INS Memo on Registered Nurses for H-1B Classification

November 17, 1995

HQ 214h-C

Eligibility of Registered Nurses for H-1B Classification

All Center Directors Office of Adjudications
Director, Service Center Operations (HQADN)
Director, HQAAO
All District Directors
All Officer-in-charge

The sunset dare for the filing of petitions for H-1A nonimmigrant classification was September 1, 1995. On August 28, 1995, this office issued a memorandum advising that petitions for H-1B nurses may be approved if all statutory and regulatory requirements, including those relating to the labor condition application and state licensure, for the H-1B classification are met. Service officers are reminded that, pursuant to the statutory definition of a specialty occupation found in section 214(i) of the Act, a registered nurse seeking H-1B nonimmigrant classification must have attained at least a bachelor's degree or its equivalent. In addition, under section 214(i), the minimum entry requirement for the registered nursing position to be filled is attainment of a bachelor's degree or its equivalent in the specialty.

Based on the foregoing, not every alien who qualified under the now expired H-1A classification will be eligible for H-1B classification. In fact, it does not appear that many H-1A nurses will be eligible for H-1B classification. According to the Department of labor's Occupational Outlook Handbook (OOH), there is no industry-wide standard that a registered nurse have a baccalaureate degree to perform the duties of a professional registered nurse. The publication goes on to state that in many states a nurse can obtain a professional registered nursing license after completion of only a two-year program and successful passage of a state licensing examination. The OOH also notes that there have been attempts made to raise the educational requirements of the occupation to a baccalaureate degree, but these efforts have been without success.

Situations may arise, however, where a petitioner may be able to establish that it, in the past, has hired as registered nurses only those possessing a bachelor's degree or higher. In these situations it may be possible for the petitioner to argue that its nursing positions require a registered nurse with a baccalaureate degree. This decision must be made on a case-by-case basis after examining the petitioner's past hiring practices and the hiring practices of similar hospitals.

In addition, eligibility may also be established in those situations where it can be established that the state licensure requirement for the occupation is a minimum of a bachelor's degree.

Finally, Service officers should no longer rely on the finding in Matter of Gutierrez, 12 I&N Dec. 418. (Dist. Dir. 1967) to support the conclusion that registered nurses are eligible for H-1B classification. The decision was effectively superseded by the statutory language of section 214(i) of the Act.

For further information, please contact John W. Brown, Adjudications Officer, Headquarters Adjudications, at (202) 514- 3240.

Michael L. Aytes
Acting Assistant Commissioner