A massive shortage of nurses in this country, a global pandemic including a new variant sweeping through the country, and a recent, subtle change in how the Department of Labor (DOL) classifies the Registered Nurse occupation, together, require that we revisit the topic of nurse H-1Bs.
A February 18, 2015 USCIS memorandum states that “Most registered nurse (RN) positions do not qualify as a specialty occupation because they do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those particular positions.” This memo puts the most common professional worker status out of reach for most foreign-born nurses, even now, during a time when we most need them.
Seven years ago, USCIS recognized the changing landscape, noting in the memo that nursing candidates were increasingly pursuing bachelor’s degrees, that programs such as the American Nurses Credentialing Center (ANCC) Magnet Recognition Program were setting out high educational standards for nursing workforces, and that certain Advanced Practice Registered Nurses (APRNs), specialized nurses, and nurse managers may qualify for H-1B status.
What has changed since this memo was released?
First, using the Wayback Machine internet archive, we can see that between December 6, 2015 and January 13, 2016, the “Typical Entry-Level Education” listed for the RN category in the Occupational Outlook Handbook (a DOL resource) switched from an Associate’s degree to a Bachelor’s degree. “Entry-level Education” is defined in the OOH as the “typical level of education that most workers need to enter this occupation.” The OOH is a resource relied upon greatly by USCIS to assess H-1B specialty occupation and was weaponized during the Trump Administration to issue multiple RFEs and denials of H-1Bs.
Second, late last year, the RN SOC code was re-classified by DOL from a Job Zone 3 to a Job Zone 4 occupation. This represents an important shift from occupations that mostly require training in vocational schools or an associate’s degree (Job Zone 3) to those that mostly require bachelor’s degrees (Job Zone 4).
Third, the change in the government’s position reflects changing trends in the healthcare industry. A Department of Health and Human Services survey in 2018 found that the “proportion of nurses who graduated with a bachelor’s degree rose to 54.5 percent in the years between 2012 and 2016, compared to only 22.9 percent before 1971.” Figure 5 of this report is especially useful, since it shows the steady growth of bachelors, masters, and Ph.D.’s over time as the highest attained nursing degrees. Additionally, the Center to Champion Nursing in America created maps, which illustrate the significant growth in BSN-prepared nurses across the country from 2010 to 2018 (57% of RNs hold a BSN or higher in nursing).
To qualify as a specialty occupation, the regulations require that the position meet at least one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
For the first two criteria, two DOL resources say a bachelor’s degree is the normal minimum requirement and is common to the industry, using the related words “most” and “typical.” The third criterion may often be met, since many employers require nurses to have a bachelor’s degree. For example, August 2019 data from the ANCC reveals that for organizations with Magnet recognition, 69.58% of clinical nurses (other than APNs) have bachelor’s degrees or higher. As to the fourth criterion, increasing complexity in the American healthcare system and rapidly expanding technology have been cited as causes of increased specialization within the nursing profession. Advocacy for baccalaureate-prepared nurses has grown considerably since 2010.
According to the American Nurses Association, this year, 500,000 seasoned RNs are anticipated to retire, and there will be far more registered nurse jobs available than any other profession, at more than 100,000 per year. The U.S. Bureau of Labor Statistics projects the need for 1.1 million new RNs to avoid a nursing shortage. Given these shortages and a crippling pandemic, the Biden Administration must do more to allow foreign nurses to bring their desperately needed skills to the U.S. There are ample arguments as noted above to eliminate the 2015 USCIS memo, a simple change that would have profound positive impact on American life.