A nurse in the U.S. may simultaneously file his/her applications when the employer files its petition.  [In order for the employer’s visa petition to be approved, the RN must have passed either the CGFNS exam or the NCLEX exam, or be in possession of a "full and unrestricted license" as a registered nurse in the state of intended employment. Although some states require that foreign nurses pass the CGFNS examination before taking the state RN licensing (NCLEX) examination, the number of such states is on the decline. This is because, it now possible to take the NCLEX abroad.]

Only RN’s who:

• are in possession of a full and unrestricted license in the state of intended employment;
• have passed the predictor exam given by the Commission on Graduates of Foreign Nursing Schools (CGFNS); or
• have passed the NCLEX-RN licensure exam (but do not have a license because they lack a Social Security number) may be petitioned by a U.S. employer for permanent residence.

Once the nurse is licensed by a state and the nurse is in possession of an employment authorization document (“EAD”), the nurse can begin work. This work is authorized even though the processing of the application to adjust status to permanent resident will take some time to process through to final adjudication.   License processing times vary between the states. USCIS regional service centers are required to process employment authorization documents in less than 90 days (applicants have the right to request an interim employment document at a local USCIS office if 90 days pass after applying). Adjustment applications typically take 18 to 24 months at USCIS regional service centers. A nurse still needs to present a VisaScreen Certificate prior to completing adjustment of status.

A nurse need not be in possession of a VisaScreen certificate in order to apply for permanent residence. However, s/he cannot obtain permanent residence without being in possession of a VisaScreen certificate.   No RN is exempt form the VisaScreen requirement.  RN’s who received their nursing education in the U.S., the United Kingdom, Ireland, Australia, New Zealand and Canada (except Quebec) are exempt from the English language certification, either the Test of Spoken English (TSE) or the IELTS.

If the RN is married and has children (under 21 years of age and unmarried) born abroad, these family members, if they are residing in the U.S. and are eligible for adjustment of status, should submit their USCIS Forms at the same time as the RN.

Some registered nurses who have advanced practice certifications, management skills, or practice in a nursing specialty area may be able to enter the U.S. on the H-1B Visa.

The H-1C Visa allows a nurse to enter on a temporary work visa for employment by hospitals or employers that are pre-qualified by the U.S. as having a special need for nurses that is greater than the general need across the country. However, this category is limited to only 500 nurses each year for the pre-qualified hospitals or health care facilities and so is restrictive. 

B.   Nurse Nonimmigrant Temporary Employment Visas

Overview of the most common nonimmigrant temporary employment visas for nurses:

Chart of Nonimmigrant Visa Options for Nurses

H-1A Nurse Nonimmigrant Temporary Employment Visas are no longer available
Under current U.S. immigration law, non-immigrant visa options for nurses are limited because most employers that hire nurses generally require a two year degree though most state licensing schemes do not require bachelor's degrees for a nurse license.  However, a four-year undergraduate baccalaureate degree is required for the more available nonimmigrant temporary employment visas.

Previously Congress carved out a specific non-immigrant visa category, designated H-1A, for registered nurses. This visa type did not become a permanent part of immigration law and expired on September 1, 1995, when Congress believed the shortage had subsided.

H-1B Nurse Nonimmigrant Temporary Employment Visas
H-1B visas are available for professional workers with at least a bachelor's degree who seek entry into the United States to work in a “specialty occupation.”

Certain nurses may obtain an H-1B visa, provided they will work in a supervisory or highly
specialized position, and if the petitioning employer-facility can demonstrate that it requires all the nurses   it employs in that position to possess a bachelor’s degree.

H-1B visas can be issued in 2-4 weeks using the premium processing service.  The H-1B visa is valid for an initial period of three years and may be renewed for another
three years.

Generally, H-1B Visas are not appropriate for most nursing positions in the U.S.

The H-1B "Specialty Occupation" visa is available to individuals who can demonstrate qualification in a "specialty occupation" and who are sponsored by a U.S. employer to work temporarily in the U.S. in a "specialty occupation". The INA defines a specialty occupation as "an occupation that requires:

1. A theoretical and practical application of a body of highly specialized knowledge; and,
2. A bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
3. Only 65,000 H-1Bs are granted each year. The cap was reached less than two months into fiscal year 2007 this past May; H-1B visas, for non-cap exempt employers, will not be available until FYT 2008 begins on October 1, 2006. [Non cap exempt employers may include many nurse employment opportunities, if the nurse meets the degree eligibility, including university employees and employees of non-profit and government research institutions, including numerous university and research-oriented hospitals around the country.

Nurse H-1B eligibility
USCIS has established that within the nursing profession this applies only to those nursing positions that industry standards establish as requiring a 4-year bachelor’s degree (BSN). Typically this means ICU, CCU, Charge or Supervising nurses, nurse midwives, or other nursing sub-specialties where a 4-year degree or higher is required at the facility where the alien will work and throughout the industry. Since most standard nursing positions typically only require an RN license (and it is possible to obtain an RN without obtaining a 4-year nursing degree; e.g. BNS) these standard positions do not qualify for an H-1B.

NAFTA Canadian and Mexican TN-1 Visas for Nurses
TN-1 visas are available under the North American Free Trade Agreement ("NAFTA") to Canadian and Mexican citizens for a limited group of specialty occupations. Although not uniformly recognized as a specialty occupation for H-1B purposes, registered nurses were specifically included on the list of professions for which TN visas could be used and any registered nurse position can potentially qualify.

Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. Registered nurses must demonstrate eligibility by providing a provincial or state license or Licenciatura degree. However, in order to be admitted the registered nurse must present a permanent state license, a temporary state license, or other temporary authorization to work as a registered nurse, issued by the state nursing board in the state of intended employment.

Once admitted, a worker is granted an initial stay of one year. Thereafter, a TN professional may seek extensions of stay in one year increments. There is currently no limit on the number of extensions that may be granted.

Unlike H-1B visas, TN visa holders are supposed to be able to demonstrate an intention to leave the US when they complete their TN stay. So nurses who apply for permanent residency while in the US must be very careful about traveling outside the US or applying for a TN extension after a green card application has been submitted.

H-1C Nurse Nonimmigrant Temporary Employment Visas
Due to the very limited number of H-1C visas issued annually and the other restrictions which apply to this visa classification, this option will apply to only a small minority of employers.

Late in 1999, Congress passed the Nursing Relief for Disadvantaged Areas Act, which calls for the creation of a new H-1C visa for nurses going to work for up to three years in health professional shortage areas. The 1999 law is very similar to a 1989 law that created the H-1A visa for nurses. The H-1A visa category expired.    The H-1C category authorizes up to 500 nurses per year can get the visa, but each state is limited to 25 H-1C nurses a year.

Employers interested in sponsoring nurses for H-1C visas must submit a document containing a number of attestations regarding the employment of H-1C nurses.   USCIS and the Department of Labor (DOL) regulations for the H-1C program are impacted by Congress’ restrictive definition of “facility”, thereby sharply limiting the number of H-1C qualifying hospital employers.