DOL Memo on H-1A Nursing Program After 9/1/95
U.S. Department of Labor
Classification: ES/H-1A Nurses
Correspondence Symbol: TEES
Date: August 30, 1995
Directive: Field Memorandum No. 65-95
To: All Regional Administrators
From: Barbara Ann Farmer
Administrator for Regional Management
Subject: Processing of Application for Nonimmigrant
Registered Nurses after September 1, 1995
1. Purpose. To provide guidance on the processing of attestations and applications for registered nurses after the expiration of the H-1A Nursing Program on September 1.
2. Reference. 20 CFR Part 655.
3. Background. The H-1A Nursing Program for nonimmigrant nurses sunsets on September 1, 1995. To date, Congress has not taken any action to extend it. After the H-1A visa classification expires, foreign registered nurses and their employers will turn to other nonimmigrant visa classifications as possibilities for admission; specifically, the H-1B classification for specialty workers and the H-2B classification for temporary nonagricultural workers.
Under the H-1B Classification, the Department, by statute and regulation, can only review labor condition applications for completeness and obvious inaccuracies. When the H-1A classification expires, the prohibition in the statute against registered nurses being admitted under the H-1B classification also expires. ETA Regional Offices cannot reject H-1B labor conditions applications as being "obviously inaccurate" because the occupation does not always require a bachelor's degree for entry. Many nursing position require the incumbent to hold a bachelor's degree and regulations of the Immigration and Naturalization Service (INS) provide that aliens can either hold a baccalaureate or the equivalent to qualify for entry as a registered nurse under the H-1B visa category. The Immigration and Naturalization Service, not DOL, determines whether the occupation and the alien qualify under the H-1B classification.
The H-2B Classification can rarely be used by a registered nurse because the nature of the work must be temporary. Positions for registered nurses are almost always permanent in nature. Employment with temporary agencies or registries (contractors) to do short-term nursing assignments at different locations does not qualify as temporary employment under the H-2B classification. The position with the contract is considered permanent in nature. An example of a situation that could qualify would be direct employment in a private household to care for a terminally ill patient who requires registered nursing care.
4. Action Required. Regional Administrators are requested to instruct Certifying Officers as provided below.
A. Regions I, V, VI, and X.
(1) Process an H-1A attestations received on or before September 1, 1995, under existing H-1A regulations and procedures.
(2) Reject any H-1A attestations received after September 1, 1995, even if they are resubmittals of previously rejected attestations with the explanation that the program expired on September 1.
(3) Follow records retention procedures in Field Memorandum No. 21-93 for maintaining H-1A files.
B. Regions I through X.
(1) Process any H-1B LCA submitted on or after September 2, 1995, on behalf of registered nurses in the same manner as any other LCA.
(2) Consult with the Division of Foreign Labor Certifications before approving any H-2B applications for registered nurses until further notice.
5. Inquiries. Direct questions to Denis Gruskin on 202/219- 4369.