Facing a severe nursing shortage, one option for the United States is immigration.

But even though the federal government has given registered nurses a special designation which streamlines the employment-based permanent residency (green card) process, much would have to change for immigration to fully address the acute nursing shortage.

Under a “Schedule A” designation, registered nurses, along with physical therapists, are exempt from some of the steps that would normally be required in an employer-sponsored green card process. For example, normally a U.S. employer can only proceed with sponsoring a foreign worker for a green card if the employer first goes through a “test of the labor market” (known as the PERM Labor Certification process) and advertises for the position to determine whether there are any U.S. workers who satisfy the minimum educational/experience requirements for the offered position. If no qualified U.S. workers apply, the employer can receive “certification” and proceed with sponsoring a foreign worker for a green card based on an offer of employment for that particular position.

In the case of registered nurses, the “Schedule A” designation means the U.S. government will presume there are not enough qualified U.S. workers, and will exempt U.S. employers from having to conduct that test of the labor market. This can save anywhere from 6-12 months off of the normal employer-sponsored green card process. (Our immigration blog published a more detailed post about this process last October)

Nursing and H-1B Visas

But that might not be enough. Even for Schedule A cases, the green card process can take 12 to 18 months to complete, and, unless a nurse is Canadian or Mexican, options are limited for getting a temporary work visa allowing them to come to the U.S. and work in the interim. The most common temporary work visa is what’s known as an H-1B visa. To qualify for an H-1B visa, the offered position must be a “specialty occupation” – a position that requires a bachelor’s degree or higher in a particular field. The long-standing view of US Citizenship & Immigration Services and the Department of Labor has been that ordinary RN positions do not qualify for H-1B classification because most do not normally require a bachelor’s degree or higher in nursing (since some nurses with only an associate’s degree may qualify for entry-level RN positions. See here: https://www.uscis.gov/sites/default/files/document/memos/2015-0218_EIR_Nursing_PM_Effective.pdf.)

So, too often, employers are left with the green card process and a wait of up to 18 months as their only option.

In a glimmer of hope and perhaps a sign of things to come, there have been small changes to certain documents/resources that may portend registered nurses one day falling under the “specialty occupation” criteria – for example, the DOL’s Occupational Outlook Handbook now says the “typical entry-level education” for a registered nurse is a bachelor’s degree. And the Department of Labor’s O*NET Online, which provides general information about various occupations in the United States, reflects that registered nurses are a “Job Zone Four,” designated for positions that mostly require a four-year bachelor’s degree.

Both changes were made in the past year or two. While some attorneys report having success with H-1B petitions for registered nurses if they are able to document a particular hospital/facility, or at least a particular department therein, consistently requires a bachelor’s degree for its RNs, the USCIS memo linked above is still often relied upon as a basis to deny H-1B petitions for standard RN positions.

So healthcare employers are stuck with a dilemma: facing a shortage, invest in the 12-18+ months to hire foreign nurses through the Schedule A green card process, or gamble on restricting hiring to only nurses with bachelor’s degrees in hopes the USCIS will grant an H-1B visa. Most aren’t gambling. They’re choosing the former, leaving them at the mercy of ever-lengthening government processing times.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices.

Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.