Difficulties in Obtaining H1B Status for RNs.
Who is the employer?
Can a consulting company hire nurses on an H1B Visa stating that the minimum requirement for the job is an bachelor’s?

The H1B professional category is used for "specialty occupations," positions for which a Bachelor's (or higher) degree, or the equivalent, is the minimum requirement for entry into the professional position.

While Registered Nurses (RNs) are generally considered to be professionals, RNs have had difficulty in qualifying for the H-1B status because most RN positions do not necessarily require a baccalaureate degree or its equivalent.

Generally most RNs are qualified to work based on having merely completed an Associate (2 year) degree program or a hospital diploma program. Only for certain specialized types of nursing, for example intensive care, is the Bachelor's degree the minimum requirement. However, most RN positions apparently do not require a Bachelor's degree as the minimum for working in the field.

A recent case in the Fifth Circuit of the U.S. Court of Appeals highlights this problem. In an appeal by a contracting agency and seven nurses, the court affirmed the District Court's denial of H1B status on the ground that the Registered Nurse did not meet the definition of specialty occupation because the Bachelor's degree was not the minimum requirement for the position. Where the degree is not necessarily an industry requirement, the regulations allow for an employer to have higher standards and to show that in fact its normal hiring practice is to require the degree. The contracting agency in this particular case required the degree of all RNs it hired, but the Court pointed out that the facilities with whom the nurses would be placed did not require a minimum of a baccalaureate degree for its RNs. The contracting agency also could not show that the jobs were of a more complex or specialized type that usually requires the Bachelor's degree as the minimum for the position. Therefore, the appeal was dismissed.

The implications of this case actually go beyond the RN and specialty occupation issue. The Court questioned whether a contracting agency that would be placing employees at another work location, could itself qualify as an employer. An H-1B petition must be filed by a U.S. employer. The H-1B regulations define "employer" as a person or organization having "an employer-employee relationship with respect to the employees as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." The contracting agency had the authority to hire, pay and fire the employee, but not to supervise or control the employee's work.

The law generally allows contractors to file H1Bs, but it seems the government has always been somewhat uncomfortable about contractor cases. (For another story about H-1B contractor issues, see next item.) The court did not go so far as to say that the contracting agency was not an employer, but rather stated that even if the contractor is an employer, the hospital is also an employer of the nurses, and that the hospital was a "more relevant employer." It remains to be seen whether a similar view will be taken in contract computer programmer cases.

The difficulty of qualifying an RN for H-1B status is not a new problem. At one point a special category known as H-1A was created specifically to address the shortage of nurses in health care facilities. That program expired a few years ago, but more recently Congress passed legislation establishing the H-1C nurse category for medically underserved areas. A summary of the H-1C category was included in a previous edition of The Law Office of Sheela Murthy, P.C.'s Immigration Law Bulletin.

Source: www.murthy.com

See the Nursing Kit