Temporary (Nonimmigrant) Visas

H-1A/H-1B NONIMMIGRANT VISA FOR NURSES

Generally

Overview of the H-1A & H-1B categories for nurses

The H-1A visa category was established in September 1990 for people who wished to enter the United States to work as nurses. This category allowed people to enter as foreign nurses for temporary periods in new employment situations. The maximum period of stay was five years. H-1A Classification expired on September 1, 1995. Today, the H-1B visa category replaces the H-1A category. All H-1B requirements apply to those petitioning foreign nurses to work in the United States. The Labor Condition Application attestations and licensure standards must be met. The maximum length of stay is six years.
See H-1B nonimmigrant visa.

Eligibility

You must be seeking employment in the United States as a nurse.

The work must be in a "specialty occupation." To show that a nurse qualifies as a "specialty occupation" the employer needs to show that he has required the services of individuals with bachelor's or higher degree for the available nursing position; or that similar facilities require the services of individuals with a bachelor's degree or higher for parallel nursing positions; or that the available nursing position is a specialty occupation in view of its complex and specialized duties.

Nurses are a category of health care workers.

You must submit credentialing requirements. Credentials include presenting certification from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent independent credentialing organization approved by the INS. However, currently nurses do not need to obtain the certification. This policy will continue until the rule of certification is finalized. Note: Foreign health care workers, including nurses, who do not obtain a certification can only be admitted to the United States for one-year. At the end of the one-year the foreign nurse needs to apply for an extension of stay prior to the end of the one-year period of stay. Additionally, foreign nurses in the United States who want to change their status to the H-1B category or an extension of H-1B stay may be granted the waiver for obtaining the certification without filing an additional form or fee. These foreign nurses can be admitted for H-1B stay or an extension of stay for up to one-year.

The certification that foreign nurses will have to obtain under the CGFNS must show that the education, training, license, and experience meet all requirements for entry under the nonimmigrant category or employment based preference category specified in the petition and are comparable with that required for a United States health care worker of the same type; that you are competent in oral and written English as demonstrated by passing a nationally recognized exam; and that you have passed a licensing exam which is recognized by a majority of states licensing the profession in which you intend to work (if such a licensing exam exist).

You must obtain a license if a majority of states issue licenses for a specific profession. If the state where you intend to work does not require a license to comply with the job duties of the profession you still have to obtain a license

Authorized Period of Stay

How long can I remain in the United States as a foreign nurse under an H-1B visa?

The maximum period of stay is six-years.

The initial H-1B petition is granted for three-years. Extensions of stay are granted up to three additional years

What if I filed an H-1A petition after the H-1A program expired?

If you are an H-1A nurse present in the United States since September 1, 1995 and your period of unauthorized stay has expired or will expire prior to September 30, 1997 you are allowed to extend your status up to that date.

If you are an H-1A nurse and have filed an extension of stay as of September 30, 1997, your request will not be reviewed under the H-1A program. You will need to file an H-1B petition or change your status

H-1A - Employer Responsibilities

What if I am currently in the United States employed as a foreign nurse and have H-1A status? What are the employer's responsibilities?

If the employer continues to employ H-1A nurses then the employer is still responsible for all of the terms and conditions of the labor attestation application.

Under the H-1A program, the employer was required to comply with six attestations that he signed.

The first attestation required the employer to show that, through no fault of his own, he would have suffered substantial disruption in services without the use of foreign nurses. The evidence that the employer must present includes documentation that he has not laid off United States workers during the twelve month period before the date of the attestation which he submitted. To show substantial disruption, the employer must present evidence that demonstrates that a vacancy rate for nurses of seven percent or more existed in his facility; that his facility was unable to use seven percent or more of its beds because of insufficient nurses; that the facility eliminated essential services because of the lack of nurses; or that the facility has been unable to implement plans for new services because of the lack of nurses. The employer should also include documentation about the large number of H-1A nurses it employed, the projections in staffing shortages, and his efforts to recruit and retain United States nurses.

The second attestation required the employer to show that the employment of foreign nurses will not have an adverse effect on the wages or working conditions of United States workers. The employer must demonstrate that he pays each of his nurses the leading wage for the occupation in geographic area. He must also summarize the pay schedule and compensation package for nurses, and have detailed backup evidence of these summaries. If the wage rate changes while the H-1A nurse is employed the employer must make the adjustment to the salary.

The third attestation required the employer to show that foreign nurses will be paid at the leading wage rate for that facility. The employer must have documentation of the factors used to determine compensation for nurses and must summarize their pay schedules.

The fourth attestation required the employer to show that it has taken, and is taking, timely and significant steps to recruit and retain United States workers in order to remove its dependency on nonimmigrant nurses. The employer must show that he has a training program at the health facility or is funding such a program; that he is providing career development programs for other employees to enter the nursing profession; that he is paying nurses above the leading rate in the geographic area; that he providing adequate support services to relieve nurses from the performance of non-nursing duties; that he is providing reasonable opportunities for salary advancement within the profession; that he has monetary incentives for its nurses for additional education and for activities leading to the recruitment and retention of United States nurses; that he is providing special services or nonmandatory work schedule options to nurses; or that he is providing training opportunities for United States workers not currently in health care occupations.

The fifth attestation required the employer to attest that its need for nonimmigrant nurses is not due to a strike or lockout, or because it has laid off other nurses, and that the employment of nonimmigrant nurses is not intended to influence an election for a bargaining representative for nurses of the facility.

The sixth attestation required the employer to notify the nurses' bargaining representative whenever an attestation or individual H-1A petition was filed; when no bargaining representative exists, the facility must post a notice of such a filing in a conspicuous area of the facility.
H-1A nurses can still file complaints against the employer for violating any of the above attestations on or after September 1, 1995.

H-1B - Employer Responsibilities

What basic requirements must the employer follow under the H-1B visa?

The employer must obtain certification of a labor condition application from the Department of Labor. A certified application must be filed with the H-1B petition or the petition will be denied.

The employer must attest that he will pay the required wage rate to the H-1B nurses employed. He must attest that the employment of H-1B nurses will not adversely effect the working conditions of workers similarly employed in the area of intended employment. He must state that at the time of filing the labor condition application, there is no strike or lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment. If a strike or lockout occurs after the labor condition application is submitted, the employer will notify the Department of Labor within three days of its occurrence and the labor condition application will not be used in support of H-1B petitions filed with the INS until the Department of Labor determines that the strike or lockout has ceased. The employer must attest that he has provided, or will provide, a copy of the labor condition application to each H-1B nurse employed pursuant to the labor condition application, and the employer has also provided notice of the filing of the labor condition application to the bargaining representative of the employer's employees in the occupational classification. If there is no bargaining representative, the employer must state that he has physically posted notice of the filing of the labor condition application on the employer's premises or has provided electronic notification of the filing to all similarly employed workers.

The employer must have established a public access file within one business day of filing the labor condition application. The public access file must be made available upon request to any member of the public. The file must be maintained at the employer's principal place of business in the United States, or at the place of employment. The public access file must include a copy of the labor condition application form, Form ETA 9035; a statement of the actual current rate of pay for the H-1B worker; the prevailing wage determination, including a description of the source and methodology for the prevailing wage; a memorandum by the employer explaining the actual wage determination; and evidence that the notification requirement regarding filing of the labor condition application has been met. In the public access file the employ must keep updated information regarding the actual rate of pay for the H-1B worker. Other documentation that the employer must keep, but does not need to be made available to the public is, payroll records regarding all of the employer's employees in the same occupation at the place of employment; a calculation of the actual wage rate paid to the H-1B worker making use of the employer's pay system described in the actual wage memorandum included in the public access file; the raw data backing up the prevailing wage determination included in the public access file; documentation regarding fringe benefits plans provided to workers; and evidence that the H-1B worker has been given a copy of the labor condition application, which must be done on the date that employment begins.

Extensions of Stay

What if I want an extension of stay on my petition?

Extensions of stay are possible until the maximum period of H-1B admission has been reached. The maximum length of stay is six-years.

If you spent time in H-1A status during a period of stay then that time is added to time spent in H-1B status. This will be have an impact on whether your limit of stay has been reached.

If you have worked in H-1A status as a nurse for five years the change of status request will be approved for an additional year. A new H-1B petition cannot be approved once the maximum period is reached. To consider the new H-1B petition you must reside and be physically present outside of the United States for a minimum of one-year.

See H-1B NONIMMIGRANT VISA for renewal of visa, family member visas, change of employment, change of employers.