Professional nurses may apply under either the TN (if they are Canadian citizens) or H-1B category. The requirements for TN and H-1B are briefly discussed below. However, it is recommended that readers also refer to the detailed general discussion section relating to the TN and H-1B categories.
TN Status for Nurses Having Canadian CitizenshipThe most appropriate category for Canadian registered nurses is the TN category under the North American Free Trade Agreement (“NAFTA”). The availability of TN status gives Canadian nurses a simplified procedure for obtaining entry as a temporary worker. Even professional nurses other than registered nurses may qualify for TN status as a medical technologist, which is also a listed profession in Appendix 1603.D.1. However, the benefits of NAFTA apply only to Canadian citizens, not landed immigrants. Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. In contrast to the H-1B category, registered nurses require only a state or provincial licence to practice in order to establish the necessary credentials. A licence to practice in any state or province should technically establish the necessary qualifications. However, where a licence to practice as a registered nurse is required in the state of intended employment, an applicant must also have such a licence before TN status will be granted. A temporary or interim licence should be sufficient to permit entry under the TN category. TN workers can apply for status at a port of entry just prior to entering the United States. A properly prepared TN application takes only a few minutes to adjudicate. Once admitted, a TN worker is granted an initial stay of one year. Thereafter, a TN professional may request extensions of stay for one-year increments. There is currently no limit on the number of extensions that may be granted.
H-1 Status for Nurses Not Having Canadian CitizenshipRegistered nurses who are not Canadian citizens are not eligible for TN status and must apply for an H visa. Prior to September 1, 1990, professional nurses who had bachelor degrees in the field applied as professionals under the H-1B category. After that date, foreign nurses had to seek temporary status under the H-1A category. The H-1A category imposed onerous labor conditions upon the employer but did not require that the foreign nurse have a bachelor degree as a condition of eligibility. On September 1, 1995 the five-year program which established the H-1A category expired and Congress did not act to extend the program before that date. However, professional nurses are once again be eligible to apply as professionals under the H-1B category, provided that they meet the requirements thereof. The H-1B category is open to aliens seeking entry into the United States to work in a “specialty occupation”. However, it must first be shown that the job requires someone in a specialty occupation. It the job qualifies, it must then be established that the H-1B worker meets the requirements for the job. The term “specialty occupation” is defined as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. To qualify as a specialty occupation, one of the following must be shown:
- a bachelor degree or higher degree (or it equivalent) is normally the minimum entry requirement for the position;
- the requirement of a degree for the position is common in the industry or the position is so unique or complex that it can only be performed by someone with a degree;
- the employer normally requires a degree or its equivalent for the position; or
- the nature of the job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor or higher degree.
- full state licensure, if required for practice in the state; and
- either of the following:
- completion of a bachelor or higher degree (or its equivalent) in the specific specialty; or
- experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
New H-1C Category for Professional NursesOn November 12, 1999, the President signed the Nursing Relief for Disadvantaged Areas Act of 1999 into law. In order to qualify for an H-1C, nurses must:
- Have a full and unrestricted license as a nurse in their home countries or must have been educated in the United States;
- Pass an appropriate examination (to be determined by HHS), or have a full and unrestricted license to practice as an RN in the state of intended employment;
- Must be fully qualified and eligible under all state laws and regulations to practice as an RN in the state of intended employment immediately upon admission to the United States.
- The employer is a hospital (as defined under the Social Security Act) and is located in a designated health professional shortage area, has at least 190 acute care beds, and that, since 1994, has had at least 35% of its patients entitled to Medicare, and at least 28% Medicaid;
- Employment of the nurse will not adversely affect wages and working conditions of similarly employed nurses;
- The nurse will be paid the same rate as other registered nurses similarly employed at the facility;
- The facility has taken and is taking timely and significant steps to recruit and retain U.S. citizen or immigrant registered nurses, including (without limitation):
- Operating a training program for nurses at the facility or financing (or providing participation in) a program elsewhere;
- Providing career development programs and other methods to encourage other health care workers to become registered nurses;
- Paying a wage to registered nurses higher than the prevailing wage;
- Providing “reasonable opportunities for meaningful salary advancement” by RNs.;
- There is no strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility with in the 90 days before and the 90 days after the date of filing a visa petition for the H-1C nurse and the employment of an H-1C nurse is not intended or designed to influence union activity (layoff means loss of employment other than through discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or expiration of a grant or contract but does not include any situation in which the work is offered, as an alternative to termination, a similar employment opportunity with the same employer at equivalent or higher compensation and benefits, regardless of whether the alternative job offer is accepted).
- Notice of the filing is provided to the bargaining representative for registered nurses at the facility or, if no bargaining representative, has been posted to employees in conspicuous locations;
- That the facility will never employ H-1C nurses as more than 33% of its total registered nursing staff;
- The H-1C nurse will not work at any worksite not directly controlled by the employer or transfer the H-1C nurse to another worksite during the course of the nurse’s employment.